1 Object of agreement
The company viadee Unternehmensberatung GmbH, Anton-Bruchausen-Str. 8, 48147 Münster, Germany, Münster District Court commercial register record HRB 4318, represented by managing directors Martina Wegener and Heinrich Riemann, Tel. +49 (0)251 77777100, Fax: +49 (0)251 77777888, e-mail: firstname.lastname@example.org (hereinafter ‘viadee’) provides the software called “bestellbar®” for private use on mobile devices (hereinafter ‘the app’). The app allows customers to call up product information (e.g. food and beverage menus) from participating Vendors via the app and place orders on the spot.
The object of the agreement is participation in the bestellbar® system. Participating allows the Vendor to make product information accessible via the app and accept orders placed via the app.
2 Pricing and agreement term
The monthly fee for participating in the bestellbar® system is €41.18 plus VAT (i.e. €49.00 at the current rate), payable monthly in advance. The fee amount is due immediately upon invoice receipt.
The agreement term is three months. The term automatically extends for an additional month unless terminated in writing with two weeks’ written notice, effective month-end.
No reasons are required for contract termination. Right to extraordinary termination for due cause shall remain unaffected.
viadee enjoys extraordinary termination rights in particular if the Vendor materially violates obligations under this agreement or remains in arrears on payment of the participation fee after elapse of a reasonable grace period set by viadee. Damage claims assertable by viadee remain thereby unaffected.
If the Vendor was not at fault for extraordinary termination exercised by the Vendor or viadee, the Vendor shall be entitled to a pro rata refund of the participation fee based on the remaining term until expiration of the agreement.
Payments are processed via Heidelberger Payment GmbH (Heidelpay). For payment processing, the necessary billing data are transmitted to Heidelpay and stored and processed by Heidelpay. The Vendor consents to the transmission of data to Heidelpay. Heidelberger Payment GmbH is a payment institution within the meaning of the Payment Services Oversight Act (ZAG) and registered with the German Federal Financial Supervisory Authority (BaFin). Heidelpay shall solely use the data provided in fulfilment of its contractual obligations. The data is not disclosed to third parties.
3 Obligations of viadee
For the term of the agreement, viadee grants the Vendor the non-exclusive, non-transferable right to use the software for its intended purpose. The Vendor is furthermore authorised to use the app name and logo to advertise participation in bestellbar®.
During the term of the agreement, viadee is obligated to ensure operability of the bestellbar® system and that Vendors are able to access the administration area (‘bestellbar-Manager’).
The app has the functionalities specified in the description, and has been tested to ensure this is the case. viadee shall not be liable if unable to properly fulfil obligations under this agreement due to force majeure events. If a delay occurs caused by force majeure events, obligations will be fulfilled as rapidly as reasonably possible under the circumstances.
viadee provides the app within the framework of the current state of technology. Access to the bestellbar® system is offered subject to availability. A 100% availability level is not technologically realisable. In particular, maintenance, security and capacity issues and events beyond the operator’s control (disruptions of public communication networks, power failures, etc.) may cause disruptions or temporary shut-down of the system.
viadee shall only hire external providers to fulfil its contractual obligations after careful reviewing their individual performance capability and reliability. viadee utilises external servers to provide the software. Regarding the use of external servers it likewise applies 100% availability cannot be guaranteed despite careful provider selection.
Errors are fixed as they arise by the support, updates and patches offered.
The Vendor must notify viadee immediately via the support channels provided upon becoming aware of an error. viadee shall not be liable for damages arising solely due to delayed notification of errors.
5 Contractual relationship between Vendor and buyer
The offerings provided by the Vendor (e.g. food and beverage menus) merely represent an invitation by the respective establishment owner to the buyer to submit an offer.
A contract for the supplying of products (e.g. food and/or beverages) is effected solely between the Vendor and the buyer. viadee is neither a messenger nor a representative of the Vendor or the buyer, instead merely providing the technological basis for ordering.
Accordingly, viadee shall in no case be liable for contract violations by the Vendor’s guests. The Vendor shall hold viadee harmless from any claims asserted by buyers on the basis of placed or intended orders or other grounds.
6 Inaccurate product information
The respective establishment is exclusively responsible for product and price specifications. viadee does not review product information provided for accuracy, completeness or plausibility. The Vendor is obligated to immediately incorporate any changes in product information into the bestellbar® system.
7 Use of the promotion function
Among other things, the promotion function allows the buyer to gamble on the applicable product price by clicking a on one of several face-down cards. The Vendor may assign reduced prices to the cards. A price higher than the regular product price may not be used with this function.
8 Further obligations of the Vendor
The Vendor agrees to actively advertise participation in the bestellbar® system, in particular by displaying the logo at appropriate places, such as food and beverage menus, website, etc.
The Vendor shall ensure that orders placed via the app are processed promptly, in no case less promptly than orders placed through conventional channels.
9 App modification and maintenance
viadee reserves the right to modify the app to improve its performance, stability and security. Contractual usage functionalities are not thereby limited.
viadee regularly conducts maintenance on its systems to ensure network security/integrity, service interoperability and data privacy. To this end viadee may temporarily interrupt or limit services – taking into account customers’ interests – if justified by objective reasons. viadee will perform maintenance at low usage times whenever possible. If more lengthy temporary service interruption or limitation is required, viadee will notify the customer of the nature, extent and duration of the disruption in advance to the extent objectively possible under the circumstances, as long as providing notification would not delay resolving an existing interruption.
10 . Content loaded by the Vendor
The Vendor is able to load self-generated content presenting the Vendor’s company and products. The Vendor is solely responsible for such company and/or product presentation content.
The Vendor must observe any third-party trademarks or copyrights when loading text or images.
Using the app to display other unlawful or objectionable content is prohibited.
This includes in particular, but is not limited to:
- content glorifying violence and/or inhumane acts
- racist and/or unconstitutional content
- pornographic content
- content which could negatively affect viadee’s reputation or business interests
In case of doubt, content must be submitted to viadee for review prior to loading. viadee has the right to temporarily or permanently remove content loaded by the Vendor in the event third parties credibly assert infringement of their rights, if viadee is instructed by authorities to remove the content and if the content is in obvious violation of Section 3.
The Vendor agrees to hold viadee harmless from third-party claims of any nature arising from the illegality of content loaded by the Vendor. This obligation to hold harmless includes the obligation to fully indemnify viadee for any associated legal defence costs (court costs, solicitor fees, etc.).
11 Data privacy
The Vendor has read the viadee Data Privacy Statement. The Vendor consents to the recording, storage and processing of the Vendor’s data to the extent necessary under the agreement. The Vendor consents to the transmission and storage of data to/on servers in the United States when such transfer and storage is necessary for technical reasons.
12 Miscellaneous provisions
The law of the Federal Republic of Germany applies. The place of jurisdiction for all disputes arising from this agreement shall be that of the viadee registered office.