General Terms and Conditions of Business and Licensing of Ordercube GmbH
I. Scope of application1. These General Terms and Conditions of Business and Licensing in the version applicable at the time of the Customer’s order shall govern the contractual relationship between us and persons ordering our products (“Customers”). The Customer and we are jointly referred to as the “Parties”.
2. There are no verbal collateral agreements between the parties. These General Terms and Conditions of Business and Licensing apply exclusively. Any terms and conditions of the Customer that deviate from or contradict these General Terms and Conditions of Business and Licensing shall not apply; this shall also apply where we do not expressly object to the Customer’s terms and conditions.
3. In individual cases, agreements made in writing between the parties (including subsidiary agreements, supplements and amendments) as well as the purchase or rental agreement entered into between the parties shall take precedence over these General Terms and Conditions of Business and Licensing.
4. Our offers are only directed at commercial Customers. We do not conclude any contracts with consumers within the meaning of Section 13 German Civil Code and will not supply them.
II. Offer and conclusion of contract1. Depending on the package, we offer the supply of hardware with firmware and accessories (“Ordercubes”) at the technical specifications described in the contract as well as access to our standard software via an app (“Software” / “App”). We also offer an interface by which the Customer may access the software with the Customer’s invoicing system. The Customer and/or its service provider for the invoicing system shall be solely responsible for the integration of the interface.
2. The information contained in catalogues, advertisements and webpages is subject to change and non-binding and does not represent an offer from us.
3. The Customer’s order represents an offer to us to enter into a purchase or rental agreement for the Ordercubes ordered by the Customer.
4. The Customer shall be bound to its order for 14 days after receipt of the Customer’s order by us.
5. A contract between us and the Customer relating to the ordered Ordercubes shall only be concluded if we accept the order within two weeks after receipt of the order by e-mail, fax or postal mail or by sending the ordered Ordercubes within the same period.
6. Where we send customers an offer, this is subject to change and non-binding, unless we have expressly designated it as binding.
III. Scope of services1. The Customer shall receive the number of Ordercubes including the app license required to use the software in accordance with Article X hereof. The operating software is installed in executable form (object code) on the Ordercubes.
2 The specific scope of services shall depend on the package selected by the Customer (“GO”, “ECO” and “FLEX”). The Customer shall receive, for example, NFC tags, configured terminals, charging stations, explanatory flyers for guests and support services as shown in the respective offer.
3. Customer shall be granted the non-exclusive right to use the operating software installed on the Ordercubes on a permanent basis as part of the Ordercubes specified in the contract.
4. The provision shall additionally include cloud services for processing data in data centres (“Cloud Service”). We will ensure that the cloud services meet the requirements specified in the respective contract, in particular with respect to availability, technical requirements, data security and performance.
5. Setup, installation or establishment of technical operational readiness are only subject matter of the contract where explicitly stipulated. If requested by the Customer, additional services (consulting, instruction, in-house training) shall be provided against payment of the remuneration specified in Article IV hereof.
6. We reserve our property rights, copyrights and other intellectual property rights to any and all illustrations, calculations, drawings and other documents. The Customer may only pass these on to third parties with our written consent, irrespective of whether we have designated them as confidential. In particular, the Customer shall be prohibited from editing, modifying or otherwise redesigning them in whole or in part. The Customer shall also be prohibited from reverse engineering the hardware, in particular Ordercubes, charging stations and/or NFC tags, unless the Customer is entitled to do so under the relevant mandatory copyright law.
IV. Prices1. Our prices are to be considered ex works without packaging, unless otherwise specified in the order acknowledgment. Our prices do not include statutory value-added tax. We will show this separately in the invoice at the statutory rate on the day of invoicing.
2. The following shall apply to the Ordercubes: For the “GO” package, the Customer shall pay a one-time fee for the purchase of the Ordercubes. For the “ECO” package, the Customer shall pay a one-time fee for the use of the Ordercubes for a period of 24 months. For the “FLEX” package, the Customer shall pay a monthly fee for the use of the Ordercubes for a period of 12 months.
3. In addition, the Customer shall pay a one-time flat rate for software licence and support in the “GO” package and a monthly flat fee for software licence and support in the “ECO” and “FLEX” packages for 24 months (“ECO”) and 12 months (“FLEX”) respectively. This shall also include all Ordercube and software updates and cloud services. Where Customer wishes to continue to use the Ordercubes after expiry of the minimum contract period, a flat rate for software licence and support according to the then-current price list, which will be made available to Customer upon request, shall be due at the beginning of the subsequent month for an additional 24 months in advance.
4. In-house training shall be invoiced per hour according to the hourly rate applicable at the time plus the travel expenses incurred (EUR 0.30 per kilometre), which will be invoiced separately.
5. We will send you the current prices for all services upon request. All prices in our offers and price lists are net prices plus statutory value-added tax (16%).
6. Where we grant the Customer special conditions in the form of discounts, such shall only be granted where we can use the Customer as a “case study” in various advertising channels. In this context, the Customer must arrange for an interview with the general manager and provide some pictures of the premises with Ordercubes set up for advertising purposes. The Customer shall grant us the necessary rights, in particular rights of use of the images and brands. Likewise, the Customer must agree that the Customer’s profile picture may be published on the website including quotations where applicable. For this purpose, a separate declaration of consent under data protection law must be signed by the interviewed person.
7. The Customer must return the Ordercubes in the “ECO” and ““FLEX” packages in a condition expected to withstand the wear and tear of normal use. Where the Customer fails to return the rented Ordercubes in such a condition after the expiry of the contractual term, or if the Ordercubes are defective or worn out beyond normal use, we shall charge the Customer for the costs incurred for replacing or repairing the Ordercubes.
V. Terms of payment1. The one-off fee shall be due net (without deduction) immediately upon conclusion of the contract and the Ordercubes shall only be delivered after receipt of payment (advance payment), unless a different payment term (e.g. payment by instalments) is expressly stipulated in the order acknowledgment. The monthly fees are payable net (without deduction) on the 1st day of each month in advance.
2. In the case of an agreed payment by instalments, 50% of the total amount shall be due immediately without deduction as advance payment. The remaining 50% of the total amount shall then be due 30 days after delivery to the Customer.
3. A payment shall only be deemed to have been made when we can dispose of the funds. In the event of payments by cheque, payment is only deemed to have been made when the cheque is cashed.
4. Where the Customer is in default of payment, the statutory provisions shall apply. Where we have granted a discount to the Customer and the Customer fails to settle the payment within 7 days despite receipt of our payment reminder, the discount offered to the Customer shall not apply.
5. Even where notices of defects or counterclaims are asserted, the Customer shall only be entitled to offsetting if the counterclaims have been legally established, acknowledged by us or are undisputed. The Customer shall only be entitled to exercise a right of retention where the Customer’s counterclaim is based on the same contractual relationship.
VI. Delivery of the Ordercubes1. Our offer will specify how many weeks after receipt of payment delivery can be expected This is not a binding delivery date, but an estimated delivery period, which is tied to the availability of the Ordercubes.
2. Where the Customer is entitled, as a result of a delay in delivery for which we are responsible, to assert the discontinuation of the Customer’s interest in the further performance of the contract, we shall be liable in accordance with the statutory provisions. In such event, our liability shall be limited to the foreseeable, typically occurring damage unless the delay in delivery is due to an intentional breach of contract for which we are responsible, where any fault of our representatives or vicarious agents shall be attributed to us.
3. We shall also be liable to the Customer in the event of a delay in delivery in accordance with the statutory provisions where such is due to an intentional or grossly negligent breach of contract for which we are responsible, where any fault of our representatives or vicarious agents shall be attributed to us. Our liability shall be limited to the foreseeable, typically occurring damage, unless the delay in delivery is based on an intentional breach of contract for which we are responsible.
4. In the event that a delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation, where any fault of our representatives or vicarious agents shall be attributed to us, we shall be liable in accordance with the statutory provisions subject to the fact that in such event the liability for damages shall be limited to the foreseeable, typically occurring damage.
5. Otherwise, in the event of a delay in delivery for which we are responsible, the Customer may claim a flat-rate compensation of 3% of the delivery value for each full week of delay, but not more than 15% of the delivery value.
6. Any further liability for a delay in delivery for which we are responsible is excluded. Additional legal claims and rights of the Customer, to which the Customer is entitled in addition to the claim for damages due to a delay in delivery for which we are responsible, shall remain unaffected.
7. We shall be entitled to make partial deliveries and render partial services at any time, provided such is reasonable for the Customer.
8. Where the Customer is in default of acceptance, we shall be entitled to demand compensation for the resulting damage and any additional expenses. The same shall apply where the Customer culpably violates its obligations to cooperate. Upon the occurrence of default of acceptance or debtor’s delay, the risk of accidental deterioration and accidental loss shall pass to the Customer.
VII. Transfer of risk, transport, packaging1. Loading and transport are carried out uninsured at the Customer’s risk. We endeavour to take the Customer’s wishes and interests into account with respect to the mode and route of transport; any additional costs incurred as a result – including where carriage paid delivery has been agreed – shall be borne by the Customer.
2. We do not take back any transport packaging or other packaging in accordance with the German Packaging Ordinance, with the exception of pallets. The Customer shall arrange for the disposal of the packaging at the Customer’s own expense.
3. Where the transport is delayed at the request or through the fault of the Customer, we shall store the goods at the Customer’s expense and risk. In such event, the notification of readiness for transport shall be equivalent to the transport.
4. At the request and expense of the Customer, we shall insure the delivery by means of transport insurance.
VIII. Ordercube “GO” package1. The Customer shall acquire ownership of the Ordercubes in the “GO” package. In addition, the total price includes a two-year software licence, support and software and Ordercubes updates. Subsequently, the services may be extended for an additional two years against payment of the then-current price lists.
2. The delivered goods (goods subject to retention of title) shall remain our property until any and all claims, including all balance claims from current account, to which we are entitled against the Customer now or in the future, have been fulfilled. In the event that the Customer acts in breach of contract, e.g., payment in arrears, we shall be entitled to take back the goods subject to retention of title after having set a reasonable deadline. Where we take back the goods subject to retention of title, such shall constitute a withdrawal from the contract. Where we seize the goods subject to retention of title, such shall constitute a withdrawal from the contract. We shall be entitled to use the goods subject to retention of title after taking them back. After deducting a reasonable amount for the costs of the realisation, the proceeds of the realisation shall be offset against the amounts owed to us by the Customer.
3. The Customer must treat the goods subject to retention of title with care and insure them adequately at the Customer’s own expense against damage by fire, water and theft at replacement value. Maintenance and inspection work that becomes necessary must be carried out by the Customer at the Customer’s own expense and in due time.
4. In the event of resale, the goods may not be used by the third-party purchaser as they are, but usability requires technical modifications.
5. Processing or transformation of the goods subject to retention of title by the Customer shall in any event be carried out for us. Where the goods subject to retention of title are processed with other items not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other processed items at the time of processing. The same shall apply to the new object resulting from processing as to the goods subject to retention of title. In the event of inseparable mixing of the goods subject to retention of title with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other mixed items at the time of mixing. Where, as a result of the mixing, the Customer’s item is to be regarded as the main item, the Customer and we agree that the Customer shall transfer proportional co-ownership of such item to us; we hereby accept such transfer. The Customer shall keep our sole or co-ownership of an item thus created in safekeeping on our behalf.
6. In the event of access by third parties to the goods subject to retention of title, in particular seizures, the Customer shall draw attention to our ownership and notify us without undue delay so that we may enforce our ownership rights. Where the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred in such connection, the Customer shall be liable for such costs.
7. We shall be obligated to release the collateral to which we are entitled insofar as the realisable value of our collateral exceeds the claims to be secured by more than 10%, in which case we shall have the right to select the collateral to be released.
IX. Ordercube “ECO” and “FLEX” packages1. The Customer shall enter into a rental agreement with us as to the “ECO” and “FLEX” packages for the use of the Ordercubes. The Customer shall use the Ordercubes with due care. The Ordercubes shall remain our property at all times.
2. The rental agreement has a minimum term of 24 months for the “ECO” package and 12 months for the “FLEX” package. The rental agreement shall automatically be extended by another 12 months in each case unless it is terminated in due time. The rental agreement may be terminated in writing three months prior to the end of the minimum term or the then applicable contract term.
3. Ordercube reserves the right to block access to the software for the Customer and to demand the immediate return of the Ordercubes where the Customer is in default with the payment of an instalment and fails to pay the instalment within 14 days even after a reminder has been sent.
4. After expiry of the minimum contract term, the Customer shall have the option of purchasing the Ordercubes from us at the then-current price.
X. Software1. We provide Customers with the software and subsequent updates for download and installation via a platform such as the Apple App Store, Google Play and the Ordercube Web App with the then available functions. (“App”). If the Customer wishes to access the software with the Customer’s systems via an interface, we shall not be liable for any damages arising from faulty integration by the Customer or the Customer’s service provider.
4. The granting of the rights of use is subject to the following conditions subsequent: (i) the Customer acknowledges our authorship and, in particular, does not change or remove any copyright notices; (ii) the Customer does not change and/or decompile the app (the Customer’s authorities contained in Sections 69d and 69e German Copyright Act shall remain unaffected). In addition, the Customer is prohibited from reverse engineering the software, unless the Customer is entitled to do so under the relevant mandatory copyright law.
5. Some of the app’s functions require a connection to our system (“backend”) via the Internet. We guarantee an availability of 95% on an annual average, excluding maintenance announced at least seven (7) days in advance (maximum of 5 hours/week on an annual average). We endeavour to carry out maintenance in time windows in which the app is only rarely used.
6. We provide the app to the Customer for the intended use on a supported device. The supported devices or the minimum requirements for the devices are specified in the respective current product descriptions which are available on our website.
7. The system and software requirements specified in the product descriptions in their respective current form must be complied with to use the app. Software programmes and services of third-party manufacturers with which the app is intended to cooperate may only be used upon our approval. Compliance with system requirements is the sole responsibility of the Customer. Questions regarding interoperability must be forwarded to us.
8. For the proper use of the app, Ordercube shall create a user account for the Customer and transmit the required data after sending the Ordercubes to the Customer. The Customer may subsequently manage the user account independently. The app may only be used for the contractual purposes. Transferring the user account to third parties is not permitted.
9. We may block a user account if there are indications that the user account has been used in unauthorised manner and/or it has been attempted or undertaken to gain unauthorized access to the app or the systems behind it from the user account (“hacking”). In such event, we shall notify the respective Customer without undue delay and restore access to the user account, unless there are facts that suggest that the Customer has attempted to gain unauthorized access to our systems.
XI. Support1. We offer our support in the form of remote maintenance via our service hotline The service hotline is available for customers from Monday to Friday from 10 am to 6 pm.
2. Customers shall automatically receive all new functions for the Ordercubes for a period of 2 years (firmware updates)
XII. Warranty1. The Customer shall only be entitled to claim for defects where the Customer has duly met its obligations to examine and give notice of defects in accordance with Section 377 German Commercial Code.
2. In the event of justified notices of defects, we shall be obligated to effect subsequent performance (excluding the Customer’s rights to withdraw from the contract or to reduce the purchase price [reduction]), unless we are entitled to refuse subsequent performance on the basis of statutory provisions. The Customer shall grant us a reasonable period of time for subsequent performance. Subsequent performance shall be effected at our own discretion by remedying the defect (repair) or by delivering new goods. In the event of rectification of the defect, we shall bear the necessary expenses unless these are increased because the object of the contract is located at a place other than the place of performance. Where subsequent performance has finally failed, the Customer may, at its discretion, demand a reduction of the purchase price (abatement) or declare withdrawal from the contract. The rectification of defects shall be deemed to have failed after the third unsuccessful attempt, unless further attempts at rectification are appropriate and reasonable for the Customer on the basis of the subject matter of the contract. Claims for damages on the following terms due to the defect may only be asserted by the Customer where subsequent performance has failed. The Customer’s right to assert further claims for damages at the following terms shall remain unaffected.
3. The Customer’s warranty claims shall expire by limitation one year after delivery of the goods to the Customer, unless we have fraudulently concealed the defect; in such event, the statutory provisions shall apply. Our obligations under Article XII(4) and Article XIII(1) hereof shall remain unaffected.
4. The obligation under Article XII(4) hereof shall be excluded where the defect is due to advertising statements or other contractual agreements which do not originate from us, or if the Customer has given a special guarantee to its own customers (“end users”). The obligation shall also be excluded where the Customer was not obligated to exercise warranty rights towards end users on the basis of statutory provisions or where the Customer did not give notice of defects in relation to claims asserted against the Customer. This shall also apply where the Customer has assumed warranties towards the end user which exceed statutory provisions.
XIII. Liability1. Notwithstanding the following limitations of liability, we shall be liable in accordance with the statutory provisions for damage to life, body and health resulting from a negligent or intentional breach of duty by us, our legal representatives or our vicarious agents, as well as for damage covered by liability under the Product Liability Act. We shall be liable in accordance with the statutory provisions for damage not covered by sentence 1 hereinabove and which are based on intentional or grossly negligent breach of contract as well as fraudulent intent by us, our legal representatives or our vicarious agents. In such event, however, the liability for damages shall be limited to the foreseeable, typically occurring damage, unless we, our legal representatives or our vicarious agents have acted intentionally. To the extent that we have given a guarantee of quality and/or durability in relation to the goods or parts thereof, we shall also be liable within the scope of this guarantee. We shall, however, only be liable for damage which is based on the absence of the guaranteed quality or durability but which does not directly affect the goods if the risk of such damage is obviously covered by the guarantee of quality and durability.
2. We shall also be liable for damage caused by simple negligent breach of such contractual obligations, the fulfilment of which is material for the proper execution of the contract and on the observance of which the Customer regularly relies and may rely. We shall, however, only be liable insofar as such damage is typically associated with the contract and foreseeable.
3. Any further liability is excluded, irrespective of the legal nature of the asserted claim; this shall apply in particular to tortious claims or claims for compensation for futile expenditure instead of performance; this shall not affect our liability under Article VI(2) to Article VI(6) hereof. Where our liability is excluded or limited, such shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
4. The Customer’s claims for damages due to a defect shall become time-barred one year after delivery of the goods. This shall not apply in the case of injury to life, body or health caused by us, our legal representatives or our vicarious agents, or if we, our legal representatives have acted with intent or gross negligence, or if our simple vicarious agents have acted with intent.
XIV. Satisfaction guarantee1. Where Ordercube has expressly granted the Customer a satisfaction guarantee in its offer, the Customer may test the Ordercubes and return them within 14 days after delivery without giving reasons. If the Customer returns the Ordercubes within the specified period, the contract concluded with us shall become ineffective (condition subsequent).
2. During the trial period, the Customer shall bear the risk of accidental loss and accidental deterioration of the Ordercubes and shall be liable for any damage caused by the Customer. The Customer shall not be liable for deterioration of the Ordercubes, which merely represents normal wear and tear. The Customer undertakes to use the Ordercubes only in the manner specified in the operating instructions and to treat them with care. The Customer must have any necessary maintenance and repair work carried out in due time at the Customer’s own expense.
3. Where the Customer makes the declaration referred to in paragraph 1 hereinabove, the Customer must return and retransfer ownership of the Ordercubes to us at the Customer’s expense within the 14-day period. We shall reimburse the Customer for payments already made. Where the Ordercubes are not returned within the period, the contract shall remain in effect.
XV. Place of performance, legal venue, applicable law1. Place of performance and legal venue for deliveries and payments (including litigation on cheques and bills of exchange) as well as any and all disputes arising between us and the Customer from and in connection with the purchase contracts concluded between us and the Customer is the place of our registered office. We shall, however, also be entitled to sue the Customer at the Customer’s place of residence and/or business.
2. The relations between the parties shall exclusively be governed by and construed in accordance with the laws applicable in the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
As of May 6, 2020