General Terms and Conditions of Business (AGB)

2. Software

The subject matter of this section is the provision of the software application "gastronovi Office" (hereinafter referred to as the "Software") and additional services.

2.1 Subject matter of the contract / services

1. gastronovi Office offers a Cloud-based software solution (SaaS) that models processes in the food and drink industry using a range of different modules. Data are saved centrally in certified German data centres which carry out daily server backups.
2. Some of the modules can be ordered on a weekly, monthly, annual or per-use basis. The scope of functionality of the ordered software modules can be found in the offer confirmation and the description on the gastronovi website here.
3. By concluding a contract for trial use using a test account, gastronovi allows the Customer to use the software for 14 days solely for test purposes (test period) beginning at the time when access to the Software is issued or the login data are provided (test period). A Customer is entitled to only one test period. Once the test period has elapsed, the Customer's account will be blocked and, following a 3 month retention period, the data will be deleted. There is no automatic conversion into a contract for use of the Software for a fee. After the test period has elapsed, the Customer can choose to conclude a contract with gastronovi for use of the Software for a fee. The data (from the test account) can then be imported.
4. The Customer can use the Software to control its business processes in the food and drinks industry sector. The Software is installed on a server accessible over the Internet. The Software is "browser-based", via an app or interface (API). The Provider also offers the Customer space for storing internal application data generated by the Software, e.g.: menus, recipes, etc. During the term of the agreement, the Provider will set up, operate and maintain the connection between the server and the Internet so that the server data is transmitted at the Customer's request to the Customer's computer over standard Internet protocols (see 2.5.).
5. The Software also provides the Customer with functions with which they can present themselves online. These services are provided by the Provider via the domain services.gastronovi.com. The Provider also offers the Customer storage space by means of which the Customer can showcase its company ("Website") to the general public over the wired and wireless Internet.
6. The scope of the program and storage package match the description in the order confirmation, price- and module list, and - where applicable - the module description for the Software.
7. With the Software, the Provider offers third-party interfaces (integrations), which can be used by the Customer to utilise the data and/or services of third parties (in particular, suppliers, payment system, hotel software). The Provider only provides one software interface in each case. The information and offered services made available via these interfaces are third-party information and services. These information or services do not belong to the Provider.
   1. The Provider does not assume any responsibility for the accuracy of the third party information (in particular, article descriptions, prices, discounts, LMIV data (allergy and additives, information about nutritional content)).
   2. By using these interfaces and opting for third party modules, the Customer accepts that data will be sent from the Software to the third party offering the services in question.
   3. The Provider does not assume any responsibility for services offered by third parties.

2.2 Use of the Software

1. The Software is used with the aid of the Customer's internet connection at the interconnection point. The "Interconnection point" for the Software and the Customer’s application data is the proxy server (main entry point for the underlying cloud structure) of the Provider, which is accessed via a browser or an "app" from a public "store" (e.g., Google Play Store, Apple App Store), or an interface ("API").
2. The Software cannot be used without creating a customer account (in the following: the “Account”) first. To create this Account, the required information and a password must be specified. When confirming the new account, the Customer initially submits a binding offer to enter into a contract on the use of the Software for test purposes and at no cost (test account). Gastronovi can (legally) accept this offer by setting up and allowing access to the Account or by sending a message to the entered email address with the login data for the Account that was set up. If there is an order confirmation (for this Customer), the test account will be automatically converted into an (regular) account.
3. The Provider shall provide the latest version of the Software on one or more central data processing system(s), hereinafter referred to as the "Server", for use in accordance with the following provisions from the time agreed in the order confirmation.
4. The Provider sends the Customer the access data for the Software. The Customer must change all user names and passwords to names and passwords known only to them.
5. The Provider keeps on the Server the data generated by the Customer through the use the Software (hereinafter referred to as the "Application data") and storage space from the time agreed in the order confirmation. Further details on storage space and application data are agreed as per the module descriptions or in the order confirmation.
6. Since it is to be expected that personal data will be among the data to be processed on the server this constitutes commissioned data processing. Further details are governed by the separately concluded agreement on commissioned data processing.

2.3 Using the email service

If the Provider offers the sending of emails, the following shall apply:

1. The limitations on storage space, data traffic and number of inboxes specified in the purchase order and (of lower ranking than the purchase order) in the module description valid at the time of the order shall apply. If neither the module description nor the purchase order provide for limitations on the storage space available for email traffic, the storage space made available for use by the Customer on the Provider's server shall be limited to 5 GB (5,000 megabytes).
2. Sending "Spam mails” (unauthorised, unwanted marketing to third parties) is not permitted. The Customer is required to provide their correct identity whenever sending emails and, in the case of commercial correspondence, to make this apparent through a suitable email format.
   If the Customer sends spam mails from, or if there are reasons for assuming that an outgoing email contains harmful software (viruses, worms or Trojans etc.), the Provider may temporarily block the inboxes on the email server. Insofar as an internet address is named or linked to in a spam email, which the Provider is managing, the Provider may temporarily block the domain or the content.
3. The Provider has the right to reject incoming emails if there are reasons for assuming that an email addressed to the Customer contains harmful software (viruses, worms or Trojans, etc.), the sender's information is false and/or disguised or the email is spam.

2.4 Storage space / web hosting

1. The Provider shall provide the Customer with the storage space described in the module description in terms of the data volume in megabytes (MB) in accordance with the following provisions which apply to any storage medium (e.g. hard disk) for use within the scope of the following Terms and Conditions. If a larger storage medium is required, the Provider shall provide additional storage space for a fee by means of a separate agreement.
2. The Provider shall provide the Customer with the storage space in the cloud infrastructure, i.e. storage space on several storage media which are also used or usable by other customers, but which are assigned one or more IP address(es) of their own and thus appear to third parties as independent servers.
3. The Provider shall establish and maintain the connection between the server and the Internet so that the data stored on the server is sent to the requesting computer at any time and without disruption at the request of external computers over the internet (clients) by means of commonly-used internet protocols in the applicable protocol (see 2.5.).
4. The Provider shall endeavour to ensure that the data stored by the Customer in conformity with the contract (in particular, the content of the Customer website/content on services.gastronovi.com) are available to the public around the clock on the world wide web via the network maintained by the Provider and its internet connection. The Provider does not assume any responsibility for successful access to the website, if the network used is not exclusively that operated by the Provider, including interfaces to third-party networks.
5. The Provider shall also ensure that the Customer is able to access the server at all times (within the limits on server availability, as per 2.5). For this purpose, the Provider shall assign the Customer a user name and password, with which the customer can independently save, change, supplement or delete its data stored within the scope of the Software by means of data transfer. The Provider shall allow Customers the ability to change their password.

2.5 Server availability

1. The web server is operational 24 hours a day, seven days a week with an annual average availability of 97.5%. This excludes previously announced downtimes due to maintenance and software updates as well as times during which the web server is unavailable due to technical or other problems that are beyond the control of the Provider (force majeure, fault of third parties, etc.). Web server availability does not cover the availability of the server over the Internet. The Provider is only responsible for this to the extent that the Provider creates and maintains the connection between the Server and the Internet.
2. Planned non-availability: The Provider is entitled to maintain the Software and/or Server, and to carry out data back-ups or other work. Planned periods of non-availability must be agreed with the Customer. When there are important reasons for doing so, the Customer shall not unreasonably refuse its consent. The Customer hereby gives its consent to a planned period of non-availability on the first Monday of every month of the entire contractual term, from 2 am to 6 am. If the Provider carries out this maintenance work, these downtimes are not credited as per 2.5.1 of the Terms and Conditions. When and to the extent that the Customer is able to use the Software during these periods of planned non-availability, the Customer is not legally entitled to be able to do so. If, during periods of planned non-availability, interruptions or stoppages to the service arise, the Customer does not have any liability claims for defects, nor to damages nor any claim to a reduction in the fee.

2.6 Customer content

1. The following shall apply to the extent that the Customer makes its own content accessible to third parties remotely or to the general public over a wired or wireless connection by means of the Software (for example via its own website or via the Portal services.gastronovi.com or in some other way) and/or uses the resources provided by the Provider:
   1. The Customer must comply with statutory provisions, in particular those relating to the protection of minors, and shall respect all copyrights, trademark rights and naming rights, as well as personal rights and other rights of third parties when posting their own content. The Customer must not post any racist, discriminatory, pornographic or politically extreme content.
   2. The Provider is not required to check and/or advise on the accuracy, completeness and legal admissibility of the content posted by the Customer.
   3. The Customer is liable in relation to the Provider for damages incurred by the Provider due to inaccurate content or content that violates legal standards for which the customer is responsible. In this case, the Customer is obliged to indemnify and hold harmless the Provider from claims for damages and reimbursement of expenses of third parties caused by the infringement. The obligation to hold the Provider harmless includes the obligation to indemnify the Provider from all legal defence costs (court and legal fees, etc.). Other claims of the Provider, in particular to block the content and to an extraordinary termination, shall remain unaffected.
   4. The Provider is entitled to suspend the connection between the website and the Internet (block the website) if there is a reasonable suspicion that the website contains illegal content according to 2.6.1. above, on the basis of a warning from the alleged injured party or investigations by state authorities, unless the warning is obviously unfounded. Where technically possible and reasonable, the block must be limited to the alleged incriminating content. The Customer shall be notified immediately of the block, giving reasons, and shall be requested to remove the presumed incriminating content or to demonstrate and, where appropriate, prove the legality of such content.
2. The Customer themselves transfers their content to the Provider's server. If the Customer needs support and/or wants to create their own design templates, this shall be based on a separate agreement (offer confirmation).
   1. The Customer shall grant the Provider the following rights of use to the content:
   2. The contents of the website are protected for the Customer in individual cases under copyright law (as a work, collective work, database work, computer programme, photograph, database, via related accomplishment-related protection rights or rights derived from the aforementioned rights), German Art Copyright Act, German Trade Mark Act or via other protective rights ("protected content"). The Customer grants the Provider the non-exclusive right, limited in time to the duration of the contract, which is non-transferable, limited to the location of the respective server (for backup copies: to where they are kept), to reproduce the protected contents for the purposes of this contract on the Server, on another server used for mirroring purposes, and for a sufficient number of backup copies.
   3. The Customer grants the Provider the non-transferable, global, non-exclusive right, limited in time to the duration of the contract, to make the protected content available to the public via the network maintained by the Provider and the internet connected to it in such a way that members of the public can access the website from a place and at a time chosen by them and can store this data by downloading it from the Provider's Server. If, after the contract has ended, protected content is stored by third parties in a cache (for example, by search engines), this Provider will no longer be responsible for this content.

2.7 Software updates

1. The Customer is obliged to use the latest version of the Software. In so far as the Provider issues software updates without extending functionality as part of software maintenance, this Agreement shall apply. The Provider will notify the Customer of any update (performance of maintenance).
2. If the Provider develops new modules for the Software, the Provider shall offer them to the Customer for use. Unlike updates, new modules are parts of the program with additional software functionality. The Provider shall notify the Customer of the new software module at the latest at the point it becomes available, and offer it for use. If the Customer wishes to use the new module, the provisions of this Agreement shall apply.
3. The Provider shall further develop the Software on an ongoing basis.
   1. The Provider is permitted to make changes without prior consent (automatic updates) provided that the functionality of the Software is not impaired as a result. These updates shall be logged in the change log and can be viewed at any time.
   2. If the provision of a new update is accompanied by a change in the functionalities of the Customer's work processes supported by the Software, the Provider shall announce this in text form at least four weeks before such a change is to come into effect.
   3. If a new version involves a limitation of functionalities (a functionality is removed and is not replaced by an equivalent functionality) and/or restrictions in the usability of previously generated data, the Provider shall notify the customer in text form no later than three months before such a change takes effect and give the customer the opportunity to object to the change in text form with a reasonable notice period of at least three months and thereby terminate the contract for use of the Software. If the Customer fails to object to the change in text form, the amendment shall become incorporated into the contract. The Provider will draw the Customer's attention to the aforementioned deadline and the consequences of missing the deadline whenever changes are announced.
   4. If the Provider has notified the customer of a change in accordance with the foregoing 2.7.3.3 before expiry of the notice period under 2.13.4 and neither party terminates the contract, it shall apply from the start of the new contract period.

2.8 Prices and payments

1. The remuneration for the services to be rendered for granting use of the Software and possibly other services shall be agreed with the purchase order and order confirmation.
2. The Provider provides other services on a cost-basis as per the Provider's general price list applicable at the time of the engagement on the basis of an individual agreement with the Customer.
3. Remuneration plus value added tax at the applicable statutory rate is owed.
4. For licenses for one year or more, the remuneration is paid in advance.
5. Monthly prices are payable pro rata for the remainder of the calendar month, commencing on the day of the provision of the operational service. Afterwards, payments are to be made in advance per calendar month. If a price is to be calculated for a part of a calendar month, it is calculated per day at 1/30 of the monthly price.
6. Weekly licences and sales-based licences are calculated and invoiced at the end of the month. A weekly licence always runs from Monday to Sunday.
7. Hardware must be paid for in advance.
8. A Customer is not allowed to offset claims with counter-claims, unless such a counter-claim is not under dispute or has final, res judicata effect.
9. The Provider generally creates and sends invoices electronically. Paper invoices can be sent by regular mail for an extra fee.
10. If direct debit has not been agreed, the invoice amount must be credited to the bank account stated in the invoice no later than the seventh bank working day after receipt of the invoice.
11. If the Customer is at least 14 days in arrears in making payment, the Provider will be entitled to block the Customer's access to the Software until the default has ended after issuing an advance notice and setting a deadline for payment of at least three days in text form. The Provider reserves the right to assert a right of retention over the Software also on account of arrears in making payments for services, support costs and hardware services.
12. The Provider reserves the right to change the agreed remuneration effective from the end of the relevant contractual term.

2.9 Customer duties

1. The Customer will meet all obligations necessary for the performance of the contract. In particular, the Customer must
   1. make sure that the technical prerequisites for proper functioning of the software are met at its end, in particular, a quick and stable network connection (see also 2.10. 1) and ensure that the hardware used meets the state of the art;
   2. require that the employees and service providers to whom it grants access to use the Software comply in turn with the provisions of this Agreement which are applicable to them, and ensure that they continue to comply with this obligation;
   3. take the necessary precautions to prevent unauthorised persons from using the Software by means of the access data given to it, its employees or service providers.
   4. to refrain from retrieving or causing to be retrieved any information or data without authorisation or to interfere or allow interference with any programs operated by the Provider, or to intrude or encourage unauthorised intrusion into the Provider's data networks;
   5. to refrain from misusing the exchange of electronic messages possible within the framework of the contractual relationship and/or using the Software for the unsolicited sending of messages and information to third parties for advertising purposes;
   6. ensure that (for example when third-party text/data are sent to the Provider's server) all rights of third parties to the material used by it are respected;
   7. Meet its obligations under 2.6. and 5.;
   8. not otherwise use the software for racist, discriminatory or pornographic purposes, which put minors at risk, or for politically extreme or otherwise unlawful purposes or in breach of official regulations or requirements;
   9. Checks data and information for viruses and use state-of-the-art anti-virus applications before sending data and information to the Provider.
2. In the event of a breach of these obligations, the Customer shall indemnify the Provider from claims by third parties based on the use of the Software by it or its employees in breach of his duties and to compensate the Provider for any loss(es) arising from a breach of an obligation.

2.10 Customer obligations

1. The Customer shall fulfil all obligations which are necessary for the performance of the contract and the use of the Software, in particular
   1. provide the Provider with an up-to-date personal email address for inquiries, in particular for urgent matters;
   2. meet the minimum requirements on the infrastructure (e.g. an internet connection) for using the software and the system requirements (in terms of the item of equipment used to use the Software). The Customer must ensure that these requirements are met at all times. The current minimum requirements can be found on the Provider's website;
   3. Maintain the confidentiality of the user and login authorisations assigned to it, its employees and service providers, protect them from access by third parties and to refrain from passing them onto unauthorised third parties. These data must be protected using suitable, commonly used measures. The Customer shall inform the Provider without delay if there are grounds for suspecting that unauthorised persons may have become aware of login and password information;
   4. If the Customer sends data to the Provider in order to generate application data using the Software, the Customer shall make regular and appropriate back-ups of the data and make its own daily back-up copies in order to enable the data and information to be restored in the event of loss;
   5. if and to the extent that it has been given the technical capability by mutual agreement to regularly back up the application data stored on the server by downloading it;
   6. to uphold its obligations pursuant to the German Anti-Money Laundering Act.
2. After termination of the contract, the customer shall by download and back up its data (whether it be application data or content made available for retrieval over the Internet) from the Provider's server.

2.11 Rights and obligations for defects

1. The Customer shall notify the Provider immediately of any defects in contractual performances, in particular defects in the services according to 2.1.6. of these Terms and Conditions. If the Customer fails to notify the Provider in a timely fashion for reasons for which the Customer is responsible, this shall constitute contributory causation and/or contributory negligence. In as much as the Provider was not able to take remedial action as a result of the omission or delay of the notification, the Customer is not entitled to reduce the remuneration according to 2.8. of these Terms and Conditions; nor demand the compensation for the damage caused by the defect, nor to extraordinarily terminate the contract for reasons of the defect without observing a notice period unless the Customer is not responsible for the failure to notify.
2. The Provider must remedy the software defect without delay.
3. Termination by the Customer pursuant to § 543 (2) sentence 1 no. 1 of the German Civil Code (BGB) due to being deprived of use in conformity with the contract is only permissible if the Provider was given sufficient opportunity to remedy the defect and this did not succeed. A failure to remedy the defect can only be assumed if it is impossible, if the Provider refused to do so, or if it was delayed in an unacceptable manner, if there are reasonable doubts that the remedy will be successful or if it would be unreasonable for the Customer for some other reasons.
4. The rights of the Customer arising from defects are excluded in as much as the Customer made changes or allowed changes to be made to the Software without the consent of the Provider, unless the Customer proves that the changes do not have any unreasonable effects on the analysis and remedy of the defects for the Provider. The rights of the Customer due to defects shall remain unaffected in as much as the Customer is entitled to make changes, in particular within the scope of its exercising its right of self-remedy pursuant to § 536a (2) BGB and these changes have been carried out professionally and documented in a comprehensible manner.

2.12 Liability

1. The Provider shall be liable without limitation in the event of intent or gross negligence for all damage caused by it and its legal representatives or a person used to perform its obligation(s). In the case of ordinary negligence, the Provider is liable without limitation if it has assumed a guarantee or in the event of injury to life, limb or health. For the rest, the Provider shall only be liable to the extent that it has breached a material contractual obligation (= such obligations which are indispensable for the performance of this Contract and/or on the fulfilment of which the Customer would justifiably rely). In these cases, liability is limited to the replacement of foreseeable typically occurring losses.
2. Strict liability for damages (§ 536a BGB) on the part of the Provider for defects which existed at the time the contract was concluded is excluded; the foregoing 2.12.1. remains unaffected.
3. Liability based on the Product Liability Act remains unaffected.
4. The Provider is not liable for force majeure. Force majeure is understood to mean disruptions caused by events beyond the Provider's control, such as industrial disputes, disasters or disruptions to the energy supply of third parties, failure of the telecommunications networks of third parties and measures taken by authorities.

2.13 Beginning and ending of the contract, termination

1. The beginning of the contract is generally specified in the order confirmation for the Software. The initial term of this Contract is indicated in the order confirmation.
2. The minimum term of the software contract is the term defined in the order confirmation, but is no less than 3 months.
3. Individual modules/licences can be ordered independently of the initial order confirmation. The beginning of the contract in this case is the date of first use. The conclusion of the contract takes place from within the Account. The Customer selects the corresponding modules and confirms their selection. If credit card data are also stored in addition to the company name and billing address, the Customer concludes the contract with gastronovi by confirming and sending a contract for the chargeable use of the Software with the selected billing type.
4. The Contract (annual and/or monthly licence) shall be extended in each case by the term defined in the order confirmation, but not by more than 1 year, if it is not terminated following a notice period of one (1) calendar month before expiry of the contractual term. Per-use and/or weekly licences are ordered separately based on the minimum contractual terms, are invoiced based on use, and therefore cannot be terminated.
5. If the Provider notifies the customer in text form of a price adjustment or a change in its General Terms and Conditions of Business or a change to its services at least one month before the end of the contractual term, this shall constitute a termination of the contract subject to the previous terms and conditions at the end of the contractual term and an offer to contract under the current conditions and remuneration.
6. The right to terminate for good cause remains unaffected.
7. All notices of termination under this Contract shall be in text form.
8. Upon termination of the contract, the Customer shall back up their data from the Provider's server to their own data carrier at their own expense.
9. The deregistration of a trade does not constitute a special right of termination.

2.14 Rights of use, rights of the Provider in case of exceeding the scope of the rights of use

1. The Customer shall receive the non-exclusive (non-sublicensable and non-transferable) right to use the Software, limited to the term of this contract, in accordance with the following provisions.
   1. The Software is not licensed to the Customer as en end user. The Customer is only permitted to use the Software for its own business activities with its own personnel and for advisory services by its own advisers.
   2. The Customer is not allowed to make changes to the Software. An exception is made for changes that are necessary for remedy faults, in as much as the Provider is in default with the remedy of the fault, or refuses to remedy the fault.
   3. In as much as the Provider creates new versions, updates, upgrades or other new deliveries with respect to the software during the contractual term, the foregoing rights shall also apply.
   4. The Customer is not entitled to rights which have not expressly been granted to the Customer. In particular, the Customer is not entitled to use the Application beyond the agreed use, or to allow third parties to use it. In particular, the Customer is not permitted to duplicate the Software, to sell the software nor to assign it for a limited period of time, in particular not to lease it or lend it out. The Software must only be made available to third parties for its own operational purposes.
2. If the Customer violates the provisions of 2.12.1. of these Terms and Conditions for reasons for which he is responsible, the Provider can block the Customer's access to the Software or block the application data if it can be proved that the breach can be remedied. If the Customer is responsible for the breach of an obligation, the Provider can assert a claim for compensation for damages.