1 Contracting party
1.1 The following General Terms and Conditions govern the legal relationship between SimplyDelivery GmbH (hereinafter referred to as "SimplyDelivery"), Potsdamer Str. 33, 14974 Ludwigsfelde, Germany, and its customers (hereinafter referred to as "Customer") with regard to the subject matter of the contract.
1.2 SimplyDelivery's offer is directed exclusively at entrepreneurs within the meaning of § 14 BGB (German Civil Code). Entrepreneurs are natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, act in the exercise of their commercial or independent professional activity. Against this background, the customer declares with the conclusion of the contract that he is an entrepreneur and not a consumer within the meaning of § 13 BGB (German Civil Code).
2 Subject matter of the contract
2.1 SimplyDelivery shall provide the Customer with software for use over the Internet ("Software as a Service", hereinafter "SaaS") in the form of Cloud Services and other services. The specific subject matter of the contract for the provision of SaaS services is as follows
cash register system
iOS and Android Apps,
Personnel & Fleet Management
merchandise management module
by SimplyDelivery results from the respective individual contract with the customer, the current service description as available at [www.SimplyDelivery.de/leistungsbeschreibung.pdf] and from these General Terms and Conditions. In the event of discrepancies, the contractual agreements shall apply in the above order.
2.2 Any deviating provisions or provisions going beyond these General Terms and Conditions must be made in writing. The assumption of a guarantee for certain characteristics (condition) of the subject matter of the contract requires written form in order to be effective.
2.3 General terms and conditions of the customer shall not become part of the contract, even if these requests for offers, orders, declarations of acceptance etc. are attached and are not contradicted by SimplyDelivery.
2.4 SimplyDelivery reserves the right, also in cooperation with third party service providers, to supplement the services offered with additional optional (voluntary) functions, the use of which may be subject to additional terms and conditions and/or may require the conclusion of contracts with third parties. SimplyDelivery will inform the customer of such circumstances in a timely manner and, if necessary, will transmit additional terms and conditions.
3 Contracts and offers
3.1 Subject to a separate provision, the contract shall come into effect upon signature of the individual contract by the customer, but at the latest upon SimplyDelivery providing the services in accordance with the contract.
3.2 Delivery and performance dates or periods specified in the contracts shall only be binding if SimplyDelivery has designated them as binding in writing.
3.3 All offers made by SimplyDelivery are subject to change without notice unless expressly stated otherwise in the individual contract. SimplyDelivery reserves the right to make minor technical deviations from the subject matter of the contract even after the individual contract has been signed by the customer, provided this is not unreasonable for the customer.
3.4 SimplyDelivery may continuously expand the services owed (including the system requirements) and change them for important reasons in order to adapt to technical or economic market changes. An important reason exists in particular if the change is necessary a) due to a necessary adaptation to a changed legal situation or jurisdiction, b) due to a changed technical framework (new browser versions and/or technical standards), c) due to the protection of system security, or d) due to the further development of the services (deactivation of old functions which have been replaced by new ones). SimplyDelivery will notify the customer by e-mail in good time, usually four weeks prior to implementation, of any changes that are detrimental to the customer. The customer's consent to such a change shall be deemed to have been given if the customer does not object to the notified change in writing or by e-mail by the announced change date, but in any case within a reasonable period of time. SimplyDelivery will make separate reference to these legal consequences when announcing such changes. If and to the extent that the change would significantly disrupt the contractual balance of the contracting parties to the detriment of the customer, the change shall be omitted. In this case, both contracting parties shall be entitled to terminate the contractual relationship extraordinarily with one month's notice to the end of the month.
4 Obligations and duties of the customer
4.1 The customer has in particular the following obligations:
a) For each unpaid invoice, the customer shall reimburse SimplyDelivery for the costs incurred by SimplyDelivery to the extent that the customer is responsible for the event triggering the costs.
b) If the Client collects, processes or uses personal data within the scope of the use of the SaaS services and no legal permission is granted, the necessary consent of the person concerned must be obtained. He assures that he has received this consent in accordance with the requirements.
c) SimplyDelivery and its vicarious agents shall be indemnified by the customer against all claims by third parties based on the illegal use of the subject matter of the contract and the associated services by the customer. In particular, when using SimplyDelivery's services, the customer shall comply without restriction with all applicable laws and regulations.
d) Personal access data (password and password) may not be passed on by the customer to third parties and must be stored protected from access by third parties. For security reasons and in the customer's own interest, they must be changed prior to initial operation and then at regular intervals. If there is reason to suspect that unauthorized persons have gained knowledge of the access data, the customer must notify SimplyDelivery immediately and change the access data immediately. Access data may only be stored in encrypted form on PC, USB stick, CD-ROM and other data carriers.
e) It is the customer's responsibility to regularly export copies of the customer data entered by him or his users and to make backup copies or to print out and store the corresponding information. The customer is aware that a complete copy of the simplydelivery database is technically impossible. Any data to be processed and/or backed up by SimplyDelivery which originates from the customer's spy shall be checked for harmful components by appropriate means prior to transmission and/or input.
f) The customer is solely responsible for the Internet connection required for the use of the subject matter of the contract and for the operational readiness and operability of the hardware and software environment (such as PC, network connection, browser, etc.) required according to the respective service description. If and to the extent that remote access is required for the maintenance and servicing of the Services, the Customer shall at SimplyDelivery's request grant such remote access at any time within the scope of the technical requirements set out in the Service Description.
g) All payments shall be made in cleared funds, without deduction or set-off and free of and without deduction for taxes, duties, imports, customs duties, fees, charges and retentions of any kind whatsoever which are levied now or in the future by any government, tax or other authority, unless this is prescribed by law. When a Party to this Agreement is required to make such a deduction, it shall pay to the receiving Party the additional amounts necessary to ensure that the receiving Party receives the full amount that that Party would have received except for the deduction.
h) To use the Software, Customer must register an Account with Google Maps in order to make full use of the Software. If he fails to do so, SimplyDelivery will use his account and charge the customer for the costs incurred.
i) In order to use the iOS App, the customer must register an account with Apple at his own expense and grant SimplyDelivery access to the maintenance of the App.
5 Rights of use
5.1 The Customer shall be granted the non-exclusive, non-transferable and non-sublicensable right, as well as the non-exclusive right limited to the period of use or contract period, to access the services offered by SimplyDelivery via the Internet and to use them for its own business purposes in the exercise of its commercial or independent professional activity in accordance with the contract. This includes the use in the customer's stores named in the individual contract. The customer does not receive any rights beyond this. The source code of the provided services is not subject of the contract.
5.2 The customer is not entitled to use the software beyond the intended use permitted under this contract or to have it used by third parties or to make it accessible to third parties. In particular, without prejudice to mandatory statutory claims and rights, the Customer shall not be permitted to reproduce or sell the Software or parts thereof. In particular, § 69d paras. 2 and 3 as well as § 69e UrhG remain unaffected.
5.3 Upon request, the customer shall provide SimplyDelivery with all information required for asserting claims against third parties, in particular their name and address, as well as the nature and scope of any claims against SimplyDelivery arising from the unauthorized provision of the program.
6 Remuneration and terms of payment
6.1 The remuneration agreed in the individual contract as well as any ancillary costs represent net prices in principle and are to be understood in each case plus statutory taxes and levies.
6.2 The amount of the remuneration owed by the customer shall result from the individual order. Remuneration shall be invoiced by simplydelievery in accordance with the following provisions. Invoice amounts payable by the customer to SimplyDelivery shall be transferred to the account stated in the invoice. The respective invoice amount must be credited to this account no later than on the tenth day after receipt of an invoice. In the case of a direct debit authorisation granted by the customer, SimplyDelivery will not debit the invoice amount from the agreed account before the seventh day after receipt of the invoice.
6.3 Monthly fees shall be paid pro rata for the remainder of the month, beginning on the day on which the services are ready for operation. Thereafter, these fees shall be paid monthly in advance. If the remuneration is to be calculated for parts of a calendar month, it shall be calculated pro rata for each day. The full monthly remuneration shall also be calculated accordingly if the customer terminates the contractual relationship within the period of notice; this shall not apply if SimplyDelivery is responsible for the customer's termination for good cause.
6.4 Other remuneration shall be due after SimplyDelivery has rendered the respective service and shall be paid by the customer without deduction in accordance with the invoice.
6.5 The customer shall only have a right of set-off if his counterclaim has been legally established or is undisputed. The customer shall only be entitled to assert a right of retention on the basis of counterclaims arising from this contractual relationship.
6.6 The remuneration amount owed by the customer shall be adjusted annually by SimplyDelivery on the key date of the conclusion of the contract in the course of the general increase in costs, but not by more than a 5% surcharge. This adjustment does not require the customer's consent; however, SimplyDelivery will inform the customer at least 1 month in advance.
7.1 In the event of a significant delay in payment, SimplyDelivery shall be entitled to suspend the services at the customer's expense. In this case, however, the customer remains obliged to pay the monthly fee.
7.2 If the customer arrives
(a) for two consecutive months after payment of the allowances; or
b) in a period extending over more than two months, in default of payment of the remuneration in the amount of an amount which reaches the monthly basic remuneration for two months, SimplyDelivery may terminate the contractual relationship without notice.
7.3 SimplyDelivery reserves the right to assert further claims due to delayed payment.
8.1 Claims of the customer for damages are excluded. Excluded from this are claims for damages by the customer arising from injury to life, limb or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by SimplyDelivery, its legal representatives or vicarious agents. Material contractual obligations (cardinal obligations) are those which make the proper execution of the contract possible in the first place, the breach of which endangers the achievement of the purpose of the contract and the compliance with which the customer can regularly rely on.
8.2 In the event of a breach of essential contractual obligations, SimplyDelivery shall only be liable for foreseeable damage typical of the contract if such damage was caused by simple negligence, unless the damage was caused by the customer's claims for damages arising from injury to life, limb or health.
8.3 The restrictions in 8.1 and 8.2 shall also apply to the benefit of SimplyDelivery's legal representatives and vicarious agents if claims are asserted directly against them.
8.4 The provisions of the Product Liability Act shall remain unaffected. 8.5 SimplyDelivery's strict liability for damages (§ 536a BGB) for defects existing at the time of conclusion of the contract is excluded.
8.6 Liability for all other damages is excluded in accordance with the above provisions, in particular for loss of data or hardware malfunctions caused by incompatibility of the customer's existing components with the new or modified hardware and software and for system malfunctions caused by existing misconfigurations or older or disruptive software of the customer.
8.7 Insofar as liability is not excluded for damage caused by slight negligence which is not based on injury to life, limb or health, such claims shall become statute-barred within one year of the claim arising.
9 Domain registration and use
9.1 The Customer acknowledges that with regard to a domain registration made by SimplyDelivery, the different top-level domains under the administration of national organisations (registrars) are subject to the conditions for the registration and administration of the top-level domains of the respective organisation. If top-level domains are the subject of the contract, the terms and conditions of the registrars shall apply accordingly.
9.2 SimplyDelivery will always register domains in the name and on behalf of the Customer as the domain holder. The Customer is obliged to bear the costs incurred by the registration and operation of the respective domains or to reimburse SimplyDelivery.
10 Availability and Warranty
10.1 SimplyDelivery provides all services on the infrastructure of an external hosting provider. This provider guarantees 98% availability of its servers on an annual average. In this case, the general terms and conditions of the hosting provider shall apply, which will be made available to the customer upon request prior to conclusion of the contract. The same availability (98% annual average) shall be deemed to have been agreed with regard to the services provided by SimplyDelivery.
10.2 Times during which the server cannot be reached due to technical or other problems beyond the control of the hosting provider and/or SimplyDelivery (force majeure, fault of third parties, etc.) are excluded from the aforementioned availability. The inaccessibility of the Software for these reasons does not constitute a reason for a reduction in performance or remuneration on the part of the Customer.
10.3 Technical downtimes, e.g. for the installation of updates as part of regular maintenance or the expansion of the software, shall only be carried out after prior consultation with the Customer and, as a rule, as scheduled and to a reasonable extent outside the Customer's normal business hours. Such downtimes due to scheduled maintenance work do not constitute a reason for a reduction in performance or remuneration on the part of the customer.
10.4 The customer shall immediately notify SimplyDelivery in writing (by e-mail, support board or asana) of any defects in the services or other errors and shall document any circumstances of the occurrence in the best possible way. SimplyDelivery will remedy the defects within a reasonable period of time in consultation with the customer by repair or replacement. If SimplyDelivery is unable to remedy a defect within a reasonable period of time to be set by the customer which enables at least 3 attempts to remedy the defect, the customer may terminate the contract extraordinarily. SimplyDelivery is entitled to circumvent a defect by a workaround if the cause of the defect itself can only be remedied with disproportionate effort and the usability of the services does not suffer significantly. Further claims and rights shall not exist unless SimplyDelivery has acted fraudulently. 10.5 The limitation period for warranty claims is one year.
11 Data protection
11.1 SimplyDelivery does not acquire any rights to the data stored by the customer within the scope of the use of the contractual services (in particular personal data of third parties). However, SimplyDelivery is entitled to use this data exclusively on the instructions of the customer in accordance with the following provisions and within the scope of this contract. In addition, SimplyDelivery may use anonymous, non-personal data for general statistical evaluation.
11.2 If personal data is processed on behalf of the customer, SimplyDelivery will only collect, process, use or access such personal data within the scope of the agreements made and in accordance with the customer's instructions. In the event of order data processing, the contracting parties shall conclude a separate order data processing agreement.
11.3 In the case of order data processing, the Customer shall in principle remain responsible for compliance with the provisions of the Federal Data Protection Act (BDSG) with regard to personal data.
11.4 SimplyDelivery is obliged to use the personal data within the meaning of the BDSG, which it receives and uses in connection with the execution of this contract, only for the purpose of fulfilling this contract.
11.5 The customer remains "master of the data" both in terms of contract law and data protection law. Whether and to what extent third parties enter or access data remains solely at the discretion of the Customer. Insofar as the Customer permits third parties to use personal data to this extent, the Customer shall ensure that the authorization administration, password allocation, etc. are organised accordingly.
11.6 In principle, the customer is not entitled to demand access to the premises in the SimplyDelivery computer centre where the services used by him are technically operated. This shall not affect the data protection officer's access rights, which are set out in more detail in the order data processing contract.
11.7 Upon termination of this contract, SimplyDelivery shall no longer be entitled to use the customer's data. SimplyDelivery will then delete the data within thirty days. The data can be transferred to the customer in a standard format on a data carrier against reimbursement of costs.
11.8 SimplyDelivery may perform the services through subcontractors at home and abroad, but must agree with the subcontractor on obligations in accordance with the provisions of clauses 11.1 to 11.7. The customer is aware that SimplyDelivery provides its services as Cloud Services.
11.9 In the case of subcontractors outside the European Economic Area, SimplyDelivery will ensure an appropriate level of data protection that meets the requirements.
12 Force majeure
12.1 SimplyDelivery shall not be liable for events of force majeure which significantly impede SimplyDelivery's contractual performance, temporarily impede the proper performance of the contract or make it impossible. Force majeure shall mean all circumstances independent of the will and influence of the contracting parties, such as natural disasters, government measures, official decisions, blockades, war and other military conflicts, mobilization, civil unrest, terrorist attacks, strikes, lockouts and other industrial unrest, seizure, embargo or other circumstances that are unforeseeable, serious and beyond the control of the contracting parties and occur after conclusion of this contract.
12.2 If either party is prevented from performing its obligations under the Contract by Force Majeure, this shall not be deemed a breach of Contract and the time limits set out in the Contract or under the Contract shall be reasonably extended in proportion to the duration of the Force Majeure. The same shall apply if SimplyDelivery is dependent on the advance performance of third parties and this is delayed due to force majeure.
12.3 Each contracting party shall do everything in its power necessary and reasonable to mitigate the consequences of the Force Majeure. The party affected by the force majeure shall immediately notify the other party in writing of the beginning and end of the hindrance.
12.4 As soon as it is established that the force majeure lasts longer than six months, each party shall be entitled to terminate the agreement by registered letter.
13 Changes to the General Terms and Conditions, Service Descriptions and Prices
If SimplyDelivery intends to make other changes to the general terms and conditions, the service descriptions or the prices, the customer will be notified of the changes in writing at least six weeks before they take effect. In the event of changes to the General Terms and Conditions, the description of services or price increases, the customer shall be entitled to a special right of termination at the time the changes take effect. If the customer does not terminate the contract in writing within six weeks of receipt of the notification of change, the changes shall become an integral part of the contract at the time they take effect. SimplyDelivery will expressly draw the customer's attention to this consequence in the notification of change.
14 Contract term and termination
14.1 The initial term of the contract shall be 24 months in each case. After expiry of the minimum contract period, the contract period shall be automatically extended by a further year if the customer does not give written notice of termination three months prior to expiry.
14.2 The right to terminate for good cause remains unaffected. An important reason for SimplyDelivery is given in particular in cases in which the customer significantly violates the obligations incumbent upon him.
14.3 The right to terminate for good cause shall remain unaffected. An important reason for SimplyDelivery is given in particular in cases in which the customer significantly violates the obligations incumbent upon him.
14.4 Upon termination of the contract for standard services, any contractual relationships for additional services shall also terminate.
14.5 Upon termination of the respective contract, the connection from the Internet shall be terminated. The entire database of the customer stored on the servers of the SimplyDelivery platform must be downloaded to the customer's local system by the customer in good time before the date of termination. SimplyDelivery will delete the data and access codes after expiry of the contract. In order to comply with the legal storage obligation, the customer may enter into a contract with SimplyDelivery for the further storage of the data, which will incur additional costs.
15 Other conditions
15.1 SimplyDelivery is entitled to subcontract the services to third parties. SimplyDelivery shall be liable for the performance of services by subcontractors as for its own actions.
15.2 The place of jurisdiction for all disputes arising from or in connection with this contract shall be Potsdam.
15.3 The customer may transfer the rights and obligations arising from this contract to a third party only with the prior written consent of SimplyDelivery.
15.4 The contractual relationship between the contracting parties shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.