1.1 – These terms and conditions apply to the contract between the customer and GASTROFIX GmbH (“GASTROFIX”) contract for the provision of hardware and / or software for use on time for consideration by GASTROFIX under GASTROFIX service for restaurants (“Service”)
1.2 – These terms apply exclusively to transactions with companies, legal entities under public law and foundations under public law. An entrepreneur in the above sense is a natural or legal person or a legal partnership, who concludes a legal transaction of their business or profession.
1.3 – Any conflicting or differing terms and conditions of the customer are not part of the contract and shall not be recognized unless GASTROFIX consented to their application explicitly. This also applies if GASTROFIX his achievements in the knowledge of these contradictory or conflicting conditions of the customer unconditionally performs.
The contract between the customer and GASTROFIX is normally done by the customer via the provided order form (online or paper) or optionally via a designated special GASTROFIX App places an order of services GASTROFIX that by then the confirmation GASTROFIX is accepted in writing (eg by e-mail or letter). The contract only upon submission of the affirmation statement about through GASTROFIX.
3. The Contract
3.1 – The service includes, depending on the terms of the agreement in an individual case, in particular:
- payment transfer of software to the customer for use on time, especially the GASTROFIX software for use on specific mobile devices such as tablet PCs and smartphones (“Software”, insofar software lease)
- payment provision of accessible online storage and computing capacity for running the software in GASTROFIX data center via the Internet or as a cloud computer service
- Optional payment provision of hardware to the customer for use on time, especially mobile devices such as tablet PCs and smart phones (hardware-lease)
3.2 – If the service in the provision of online accessible storage and computational capabilities or the grant of use of the software is there, so is the service held on the data center and the servers of a company appointed by him or GASTROFIX data center or cloud service . There the GASTROFIX-server and database software runs with their described in the separate service description functionality for customers. Data centers and cloud services are located in Germany, or at least in the EU.
3.3 – The service the underlying data about the restaurant business of customers such as food and drinks, prizes, table arrangement in the restaurant, the restaurant service staff, etc. maintains the customer independently into the software on it below and operating options. GASTROFIX is expressly not guarantee that this information is complete and reflect the operation of the customer properly. GASTROFIX is also not for the correctness and accuracy of the information.
3.4 – Customer access to the Internet is not part of this contract. Unless otherwise agreed, the following applies: The customer is solely responsible for the functionality of its Internet access, including the means of transmission and, if not used, he asked GASTROFIX of hardware, its own computer or an intranet.
3.5 – GASTROFIX is entitled to alter the content of the services provided, including the software and adapt, especially in technological advancements. He will inform the customer in good time before the change in knowledge. In this case, the customer has a special right to a period of two weeks to the date change, if it changes unreasonable.
4. License granted to the GASTROFIX software
4.1 – Unless otherwise agreed, the purchaser receives the contractual software, a simple (non-exclusive), limited in time to the duration of the contract, non-transferable, non-sublicensable, revocable, and content to the intended use of the software as part of the company of the licensee limited right of use. Here, the use of GASTROFIX software or accessing the GASTROFIX cloud services is only allowed each to and from the single terminal on which the software is installed according to the contract. An additional installation on other devices is not permitted.
4.2 – Reproduction: The customer may not copy the delivered program, if the respective copying for use of the program is necessary. Necessary reproduction shall include in particular the installation of the program on the mass memory of the hardware as well as loading the program into memory.
4.3 – binding system: The customer may use the Software on the contractually specified terminal (serial number). In the case of hardware failure or other urgently necessary hardware upgrade, the software may be used on a new hardware. GASTROFIX the hardware change is immediately displayed in text form. The new system is to be named along with serial number.
4.4 – No resale and subletting: Customer may use the software, including, where appropriate, the user’s guide and other accompanying material third party sell or lease a limited time left, especially not rent or lend. Is permitted, however, the transfer to third parties, where no independent right of use is granted and must bow to the nature and manner of use of the will of the licensee. This is particularly important for employees of the customer is usually the case.
4.5 – Prohibition of multiple uses: If the licensee’s hardware, he must delete the software from the hardware used. Any isochronous storage, keeping or use on more than one hardware is prohibited.
4.6 – Any other use than what follows from the above and the contract, the customer is prohibited without the consent of GASTROFIX.
4.7 – The Customer shall take adequate measures to comply with the agreed scope of license. The customer is especially not entitled to sell the service or parts thereof, transmit, sublicense, distribute, commercially offer as part of our own products or services or in any other way to make (the Third) available or usable.
4.8 – serving trademarks, service marks, copyright notices, serial numbers or other identifying GASTROFIX or affixed by GASTROFIX characteristics may be altered or removed by the customer. The same applies to a suppression of the screen display of such features.
5. Terms of payment, set-off and retention
5.1 – All prices refer to the net prices and are exclusive of VAT.
5.2 – As far as hardware and / or software is on loan, the monthly rent is payable in advance. As far as hardware / software was purchased, the asset remains the property of GASTROFIX up to the complete payment.
5.3 – Unless otherwise agreed, invoices are payable immediately upon receipt. If the customer participates on (SEPA-) Direct Debit, the bill is drawn upon delivery of the goods. Uncashed or returned direct debits are not being drafted again. The customer is responsible for any bank fees plus a processing fee of € 10,-.
5.4 – In general, counter-claims of GASTROFIX on the contract price can be offset against receivables only with undisputed or legally established. The customer may only exercise a right of retention if his counterclaim is based on the same legal relationship. In the case of the presence of defects, the customer is entitled to a lien only if the amount withheld is not the defect-related reduction in value of the relevant power or the estimated cost of remedy or removal of defects exceeds.
5.5 – In the event of non-payment GASTROFIX may suspend the provision of the service temporarily until the debt is repaid in full. The ongoing compensation claim is not affected by such an access lock. The re-activation takes place immediately after the arrears.
6. Contract Period
6.1 – Unless agreed otherwise (e.g. test contract), the following applies: The contract has a minimum term of three months. It is automatically renewed for a further period of three months, if it is not terminated with a notice period of three months to the end of the final month.
6.2 – The right to terminate for good cause remains unaffected. For GASTROFIX is an important reason, if in all the circumstances of the individual case and on the balance of interests of both parties to continue the contractual relationship is unacceptable to the end of the agreed period for GASTROFIX. GASTROFIX is particularly entitled to terminate the contract for cause if:
- the customer is insolvent or is in debt or, if an application to open insolvency proceedings instituted against him and not rejected as unfounded or the conduct of insolvency proceedings is rejected for lack of assets.
- if the customer contract obligations grossly violated and that breach is not on the written request of GASTROFIX completed within a reasonable time. A warning or a deadline is not required if the continuation of the contract due to the severity of the violation appears to be unreasonable, success can not be expected or the immediate termination consideration of the mutual interests is justified.
6.3 – Cancellations must be done in written form.
7. Availability of Service GASTROFIX
7.1 – GASTROFIX strives to provide access to the service to all customers 24 hours a day and seven (7) days per week. Temporary business interruptions due for routine maintenance, systemic disorders of the Internet in foreign providers or foreign carriers, and in the case of force majeure, however, are possible. The customer has therefore not entitled to a full-time, uninterrupted access to the service.
7.2 Unless the parties have agreed in the terms of reference or otherwise in a specific service availability and otherwise provided, then: The availability of the services of GASTROFIX is considered not impaired, if and when the database or the service during the maintenance of the system required maintenance periods and breaks for offline backups, each in an appropriate framework, as well as interruptions due to force majeure or other of GASTROFIX not preventable causes, such as Emergency measures to prevent a massive outbreak, Internet failures or communication networks, power failures, storms, floods, and similar events, where GASTROFIX is not responsible for this.
8.1 – The Customer shall indicate GASTROFIX any defects, faults or damage to the rental equipment for use no delay.
8.2 – shortcomings of the software, including, where appropriate, the handbooks and other documents are of GASTROFIX corrected after notification of the defect by the customer within a reasonable time. The corrective action shall either GASTROFIX by free repair or replacement.
8.3 – downtime of the property let, which are due to the customer is responsible, by operation or treatment, or other defects which are caused by the non-conforming, the customer is responsible use entitle the customer to rent reduction.
8.4 – The client may not impose a fee reduction by deduction from the agreed fee. Appropriate enrichment or claims for damages shall remain unaffected.
8.5 – The Customer’s rights based on defects are excluded, unless the latter will without the consent of GASTROFIX changes to the rental or allows to be, unless the customer can prove that the changes will not have an unacceptable impact on GASTROFIX for analysis and removal of the defect . The rights of the customer are not affected because of defects, unless the customer pursuant to make any changes, especially in the exercise of self-disposal laws. § 536a paragraph 2 BGB is entitled, and these were expertly executed and documented.
8.6 – The right of termination by the customer for non-payment of utility under § 543 paragraph 2 sentence 1 No. 1 German Civil Code is excluded, unless the repair or replacement is considered failed.
8.7 – Strict liability for initial defects in the rental agreement pursuant to § 536a paragraph 1 BGB is excluded.
9.1 – GASTROFIX unlimited liability in accordance with the statutory provisions for loss of customers, which are caused by intentional or grossly negligent conduct of GASTROFIX or his agents, as well as for personal injury and damage to the product liability law.
9.2 – The liability of GASTROFIX claims for damages pursuant to the following provisions shall be limited to the extent that not a guarantee assumed by GASTROFIX provides otherwise:
- For damages caused by slight negligence GASTROFIX liable only if they are based on the breach of contractual obligations (cardinal obligations). Cardinal obligations are such contractual obligations, the proper performance of the contract possible in the first and was allowed on the fulfillment of the customer. As far GASTROFIX liable for slight negligence, the liability of GASTROFIX is limited to the typically foreseeable damage.
- The liability of GASTROFIX for slightly negligent loss of data and / or programs is the typical cost of restoration is limited, which would be incurred on a regular and the circumstances appropriate data backup by the customer.
9.3 – The provisions of the preceding paragraph, corresponding to the limitation of damages for wasted expenditure (§ 284 BGB).
9.4 – The aforementioned liability restrictions also apply to subcontractors of GASTROFIX.
10.1 – The Parties undertake, operating and business secrets of the other party, they – have obtained at the initiation of the contract or the contract, to be kept confidential – including their agents. These obligations do not apply to information, knowledge and experience, the
- evidence is generally known without breach of this confidentiality obligation,
- the parties were demonstrably known already before the information, knowledge and experience,
- been obtained from a third party without obligation of confidentiality
- been developed or are demonstrably independent.
11. Data Protection
11.1 – GASTROFIX compliance with legal requirements for data protection is important, in particular the relevant provisions of the German Telemedia Act (TMG) and Telecommunications Act (TKG) and the Federal Data Protection Act (Act).
11.2 – The GASTROFIX-software enables the acquisition of certain personal data related to the customer or to the customer’s employees engaged in the operation, such as waiters and operating personnel and optional passenger data. The software allows the anonymous collection of the use and assignment of pseudonyms or employee numbers, known only to the customer himself. These data include inter alia
- Accounting for all relevant transactions or GoBD (eg created by the staff or guests made and processed orders, purchase cancellations, etc.) all for control and optimization of the ordering and billing processes necessary data (particularly data on Bonsteuerung, any peripheral devices, etc.)
- This data is used for accounting and cost accounting regular evaluation of the operation of the customer. A creation of personalized user profiles by GASTROFIX even takes place. GASTROFIX itself has no access to this personal information in connection with the real name of the person concerned.
Diese Daten dienen zur buchhalterischen und kostenrechnungsmäßigen Auswertung für den Betrieb des Kunden. Eine Erstellung personalisierter Nutzerprofile durch GASTROFIX selbst findet nicht statt. GASTROFIX hat selbst keinen Zugriff auf diese personenbezogenen Daten in Verbindung mit den Klarnamen der Betreffenden.
11.3 – The customer decides itself, which data he enters into the GASTROFIX system. As far as he himself related to personal data enters there, he agrees to the data processing, storage and transmission in the context of the system. As far as he can enter personal information of its employees there or enter, he himself is possibly responsible for the obtaining of any necessary data protection consent of the subject.
11.4 – individuals or companies whose personal data is stored GASTROFIX have, always have a right to access, amend and block your stored data. GASTROFIX uses technical and organizational security measures to protect the data managed by GASTROFIX data against accidental or intentional manipulation, loss, destruction or against access by unauthorized persons.
11.5 – Contact for Privacy in GASTROFIX: Questions for the collection, processing or use of personal information, the disclosure, correction, blocking or deletion of data and revocation of consents granted, please contact: Tomasz Dubik, Alex-Wedding-Straße 7, D-10178 Berlin: firstname.lastname@example.org
11.6 – your data are always available anywhere: On the one hand are all ever generated transaction data stored always encoded on all used iPads / iPods. On the other hand, the data in an existing Internet connection in a few seconds are transmitted to your personal cloud. There, you can export your transaction data in GoBD-compliant format at any time by clicking in a CSV or Excel spreadsheet and also secure home locally. After the end of the contract, you will automatically receive one month all transaction data in GoBD-compliant format of emailed us. If you have any reviews of financial authorities you have the possibility, even after termination of the contract vorzuhalten within and beyond the statutory period of 10 years, all POS data.
12. information on new offers from GASTROFIX
12.1 – GASTROFIX is entitled contacted the customer during the contract period in terms of new developments and products from GASTROFIX. The customer can withdraw consent at any time.
13. Amendment of Terms and Conditions
13.1 – Changes to these General Terms and Conditions (“Terms”) are communicated to the client in writing, the changes from the previously valid Policies are highlighted.
13.2 – The customer may object to such a change. It did so on his opposition GASTROFIX by e-mail to the email@example.com or in writing within four (4) weeks from receipt of the notification of GASTROFIX amending the Conditions (hereinafter “amendments”) to explain. The deadline is only kept if the objection is received within the deadline GASTROFIX. If the customer does not contradict a positive and timely manner, the alterations are approved and the amended terms and conditions are part of the contract, on this and on the form and time limit for withdrawal is GASTROFIX clearly state this in the notice of the change.
If the customer changes the form and in due time, will the policy remain unchanged. GASTROFIX has in this case the right to terminate the contract within a period of four weeks written notice to the customer, provided that an adherence to the unchanged contract for GASTROFIX is economically or technically impossible or unreasonable.
14. Applicable law, place of performance and jurisdiction
14.1 – This Agreement is governed by the law of the Federal Republic of Germany excluding the UN Sales of Goods (CISG).
14.2 – Place of Performance is Berlin.
14.3 – For all present and future claims arising from or relating to this contract with merchants, legal persons under public law or public special fund, the exclusive place of jurisdiction. The same jurisdiction applies if the customer has no general jurisdiction in Germany, after the contract moved its headquarters or habitual residence abroad or the seat or habitual residence at the time of action is not known.
15. Special rules for the hardware purchase
15.1 Insofar as GASTROFIX also sells hardware to the customer in connection with the GASTROFIX software and nothing else is agreed, the following general provisions shall apply:
15.2 Retention of title: Supplied goods remain property of GASTROFIX until full payment is made.
15.3 Warranty for the hardware sold:
- If GASTROFIX must render supplementary fulfilment due to a defect covered by the warranty, the choice whether the supplementary fulfilment is to take place by way of rectification or replacement of a flawless item shall lie with GASTROFIX.
- Inspection obligation and reporting of defects: Obvious defects of the sold hardware shall be reported to GASTROFIX in writing without delay, at the latest within 14 calendar days of the delivery of the goods; concealed defects shall also be reported in writing without delay, at the latest within 14 calendar days of their discovery. If the defects are not reported in due time, the customer’s warranty rights for the defect not reported in due time will be excluded. However, this shall not apply if GASTROFIX maliciously concealed the defect and/or has provided a guarantee in this connection.
- No warranty is provided for damage resulting from improper or unsuitable use, faulty commissioning or installation, natural wear and tear, negligent or incorrect use, non-compliance with the maintenance or operating instructions and unqualified repair work or modifications by the customer or third parties.