Terms & Conditions
1.1 These General Terms and Conditions ("GTC") shall apply to contracts for the sale or lease of hardware and/or performance of services and/or provision of software by Gastrofix GmbH, the owner of the brand “PEPPERKORN”, (hereafter referred to as “PEPPERKORN”) for temporary use against payment within the scope of the PEPPERKORN service ("Service"), which are concluded between a customer and PEPPERKORN.
1.2 These GTC shall apply exclusively to business transactions with entrepreneurs. An entrepreneur in the context of the preceding sentence is any natural person, legal entity or incorporated partnership that concludes a legal transaction in exercise of its commercial or self-employed business activity.
1.3 Conflicting or deviating terms and conditions of the customer shall not be part of the contract and will not be acknowledged, unless PEPPERKORN expressly agrees to the applicability of such. This shall apply even if PEPPERKORN performs its services without any reservations despite being aware of the conflicting or deviating terms and conditions of the customer.
1.4 Individual written agreements with the customer (including side agreements, supplements and amendments) shall always have precedence over these GTC.
- Contract Conclusion
Normally, the contract conclusion between the customer and PEPPERKORN takes place as follows: The customer uses the designated order form (online or in paper form) or a special PEPPERKORN app designated for this purpose to place an order with PEPPERKORN, which PEPPERKORN confirms in writing (e.g. by e-mail or letter). The contract comes into existence only upon express declaration of confirmation by PEPPERKORN. Regular customers can also order certain additional services of PEPPERKORN by e-mail, fax, telephone or directly via their online access; in this case, the contract comes into existence when PEPPERKORN performs the additional services, without any need for express declaration of acceptance.
- Subject Matter
3.1 Depending on the contractual agreement in the individual case, the Service especially includes the following:
- Provision of software to the customer against payment for temporary use, especially the PEPPERKORN app, for use on certain mobile terminal devices such as tablet PCs and smartphones ("Software" under a software lease agreement)
- Provision of the possibility to use the online PEPPERKORN cloud and online storage space and computing capacities for the operation of the PEPPERKORN software in the PEPPERKORN data centre via the Internet/as a cloud computing service against payment
- Optional: Sale of hardware – especially of terminal devices such as tablet PCs, printers or routers – to the customer (hardware purchase contract)
- Optional: Letting of hardware – especially of mobile hardware such as tablet PCs, printers or routers – to the customer for temporary use against payment (hardware lease agreement)
3.2 If the Service consists of the provision of the possibility to use software that is accessible online and online storage space and computing capacity, the Service will be provided via the data centre/servers of PEPPERKORN or a data centre or cloud service commissioned by PEPPERKORN. There, the PEPPERKORN server and data base server runs with the functionality for the customer as described in the separate service description. The data centre/cloud service is located in Germany or in the EU.
3.3 The customer autonomously enters the data underlying the Service concerning the customer's business, such as the food and beverage offer, prices, table arrangement, service staff, etc. in the software using the designated fields and control options. PEPPERKORN expressly disclaims any responsibility for ensuring that the data are complete and correctly depict the customer's business. Moreover, PEPPERKORN does not assume any responsibility for the up-to-dateness, correctness and accuracy of the information.
3.4 The customer's access to the Internet is not part of the subject matter. Unless otherwise agreed, the following shall apply: The customer alone shall be responsible for the operability of his Internet access including the transmission routes, his internal network and his own hardware, unless the hardware is provided by PEPPERKORN.
3.5 PEPPERKORN may modify and adapt the content of the Service including the provided software, especially in the case of technological progress, provided that this does not impair the contractually agreed functionality. PEPPERKORN will inform the customer of such changes early enough in advance. In this case, the customer shall have a special right of termination with two weeks' notice, effective as of the date of the change, in case he cannot reasonably be expected to accept the changes.
- Licensing of PEPPERKORN Software
4.1 Unless otherwise agreed, the licensee is granted a non-exclusive, non-transferable, non-sub-licensable and revocable right to use the software constituting the subject matter for the term of the contract and in accordance with the intended purpose of the software within the scope of the licensee's enterprise. Use of the PEPPERKORN software and access to the PEPPERKORN cloud services is only permitted on/from the individual terminal device on which the software is installed according to the contract. Additional installation on other devices is not permitted.
4.2 Reproduction: The customer may reproduce the supplied software insofar as the particular reproduction is necessary for the use of the software. Necessary reproduction includes but is not limited to the installation of the software on the mass storage medium of the utilised hardware and the loading of the software into the main memory.
4.3 System earmarking: The customer may use the software on the contractually determined terminal device (serial number). In the case of a hardware failure or a necessary hardware change for other reasons, the software may be used on new hardware. The hardware change shall without delay be communicated to PEPPERKORN in writing. The new system shall be specified along with the serial number.
4.4 No resale or subletting: The customer is not permitted to sell or temporarily provide the software including the user manual and other accompanying material to third parties, especially not to let or lend it. However, the provision to third parties who are not granted any independent right of use and who must use it according to the will of the licensee is permitted. This usually applies especially to employees of the customer.
4.5 Prohibition of multiple use: If the licensee replaces the hardware, he must delete the software from the previously used hardware. Concurrent storage, provision or use on more than one hardware entity is prohibited.
4.6 Without the approval of PEPPERKORN, the customer is prohibited from any use beyond the aforesaid scope and the content of the contract.
4.7 The customer shall take suitable measures to comply with the agreed licence scope. In particular, the customer is not authorised to sell, transfer, sublicense, distribute, commercially offer as part of its own services or products or otherwise make available or allow (third parties) to use the Service or parts of it.
4.8 The customer shall not remove or modify trademarks, company marks, copyright marks, serial numbers or other features that serve the identification by PEPPERKORN or that have been affixed by PEPPERKORN. The same applies to the suppression of the respective features displayed on screen.
- Terms of Payment, Offsetting and Rights of Retention
5.1 All prices are quoted net and are subject to value-added tax. The customer will not receive any separate invoices for payments incurred at monthly intervals or for other billing periods. The signed offer (the contract) is recognised by the revenue office pursuant to Section 15 of the German Value-Added Tax Act (UStG), as it contains all legally required elements of an invoice pursuant to Section 14 of the German Value-Added Tax Act (UStG).
5.2 As a matter of principle, the following shall apply: If hardware and/or software and/or other services are provided or performed against an agreed monthly fee or a fee for a shorter period (e.g. daily or weekly), the agreed fee or licence and support fee (hereinafter referred to as "Fee") shall be due as of the end of every month.
If the customer has selected the payment for a longer period (e.g. half-yearly or yearly) in the respective offer, the agreed Fee shall be paid in advance for the selected period (i.e. six or 12 months).
5.3 Unless otherwise agreed, invoices are payable immediately upon receipt. If the customer participates in the (SEPA) direct debit procedure, the invoice amount will automatically be collected by PEPPERKORN. Direct debits that cannot be collected or that are returned will be collected once again. The customer shall bear the incurred bank charges plus a processing charge of €10.00.
5.4 As a matter of principle, the following shall apply: Only undisputed or legally established counterclaims may be offset against claims of PEPPERKORN for the contractual remuneration. The customer may only exercise his right of retention if his counterclaim is based on the same legal relationship. In the event of defects, the customer shall only have a right of retention to the extent that the retained amount does not exceed the reduced value of the affected performance due to the defect or the prospective costs of supplementary fulfilment or elimination of defects.
5.5 If the customer is in arrears with a payment, PEPPERKORN may temporarily suspend the performance of the Service and deactivate the customer's access until full payment is made, unless this would violate the principle of good faith, e.g. if the open payment pertains to a relatively small amount. The ongoing remuneration claim shall remain unaffected from such access deactivation or suspension of the Service. The re-activation will take place immediately upon payment of the arrears.
- Term and Termination
6.1 Unless otherwise agreed, the following shall apply: The contract has a minimum term of three months. If the customer selects a longer period as payment method in the respective offer (e.g. half-yearly or yearly), (hereinafter referred to as "billing period"), the minimum term shall correspond to the selected billing period (i.e. the minimum period is half a year or one year). The contract will automatically be renewed for the period of the agreed minimum term unless it is terminated with three months' notice, effective at the end of the respective contract term.
6.2 The right to termination for good cause remains unaffected. In particular, PEPPERKORN may terminate the contract for good cause if:
- the customer is in arrears with the payment of the respective invoice for two consecutive months or with the payment of the fee in an amount that equals the agreed licence fee for two months in a period that extends over more than two months; or
- the customer is guilty of a gross breach of contractual duties and this breach is not stopped within a reasonable period after being requested by PEPPERKORN in writing to do so. A warning and grace period are not required if the continuation of the contractual relationship appears to be unacceptable due to the severity of the breach of duties, no success can be expected or immediate termination appears to be justified under consideration of the interests of both parties.
- 3 Notices of termination must be given in writing.
- Availability of the PEPPERKORN Service
7.1 PEPPERKORN warrants the contractually agreed availability of the Service. However, this is not associated with any guarantee.
7.2 The precondition for claims of the customer in the event of availability problems is always that the customer reports the availability problems to PEPPERKORN without delay and – as far as he is able and can be expected to do so – has provided plausible documented evidence in order to enable PEPPERKORN to check and eliminate the cause of the respective problem.
7.3 PEPPERKORN shall not be liable for interruptions of the availability due to force majeure. Theft, general Internet malfunction or other circumstances shall have the same effect as force majeure to the extent that they are unforeseeable, serious and occur through no fault of PEPPERKORN. As far as it is possible and can reasonably be expected under consideration of the circumstances, PEPPERKORN shall inform the customer without delay of the occurrence of such an event. PEPPERKORN shall take all economically acceptable measures in order to ensure quick elimination of such malfunctions.
7.4 PEPPERKORN shall in no case be liable for availability problems caused by the customer or the customer's telecommunications provider, access provider or mobile phone provider or otherwise by third parties attributable to the sphere of the customer.
8.1 The customer shall without delay inform PEPPERKORN of any defects, malfunction or damage of the rental items provided for use.
8.2 Defects of the provided software including any manuals and other documents will be eliminated by PEPPERKORN within a reasonable time after the customer duly reports the defect. The elimination of defects will take place by way of free rectification or replacement, as PEPPERKORN may choose.
8.3 Downtimes of the rental item as a result of improper operation or treatment for which the customer is responsible or other defects resulting from the customer's use in breach of the contract do not entitle the customer to reduce the rent.
8.4 The customer is not permitted to enforce a reduction of the remuneration by way of deduction from the agreed remuneration. Any unjust enrichment or compensation claims of the customer in this connection remain unaffected.
8.5 The customer's termination right due to failure to grant the use pursuant to Section 543 (2) sentence 1 no. 1 of the German Civil Code (BGB) shall be excluded unless the rectification or replacement must be considered failed.
8.6 Strict liability for initial defects in the lease agreement pursuant to Section 536a (1) of the German Civil Code (BGB) is excluded.
9.1 PEPPERKORN shall be liable according to the statutory provisions for damage incurred by the customer due to intent or gross negligence of PEPPERKORN or its agents as well as for personal injury and damage according to the German Product Liability Act (ProdHaftG).
9.2 Apart from this, the liability of PEPPERKORN for compensation claims is limited according to the following provisions, unless a guarantee provided by PEPPERKORN stipulates otherwise:
- PEPPERKORN shall only be liable for damage caused by slight negligence insofar as such is the result of the breach of material contractual duties (cardinal duties). Cardinal duties are contractual duties whose fulfilment is essential to the due performance of the contract and whose fulfilment the customer can rightly rely on. In cases in which PEPPERKORN is liable for slight negligence hereunder, the liability of PEPPERKORN shall be limited the typically foreseeable damage.
- The liability of PEPPERKORN for loss of data and/or software caused by slight negligence is limited to the typical recovery expenses that would have been incurred if the customer had regularly made backups in the scope that would have been appropriate under the circumstances.
9.3 The provisions of the preceding subsection shall apply analogously to the limitation of the obligation to refund expenses made in vain (Section 284 of the German Civil Code (BGB)).
9.4 The aforesaid limitation of liability shall also apply to agents of PEPPERKORN.
The contracting parties undertake to treat as confidential business and company secrets of the other party that they and their agents gain access to in the course of the initiation or fulfilment of the contract. These obligations do not apply to information, knowledge and experiences that
- are provably publicly known without any breach of this non-disclosure obligation;
- had provably already been known to the parties prior to the receipt of the information, knowledge and experiences;
- have been received from a third party without any non-disclosure agreement; or
- have provably been developed independently.
- Data Protection
11.1 PEPPERKORN puts emphasis on complying with the statutory regulations on data protection, including but not limited to the relevant provisions of the German Telemedia Act (TMG), the German Telecommunications Act (TKG) and the German Federal Data Protection Act (BDSG).
11.2 The PEPPERKORN software enables the input of certain personal data of the customer and of the employees working for the customer's business, such as waiters, service staff and optionally guest data. The software enables anonymised input by using and allocating aliases or staff numbers that only the customer knows. These data include
- all transactions relevant to the accounting/the German Principles for Duly Maintaining Keeping and Storing Books, Records and Documents in Electronic Form and for Data Access (GoBD) (e.g. orders made by employees and guests and processed, login/logout, etc.)
- all data required for managing and optimising the order and billing processes (especially data for managing receipts, any peripheral equipment, etc.)
These data serve the accounting and costing analysis for the customer's business. PEPPERKORN does not create any personalised user profiles. PEPPERKORN does not have any access to these personal data in connection with the real names of the respective persons.
11.3 The customer himself determines which data to enter in the PEPPERKORN system. By entering his own personal data, he consents to the data processing, storage and transfer within the scope of the system. If he enters personal data of his employees or customers or lets such data be entered, he shall be responsible for obtaining any required consent of the data subject, which may be required under data protection law.
11.4 Persons or companies whose personal data PEPPERKORN has stored are entitled to request free information, correction and blocking of their stored data at any time. PEPPERKORN employs technical and organisational security measures in order to protect the data managed by PEPPERKORN against accidental or intentional manipulation, loss, destruction or unauthorised access.
11.5 Contact for data protection at PEPPERKORN: If you have any questions concerning the collection, processing or use of your personal data, to request information, correction, blocking or deletion of data and to revoke previously granted consent, please contact: Tomasz Dubik, Marienburger Str. 16, 10405 Berlin, Germany; email@example.com
11.6 The data are available to the customer at any time and from any location: Firstly, all transaction data ever generated are always stored on all utilised iPads/iPods in coded form. Secondly, the data are regularly transmitted to the PEPPERKORN cloud whenever an Internet connection is available. There, the customer can export the transaction data with a mouse click in a GoBD-compliant format to a CSV or Excel spreadsheet and also back them up locally at home. In the event of audits by the tax authorities, the customer can thus retain all cash register data during and beyond the period of 10 years as required by law, even after the termination of the contractual relationship.
11.7 Creditworthiness check: For new contracts, PEPPERKORN checks the respective customer's creditworthiness. For this purpose, the required data of the customer are transmitted to Bürgel Wirtschaftsinformationen GmbH & Co. KG. Depending on the result of the creditworthiness check, the amount of the down payment to be made for hardware and services such as installation/training ranges from 50 to 100 per cent.
- Amendments to the General Terms and Conditions
12.1 Amendments to these GTC will be communicated to the customer in writing, highlighting the changes compared to the previously valid GTC.
12.2 The customer may object to such amendments. For this purpose, he must declare his objection to PEPPERKORN by e-mail to firstname.lastname@example.org or in writing within four (4) weeks of the receipt of PEPPERKORN's notice concerning the amendments to the GTC (hereinafter referred to as "amendments"). This period will only be deemed complied with if the objection reaches PEPPERKORN within this period. If the customer does not object in due time and form, the amendments will be deemed approved, and the amended GTC will become part of the contract; in its notice concerning the amendment, PEPPERKORN will expressly draw attention to this and to the form and deadline for the objection.
If the customer objects to the amendments in due form and time, the contract shall continue in its original form. In this case, however, PEPPERKORN may terminate the contract with four weeks' written notice in case the continuation of the original contract is economically or technically impossible or unacceptable for PEPPERKORN.
- Applicable Law, Place of Fulfilment and Jurisdiction
13.1 This contract is governed by the laws of the Federal Republic of Germany, under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
13.2 The place of fulfilment of the services is Berlin, Germany.
13.3 The courts of Berlin, Germany, shall have exclusive jurisdiction over all present and future claims arising from or in connection with this contract with merchants, legal entities under public law or funds under public law. The same place of jurisdiction shall apply if the customer does not have any general place of jurisdiction in Germany, if he relocates his domicile or habitual place or residence to another country after the conclusion of the contract or if the domicile or habitual place of residence is not known at the time when legal action is taken.
- Special Regulations for Hardware Purchase
14.1 Insofar as PEPPERKORN also sells hardware to the customer in connection with the PEPPERKORN software and nothing else is agreed, the following general provisions shall apply:
14.2 Retention of title: Supplied goods remain property of PEPPERKORN until full payment is made.
14.3 Warranty for the hardware sold:
- If PEPPERKORN 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 PEPPERKORN.
- Inspection obligation and reporting of defects: Obvious defects of the sold hardware shall be reported to PEPPERKORN 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 PEPPERKORN 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.
- Warranty claims of the customer concerning purchased hardware expire one year after the delivery of the purchased item to the customer.