Status: 16.01.2023

1 Preamble

1.1 The following General Terms and Conditions including its Annex 1 (Oder Form) (jointly (“Contract”)  and Annex 2 (Data Processing Contract) governs the entire contractual relationship between govern the legal relationship between SimplyDelivery GmbH (hereinafter referred to as “SIDES”, “We” or “Us”), Wilhelm-Kabus-Str. 70, Haus 34.3, 10829 Berlin, Germany, and its Customers (hereinafter referred to as “Customer” or “You”) with regard to the subject matter of the Contract. SIDES and Customer jointly are referred to as the “Parties” or individually as a “Party”.

1.2 SIDES’s offer is directed exclusively at entrepreneurs within the meaning of Section 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 Section 13 BGB (German Civil Code).

2 Subject matter of the Contract, Order Form (Annex 1)

2.1 SIDES 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  including marketing services or individual customer software projects including website building and domain management ( “Services”). We offer to our Customers the following Services:

∙ cash register system including optional integration with third-party payment service providers

∙ Webshop,

∙ iOS and Android Apps,

∙ call centers

∙ Personnel & Fleet Management

∙ merchandise management module

∙ driver’s app

∙ self-service terminal

The Customer may choose from the above Services in accordance with their individual needs. The scope of the Services owed under the Contract depends on the particular contents as set out in the respective Order Form. 

2.2 A description of our current Services (“Service Description”) is available at https://www.get-sides.de/wp-content/uploads/230221_Leistungsbeschreibung-English-UK.pdf

2.3 In the event of discrepancies, the contractual Contract provisions shall apply in the below order (descending):

∙ Annex 2 (DPA)

∙ Annex 1 (Order Form)

∙ These General Terms and Conditions

2.4 Any deviating provisions, Terms and Conditions of the Customer or provisions going beyond these General Terms and Conditions must be expressly agreed in writing between the parties in order to become legally binding.

2.5 The assumption of a guarantee for certain characteristics, features or conditions of the Services requires written form and an express designation as “guarantee” in order to be legally effective.

2.6 SIDES 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. SIDES will inform the Customer of such circumstances in a timely manner and, if necessary, will transmit additional terms and conditions.

3 Conclusion of the Contract, Offers and Changes to the Services

3.1 If not expressly agreed otherwise, the Contract shall be concluded upon signature (digital or handwritten) of the Order Form by the Customer, but at the latest upon SIDES providing the Services in accordance with the Contract. The Term commences according to Section 15.1 as specified in the Order Form.

3.2 Delivery and performance dates or periods specified in the Contract shall only be binding if SIDES has designated them as binding in writing.

3.3 All offers made by SIDES are subject to change without notice unless expressly stated otherwise in the Order Form.

3.4 SIDES can change the functional scope of the Services at any time to an extent that is reasonable for the Customer. The change is particularly reasonable if it becomes necessary for good cause – for example due to disruptions in the provision of Services by subcontractors or for safety reasons – and the performance characteristics defined in the service description are essentially retained as well as the main performance obligations of SIDES. If the changes do not exclusively concern extensions of the function or not only insignificant components of the Services to be provided by SIDES, SIDES will inform the Customer about the change at least four weeks before it comes into effect by e-mail.

3.5 SIDES is entitled but not obliged to extend and develop the functional scope of the Services. SIDES reserves the right to offer extensions and developments only for payment of an additional fee. If the Customer purchases an extension or development for an additional fee by concluding a corresponding supplementary arrangement, the provisions of this Contract apply accordingly to this purchase. If SIDES makes extended or additional functions available free of charge after conclusion of the Contract, these functions provided are considered to be a voluntary service of SIDES. The Customer has no claim that SIDES makes those functions available in the future.

4 Obligations of the Customer

4.1 The Customer has the following obligations:

4.2 Customer Login data (password and credentials)  may not be passed on by the Customer to third parties and must be stored protected from access by third parties and may only be made available to authorised employees. 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 SIDES without undue delay and change the access data without undue delay. Access data may only be stored in encrypted form on PC, USB stick, CD-ROM and other data carriers. Furthermore, the Customer undertakes to observe all security measures, functional and other restrictions of the Services. In particular the Customer is not permitted to  remove, overcome, deactivate or otherwise circumvent protection or authentication mechanisms or use the Services for purposes other than those intended or expressly mentioned in the Contract; in particular, the Customer is not permitted to make the Services available to third parties.

4.3 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 SIDES database is technically impossible. Any data to be processed and/or backed up by SIDES which originates from the Customershall be checked for harmful components by appropriate means prior to transmission and/or input.

4.4 The Customer is solely responsible for the Internet connection required for the use of the Services 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 SIDES’s request grant such remote access at any time within the scope of the technical requirements set out in the Service Description.

4.5 In the respective section of the Order Form the Customer designates to SIDES a contact person in his company who is authorised to receive and provide legally binding declarations in connection with the Contract with SIDES.

4.6 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, SIDES will use his account and charge the Customer for the costs incurred.

4.7 In order to use the iOS App, the Customer must register an account with Apple at his own expense and grant SIDES access to the maintenance of the App.

4.8 The Customer shall – within the limits of what is technically reasonable and possible – ensure that the normal business operations of the Customer continue to function properly, even if the Services is not available, regardless of whether this is due to a fault of SIDES or the Customer.

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 Term, to access the Services offered by SIDES via the Internet and to use them for his own business purposes in the exercise of his commercial or independent professional activity in accordance with the Contract. This includes the use in the Customer’s stores named in the Order Form. The Customer does not receive any rights beyond this. The source code of the provided Services is not subject of this license.

5.2 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 If the Client orders individual Services such as graphic designs, technical developments or other  copyrightable deliverables as set out in detail as per a respective Order Form (“Deliverable”), SIDES shall grant to the Client a permanent, worldwide, transferable, sub-licensable, non-exclusive right to use the Deliverable for commercial purposes upon full payment of the applicable remuneration according to Section 6 for such Services. Overriding licensing or payment provisions may apply according the respective Order Form.

5.4 The Customer grants to SIDES a non-exclusive licence without limitation in time or place to all content which he transfers to SIDES’ servers in the context of the use of the Services, to use the content to the extent necessary to perform the Contract with the Customer, in particular to copy the content and make it accessible to third parties according to the Customer’s settings. SIDES is entitled to grant sublicenses to its sub-contractors in performance to the extent necessary for the performance of the Contract. Furthermore, the licence is not transferable. SIDES is entitled to retain Customer content beyond the duration of the Contract insofar as this is technically or legally necessary. In particular, SIDES is authorised to keep backup copies of the contents provided by the Customer and to store temporarily or permanently such information which is required for accounting, documentation and billing purposes.

6 Remuneration and terms of payment 

6.1 The remuneration agreed in the Order Form 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 Remuneration shall be invoiced by SIDES in accordance with the following provisions. Invoice amounts payable by the Customer to SIDES 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, SIDES 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 SIDES is responsible for the Customer’s termination for good cause.

6.4 Other remuneration shall be due after SIDES 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 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 Contract 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.

7 Default

7.1 In the event of a significant delay in payment, SIDES 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 is in default for more than two consecutive months, SIDES may terminate the contractual relationship for good cause.

7.3 SIDES reserves the right to assert further claims due to delayed payment.

7.4 For each unpaid invoice, the Customer shall reimburse SIDES for the costs incurred by SIDES with respect to any additional request for payment (dunning).

8 Liability

8.1 SIDES is liable for cost free Services according to the applicable statutory provisions.

8.2 In all other respects, SIDES is unrestrictedly liable for intent and gross negligence and for damages caused by injury to life, body or health.

8.3 In cases of simple negligence, SIDES is liable for the breach of a primary contractual obligation (Kardinalpflichten according to German law). A primary contractual obligation in the sense of this clause is an obligation whose performance enables the performance of the Contract and on whose performance the Customer may therefore regularly rely. 

8.4 In the case of clause 8.3 SIDES is not liable for lack of economic success, lost profits and indirect damages.

8.5 Liability pursuant to the above clause 8.3 is limited to the typical, foreseeable damage at the time of conclusion of the Contract.

8.6 In the case of 8.3, liability for damages due to loss of data is limited to the amount of data recovery that would have been incurred even if the Customer had regularly backed up the data in accordance with the risk.

8.7 The limitations of liability apply accordingly in favour of employees, agents and assistants in performance of SIDES.

8.8 Any liability of SIDES for given guarantees (which must be explicitly designated as such) and for claims based on the German Product Liability Act or data protection laws remains unaffected.

8.9 Any further liability of SIDES is excluded.

9 Domain registration and use

9.1 The Customer acknowledges that with regard to a domain registration made by SIDES, 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 SIDES 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 SIDES accordingly as stipulated within the respective Order Form.

10 Availability and Warranty

10.1 For cost free Services SIDES provides warranty according to the applicable statutory provisions. 

10.2 SIDES 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 the Customer regarding  the availability of the Services provided by SIDES.

10.3 Times during which the server cannot be reached due to technical or other problems beyond the control of the hosting provider and/or SIDES (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.

10.4 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.

10.5 Otherwise SIDES provides warranty for defects in the provision of the Services exclusively in accordance with the following provisions.

10.6 Defects are significant deviations from the contractually agreed functional scope of the Services. The Customer shall immediately notify SIDES 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. Furthermore, the Customer will support SIDES free of charge and in a reasonable manner in the remedy of defects and will in particular provide SIDES with all information and documents which SIDES requires for the analysis and remedy of defects. SIDES will remedy the defects within a reasonable period of time in consultation with the Customer by repair or replacement.  If the defect-free provision of the Services fails for reasons for which SIDES is responsible, even within a reasonable period set by the Customer, the Customer may reduce the agreed remuneration by an appropriate amount. The right to reduce the remuneration is limited to the amount of the monthly fixed price for the defective part of the service.  

10.7 If SIDES 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 for good cause. SIDES is entitled to rectify 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.

11 Claims With Respect to Third-Parties

11.1 The Customer guarantees that he will take note of all applicable legal regulations, in particular copyright and data protection law, when using the Services. The Customer indemnifies SIDES from all claims of third parties which these assert against SIDES because of the use of the Services by the Customer. SIDES will inform the Customer without undue delay of any claims asserted by third parties and provide the information and documents necessary for defence on request. In addition, SIDES will either let the Customer defend himself or will do so in consultation with the Customer. In particular SIDES will neither acknowledge nor put claims asserted by third parties beyond dispute without consultation with the Customer. The provisions of this clause apply accordingly to contractual penalties as well as fines and administrative fines imposed by court or official authorities, insofar as the Customer is responsible for them.

11.2 Upon request, the Customer shall provide SIDES with all information required for asserting claims against third parties, in particular their name and address, and immediately inform SIDES of the nature and extent of any claims it may have against them arising from the unauthorized provision of the program.

12 Force majeure

12.1 SIDES shall not be liable for events of force majeure which significantly impede SIDES’ 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 SIDES 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.

13 Changes to the General Terms and Conditions, Service Descriptions and Prices

13.1 These General Terms and Conditions can be changed between the Customer and SIDES by arrangement as described below: SIDES will send the changed General Terms and Conditions in text form before the planned entry into force and will point out the new regulations and the date of the planned entry into force separately. At the same time SIDES will give the Customer a reasonable period of at least two months to declare whether he accepts the changes for further use of the Services. If no declaration is made within this period, which begins to run from receipt of the notification in text form, the changed General Terms and Conditions are deemed to be agreed. SIDES will inform the Customer separately of his remedies, i.e. the right to object, the objection period and the meaning of tacit admission, at the beginning of the period.

13.2 Changes relating to material contractual obligations are only permitted if these are necessary because the Services provided by SIDES without the change of the material contractual obligations are necessary for reasons of IT security or due to a changed legal situation.

14 Contract term and termination

14.1 The Contract commences on the effective date specified in the Order Form.  

14.2 The initial term of the contract (“Term”) is 24 months.  After expiry of the Term, the Term shall be automatically extended by a further year unless a Party gives written notice of termination three months prior to the end of the Term. 

14.3 The right to terminate for good cause remains unaffected. An important reason for SIDES is given in particular in cases in which the Customer significantly violates the obligations incumbent upon him under the Contract.

14.4 Upon termination of the Contract, any contractual relationships for additional Services shall also terminate. 

14.5 The cancellation of individual modules of for particular Services under the Contract shall not affect the Term of the Contract and any remaining modules purchased by the Customers.

14.6 Upon termination of the Contact, the access to the Services shall be terminated. The entire database of the Customer stored on the servers of the SIDES Services must be downloaded to the Customer’s local system by the Customer in good time before the date of termination. SIDES will delete the data and access credentials after expiry of the Contract. In order to comply with the legal storage obligations, the Customer may enter into a contract with SIDES for the further storage of the data, which will incur additional costs.

15 Other conditions

15.1 SIDES is entitled to subcontract the Services to third parties.

15.2 The exclusive place of jurisdiction over all disputes under or in connection with this Contract is Potsdam, Germany, provided that the parties of the Contract are merchants or the Customer has no general place of jurisdiction in Germany or in another EU member state or has moved his permanent domicile abroad after these terms and conditions have come into effect or his domicile or his habitual place of residence is unknown at the time of the commencement of legal proceedings.

15.3 The Customer may transfer the rights and obligations arising from this contract to a third party only with the prior written consent (email sufficient) of SIDES.

15.4 The Contract is governed by German law under the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

16 SIDES acceptable use policy

You are independently responsible for ensuring that all of your actions in connection with your use of the SIDES services, regardless of the purpose of such use, comply with all applicable law. In addition, you must comply with the terms of this Usage Policy. Violation of this use policy constitutes a violation of the SIDES terms of use applicable to you.

16.1 Prohibited activities

You may not use the SIDES software for any activity that:

1. Violate any law, ordinance, rule or regulation;
2. involve activities relating to (a) cigarettes, (b) stolen goods, (c) the promotion of hate, violence, racial or other forms of intolerance that are discriminatory, or the financial exploitation of a crime, or (d) items that infringe copyrights, trademark rights, rights of publicity or privacy, or other proprietary rights under the laws of any jurisdiction.
3. are associated with transactions involving activities requiring a permit without a permit.

16.2 Activities requiring approval

Sales through the SIDES Web Store for the items and services described in more detail below require approval by SIDES:

1. alcoholic beverages
2. Tobacco products other than cigarettes, e-cigarettes, cigars.

16.3 Violations of the acceptable use policy

We encourage you to report violations of this acceptable use policy immediately to: info@get-sides.de