Stand: 07.02.2024

The GTC are merely a translation. Legal formulations are without guarantee. The original can be viewed here.  

1 Preamble

1.1. The offer signed by the customer together with the signed attachment to this order with the acceptance form & SEPA, the acceptance of the AVV, if applicable acceptance SIDES Pay conditions (presented and handed over as a separate attachment to the offer) and the confirmation according to § 13 BGB regulate including these following general terms and conditions (together “contract”) the entire contractual relationship between SimplyDelivery GmbH (hereinafter “SIDES”, “we” or “us”), Wilhelm-Kabus-Str. 70, Haus 34.3, 10829 Berlin and its customers (hereinafter referred to as “customer” or “you”; together with SIDES hereinafter also referred to as “the parties”) with regard to the subject matter of the contract. The parties may – e.g. for special content such as “Google Food Ordering” – agree additional, supplementary or deviating terms and conditions in writing with the customer as part of the offer.

1.2. The SIDES offer is aimed exclusively at entrepreneurs within the meaning of § 14 of the German Civil Code (BGB). Entrepreneurs are natural or legal persons or a partnership with legal capacity who, when concluding a legal transaction, are acting in the exercise of their commercial or independent professional activity. Against this background, by concluding the contract, the customer declares that he is an entrepreneur and not a consumer within the meaning of Section 13 BGB.

2 Subject matter of the contract, offer

2.1. SIDES provides the customer with software for use via the Internet (Software-as-a-Service) in the form of cloud services (hereinafter “SaaS services”). In addition, SIDES offers its customers further services including marketing services or customised software projects including website creation and domain management (hereinafter “supplementary services”). SaaS services and the supplementary services (together “services”) form the subject matter of the contract, insofar as these have been ordered by the customer. The customer can choose from the services offered by SIDES according to his individual needs. The scope of the contractually owed services depends on the respective content of the offer.

2.2. A description of our current services (“Service description”) can be found at https://www.get-sides.de/wp-content/uploads/2022/03/Leistungsbeschreibung.pdf.

2.3. In the event of ambiguities or deviations, the contractual provisions shall apply in the following order (descending):

∙ Order processing contract (AVV)

∙ Offer and attachments (e.g. SIDES Pay conditions, acceptance form & SEPA)

∙ These General Terms and Conditions

2.4. Any deviating provisions, general terms and conditions of the customer or provisions that go beyond these General Terms and Conditions require express written agreement between the parties in order to be legally effective.

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

2.6. In order to be able to use the services of SIDES with their full functionality, it may be necessary for the customer to have additional access to third-party software, interfaces/APIs or other third-party services (e.g. their own Google Play Developer Account), hereinafter collectively referred to as “third-party services”. Third-party services may be subject to a charge for the customer depending on the respective contract concluded between a third-party provider and the customer for these third-party services. Any contracts for third-party services are concluded without the legal involvement of SIDES. SIDES points out to the customer within the scope of its own service description whether and if so which third-party services are required so that the customer can use the services to their full extent.

3 Conclusion of contract, offers, changes to services and the customer’s duty to co-operate  

3.1. Unless expressly agreed otherwise, the contract is concluded when the offer is signed (digitally or by hand) by the customer. The term begins in accordance with section 14 as stated in the offer.

3.2. Delivery and service dates or deadlines stated in the contract are only binding if SIDES has designated them as binding in writing. Insofar as specific start dates for the provision of services by SIDES to the customer have been expressly specified, the services are payable from this date.

3.3. 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 an important reason – for example due to disruptions in the service provision by subcontractors or for security reasons – and the service features defined in the service description as well as the essential service obligations of SIDES essentially remain unchanged. If the changes do not exclusively concern functional enhancements or not only insignificant components of the services to be provided by SIDES, SIDES will inform the customer of the change by e-mail at least four weeks before it comes into effect.

3.4. SIDES reserves the right to offer extensions and further developments only for an additional fee. If the customer acquires an extension or development for an additional fee by concluding a corresponding additional agreement, the provisions of this contract shall apply to this acquisition accordingly and insofar as the parties do not agree any additional provisions regarding the provision of such extended or additional services. If SIDES makes extended or additional functions available free of charge after the conclusion of the contract, these are considered voluntary services of SIDES. The customer has no claim to SIDES providing these functions in the future. The customer is obliged to provide the respective cooperation services (hereinafter referred to as “cooperation obligations”) in order to enable SIDES to fulfil its performance obligations in accordance with the contract. These obligations to co-operate include – as far as applicable to the customer according to the services ordered by the customer: The participation in onboarding appointments offered by SIDES, the complete and timely provision of the customer’s own content (e.g. menus), the proper execution of appointments for the setup agreed jointly with SIDES in the case of SaaS services. Further obligations to co-operate may arise directly or indirectly from the communication between the parties. If SIDES is prevented or impaired from providing the services owed on time or to a sufficient extent because the customer has failed to fulfil his own obligations to cooperate in breach of duty, the customer owes SIDES the full remuneration in accordance with clause 7.

4 Use of the SIDES Pay solution

 Insofar as the customer uses SIDES Pay within the scope of his contract with SIDES, the applicable conditions and provisions in this respect result from the contents of the SIDES contract offer and from the SIDES Pay supplementary GTC provisions to be accepted within the scope of SIDES Pay use, which the customer must agree to separately. 

5 Obligations of the customer

5.1. The customer has the following obligations:

5.2. Customer login data (password and access data) may not be passed on to third parties by the customer and must be kept protected from access by third parties and may only be made accessible to authorised employees. For security reasons and in the customer’s own interest, they must be changed before initial commissioning and then at regular intervals. If there is reasonable suspicion that unauthorised persons have gained knowledge of the access data, the customer must inform SIDES immediately and change the access data without delay. The access data may only be stored in encrypted form on a 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 to use the services for purposes other than those intended or expressly stated in the contract; in particular, the customer is not permitted to make the services accessible to third parties.

5.3. It is the customer’s responsibility to regularly export copies of the customer data entered by him or his users and to create backup copies or to print out and save the corresponding information. The customer is aware that a complete copy of the SIDES database is not technically possible. All data to be processed and/or backed up by SIDES, which originate from the customer, must be checked for harmful components by suitable means before transmission and/or input.

5.4. The customer is solely responsible for the Internet connection required to use the services and for the operational readiness and functionality of the hardware and software environment (such as PC, network connection, browser, etc.) required in accordance with the respective service description. If and insofar as remote access is required for the maintenance and servicing of the services, the customer shall grant this remote access at any time at the request of SIDES within the scope of the technical requirements specified in the service description.

5.5. In the corresponding section of the offer, the customer names to SIDES a contact person in his company who is authorised to receive and make legally binding declarations in connection with the contract with SIDES.

5.6. In order to use the SaaS services to their full extent, the customer must register an account with Google Maps. If the customer does not register their account for the Google Maps services, the customer will not be able to use the corresponding functions. In this case, the customer shall continue to owe the contractually agreed remuneration in full.

5.7. In order to use the iOS app, the customer must register an account with Apple at their own expense and grant SIDES access to maintain the app.

5.8. The customer must – within the scope of what is technically reasonable and possible – ensure that the customer’s normal business operations continue to run properly even if the services are unavailable, regardless of whether this is due to the fault of SIDES or the customer.

5.9. The customer is solely responsible for ensuring that all his actions in connection with the use of the SIDES services/software comply with all applicable law, regardless of the purpose of use. In addition, you must comply with the provisions of this Acceptable Use Policy. A breach of this Acceptable Use Policy constitutes a breach of the SIDES Terms of Use applicable to you. Customer may not use the SIDES Software for any activity that: violates any law, ordinance, rule or regulation;

6 Rights of use

6.1. SaaS services: From the beginning of the term of the contract and subject to the condition precedent of full payment of the remuneration owed in each case in accordance with clause 6, the customer shall receive the non-exclusive, revocable, non-transferable and non-sublicensable right, limited in time to the term of the contract, to access the SaaS services via the Internet and to use them for his own business purposes in the exercise of his commercial or independent professional activity within the limits of the intended use (hereinafter “SaaS licence”). From a geographical perspective, the SaaS licence only covers use in the customer’s business specified in the offer. The customer shall not be granted any further rights.

6.2. In terms of content, the SaaS licence only covers the functions ordered by the customer in accordance with the offer and is limited to these. If the customer exceeds the aforementioned content restrictions of the SaaS licence in such a way that the customer uses functions within the framework of the SaaS services that the customer has not agreed with SIDES as the subject matter of the contract, SIDES is entitled to invoice the remuneration due for this use exceeding the SaaS licence in accordance with the SIDES price list for the duration of the use retroactively and in future for the duration of the concluded licence agreement. SIDES will inform the customer of such additional remuneration and include it in the invoice.

6.3. Excluded from the granting of rights within the framework of the SaaS licence are components of the SaaS services that are recognisably subject to the rights of third parties for the customer and in particular open source licences, i.e. licences that do not provide for any restriction of the licensees or areas of use, that are royalty-free and for which the relevant source code is accessible. In particular, components that are disclosed by SIDES within the SaaS services or in supplied text files as third-party content are considered recognisable.

6.4. The source code of the software of the SaaS services is not the subject of this licence and disclosure is not owed, unless otherwise stipulated by applicable open source licences. Notwithstanding mandatory statutory claims and rights, the customer is not permitted to reproduce or sell the software of the SaaS services or parts thereof. Section 69d (2) and (3) and Section 69e UrhG remain unaffected by this.

6.5. Supplementary services: If the customer orders supplementary services in accordance with clause 2.1, in which a copyright or other intellectual property rights can be established, such as graphic designs, technical developments or other copyrightable deliveries, which are detailed in a corresponding offer (hereinafter “delivery”), SIDES grants the customer a permanent, worldwide, transferable, sub-licensable, non-exclusive right of use for commercial purposes to this delivery under the condition precedent of full payment of the respective remuneration owed in accordance with clause 6 for such services. Priority licence or payment terms may apply in accordance with the respective offer. Notwithstanding mandatory statutory claims and rights, the customer is not permitted to reproduce or sell the software of the Supplementary Services or parts thereof, insofar as software is concerned. Section 69d (2) and (3) and Section 69e UrhG remain unaffected by this.

6.6. The customer grants SIDES a non-exclusive, temporally and geographically unrestricted licence to all content that he transfers to the SIDES servers as part of the use of the SaaS services, to use this content insofar as this is necessary to fulfil the contract with the customer, in particular to store and reproduce the content and to make it accessible to third parties according to the customer’s settings. SIDES is entitled to grant sub-licences to subcontractors. Furthermore, the licence is not transferable. SIDES is authorised to store the customer’s POS data beyond the duration of the contract, insofar as this is technically or legally necessary. The customer shall ensure that this POS data is free of personal data of his customers. In particular, SIDES is authorised to create backup copies of the content provided by the customer and to temporarily or permanently store such information as is required for billing, documentation and invoicing purposes. If the customer provides feedback or suggestions for improvement regarding our services, we are authorised to use this for our purposes without restriction. In this case, SIDES is not obliged to pay any financial compensation to the customer. Any claims of such a customer for naming or other claims of the customer in connection with the feedback given or the suggestion for improvement are excluded. 

7 Remuneration and terms of payment

7.1 The remuneration agreed in the offer and any ancillary costs stated in the offer are always net prices and do not include statutory taxes and duties.

7.2 The remuneration is invoiced by SIDES in accordance with the following provisions. The invoice amounts to be paid by the customer to SIDES are to be transferred to the account specified in the invoice. The respective invoice amount must be credited to this account at the latest on the tenth day after receipt of an invoice. In the case of a direct debit authorisation issued by the customer, SIDES will not debit the invoice amount from the agreed account before the seventh day after receipt of the invoice.

7.3 The monthly fees are payable pro rata for the remainder of the month, starting on the day on which the services are ready for operation. Thereafter, these fees shall be paid monthly in advance. If the fee is to be calculated for parts of a calendar month, it shall be calculated pro rata for each day. The full monthly fee will also be charged accordingly if the customer cancels the contractual relationship within the cancellation period; this does not apply if SIDES is responsible for the customer’s cancellation for good cause.

7.4 Remuneration for additional services is due after the respective service has been provided by SIDES and is to be paid by the client without deduction in accordance with the invoice.

7.5 The customer shall only have a right of set-off if his counterclaim has been recognised by declaratory judgement 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.

7.6 All payments shall be made in cleared funds, without deduction or set-off (subject to Clause 6.6) and free and clear of and without deduction for any taxes, duties, levies, duties, fees, charges and withholdings of any kind now or hereafter imposed by any government, tax or other authority except as required by law. If a party is required to make such a deduction, it shall pay to the receiving party such additional amounts as are necessary to ensure that the receiving party receives the full amount that it would have received had the deduction not been made.

SIDES offers its SaaS services as individual components and as software packages, in which several components of SaaS services are combined. Insofar as the customer uses packages (whose individual components are shown in the offer or the invoices), the customer cannot cancel or change the individual components individually before the end of the contract term.

Insofar as SIDES agrees to a change during the contract term at the customer’s request, the individual prices of the remaining licensed individual components of the SaaS services stated in the price list apply in this case and not a pro rata or partial package price.

8 Default

8.1 In the event of a significant delay in payment, SIDES is authorised to suspend the services if the significant delay in payment persists two weeks after receipt of a reminder (text form is sufficient) by SIDES. In this case, however, the customer remains obliged to pay the monthly fee.

8.2 If the customer is significantly in arrears for more than two months, SIDES can terminate the contractual relationship for good cause. Claims for damages from the breached contractual relationship remain unaffected by this cancellation.

8.3 SIDES reserves the right to assert further claims due to default of payment.

8.4 For each unpaid invoice, the customer must reimburse SIDES for the costs incurred by SIDES in connection with an additional request for payment (reminder).

9 Liability

9.1 SIDES is liable for services provided free of charge in accordance with the applicable statutory provisions.

9.2 Otherwise, SIDES is liable without limitation for intent and gross negligence as well as for damages resulting from injury to life, limb or health.

9.3 In cases of simple negligence, SIDES is liable for the breach of an essential contractual obligation (cardinal obligations under German law). An essential contractual obligation within the meaning of this clause is an obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer may therefore regularly rely.

9.4 In the case of section 8.3, SIDES is not liable for lack of commercial success, loss of profit and indirect damages.

9.5 Liability in accordance with the above clause 8.3 is limited to the typical damage foreseeable at the time of conclusion of the contract.

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

9.7 The limitations of liability apply accordingly in favour of the managing directors, employees, representatives and vicarious agents of SIDES.

9.8 Any liability of SIDES for guarantees given (which must be expressly labelled as such) and for claims arising from the Product Liability Act or data protection law remains unaffected.

Any further liability of SIDES is excluded.

10 Registration and use of domains

10.1 Insofar as the registration of domains by SIDES for the customer is the subject of the service to be provided within the framework of the provision of supplementary services in accordance with section 2.1, the specific scope of services is set out in the offer. The customer acknowledges that in the case of domain registration by SIDES for the various top-level domains administered by national organisations (registrars), the conditions for the registration and administration of the top-level domains of the respective organisation apply. If top-level domains are the subject of the contract, the general terms and conditions of the registrars apply accordingly.

10.2 SIDES always registers domains in the name and on behalf of the customer as domain holder. The customer is obliged to bear the costs arising from the registration and operation of the respective domain or to reimburse SIDES according to the respective offer.

11 Availability and warranty 

11.1 SIDES provides a warranty for free services in accordance with the applicable statutory provisions.

11.2 SIDES owes an annual average availability of 98% for SaaS services. Excluded from the aforementioned availability are times in which the server is unavailable due to technical or other problems that are beyond the control of SIDES or its subcontractors (force majeure, fault of third parties, etc.). The unavailability of the SaaS services for these reasons does not constitute a reason for a reduction in performance or remuneration on the part of the customer. Downtime for technical reasons, e.g. for the installation of updates as part of regular maintenance or the expansion of SaaS services, shall only be carried out after prior agreement with the customer and, as a rule, on a scheduled basis and to a reasonable extent outside the customer’s normal business hours. Such downtimes due to scheduled maintenance work do not constitute grounds for a reduction in performance or remuneration on the part of the customer and are excluded from the availability owed. Strict liability pursuant to Section 536a (1) BGB for defects that already existed when the contract was concluded is excluded with regard to SaaS services.

11.3 In all other respects, SIDES provides a warranty for defects in the provision of services exclusively in accordance with the following provisions.

11.4 Defects are significant deviations from the contractually agreed functional scope of the services. The customer shall notify SIDES immediately in writing (by e-mail, support board or Asana) of defects in the services or other errors and document the circumstances of the occurrence as best as possible. In addition, the customer will support SIDES free of charge and in an appropriate manner in the elimination of defects and in particular provide SIDES with all information and documents that SIDES requires to analyse and eliminate defects. SIDES will rectify 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 can reduce the agreed remuneration appropriately. The right to reduce the remuneration is limited to the amount of the monthly fixed price for the defective part of the service.

11.5 If SIDES does not succeed in remedying a defect within a reasonable period to be set by the customer, which allows at least 3 attempts at rectification, the customer can terminate the contract for good cause. SIDES is authorised to rectify a defect by means of a workaround solution if the cause of the defect itself can only be rectified with disproportionate effort and the usability of the services is not significantly impaired.

12 Claims in relation to third parties

12.1 The customer guarantees that he will observe all applicable legal provisions, in particular copyright and data protection law, when using the services. The customer indemnifies SIDES from all claims of third parties that are asserted against SIDES due to the use of the services by the customer. SIDES will immediately inform the customer about the claims asserted by third parties and, upon request, provide the information and documents necessary for the defence. Furthermore, SIDES will either leave the defence to the customer himself or undertake it in consultation with the customer. In particular, SIDES will neither recognise nor dispute third-party claims without consulting the customer. The provisions of this clause apply accordingly to contractual penalties as well as penalties and fines imposed by the courts or authorities, insofar as the customer is responsible for these.

12.2 Upon request, the customer is obliged to provide SIDES with all information necessary for the assertion of claims against third parties, in particular to provide their names and addresses and to inform SIDES immediately about the nature and extent of claims that arise against SIDES from the unauthorized provision of the program.

13 Force majeure

13.1 SIDES is not liable for events of force majeure, which make the contractual performance significantly more difficult for SIDES, temporarily impossible or make the proper fulfilment of the contract impossible. Force majeure includes all circumstances independent of the will and influence of the parties, such as natural disasters, government measures, official decisions, blockades, war and other military conflicts, mobilisation, civil unrest, terrorist attacks, strikes, lockouts, pandemics and other labour unrest, confiscation, embargo or other circumstances that are unforeseeable, serious and beyond the control of the parties and occur after the conclusion of this contract.

13.2 If one of the parties is prevented from fulfilling its obligations under the contract due to force majeure, this shall not be deemed a breach of contract and the deadlines stipulated in the contract or within the framework of the contract shall be extended appropriately in proportion to the duration of the force majeure. The same applies if SIDES is dependent on the advance performance of third parties and this is delayed due to force majeure.

13.3 Each party shall do everything in its power to mitigate the consequences of 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.

14 Changes to the General Terms and Conditions, service descriptions and prices 

14.1 These General Terms and Conditions may be amended between the customer and SIDES by agreement as described below: SIDES will transmit the amended general terms and conditions in text form prior to the planned entry into force (effective transmission is also communication by email to the email address provided by the customer in the contractual relationship) and separately point out the new regulations and the date of the planned entry into force. At the same time, SIDES will set the customer a reasonable deadline of at least one month (1 month) to declare whether he accepts the changes for the further use of the services. If no declaration is made within this period, which commences upon receipt of the notification in text form, the amended General Terms and Conditions shall be deemed to have been agreed. SIDES will inform the customer of his legal remedies, i.e. the right of objection, the objection period and the significance of tacit consent, separately at the beginning of the period.

14.2 Changes with regard to essential contractual obligations are only permitted if they are necessary because the services provided by SIDES without changing the essential contractual obligations are necessary for reasons of IT security or due to a changed legal situation.

15 Contract term and cancellation  

15.1  The contract begins on the date specified in the offer.  

15.2 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 one party cancels in writing three months before expiry of the term. If the customer is granted free months at the beginning of the licence agreement, the term of the agreement shall be these granted free months plus the paid 24 months.

If the customer purchases additional components (in particular and e.g. SIDES Pay solutions, additional software components etc.) during a term of 24 months or subsequently of 12 months, the contract terms of the customer’s first contract apply to these functions and components, unless separate contract terms, e.g. for SIDES Pay and associated hardware components, are specified in a separate contract.

15.3 The right to cancellation for good cause remains unaffected by this. An important reason for SIDES exists in particular if the customer significantly violates the obligations incumbent upon him according to the contract.

15.4 Upon termination of the contract, any contractual relationships for additional services shall also end.

15.5 The cancellation of individual modules for certain services under the contract has no influence on the term of the contract and the remaining modules purchased by the customer. A cancellation of individual modules always requires the express consent of SIDES to be effective (text form is sufficient) and such a cancellation of individual modules may increase the unit price or the availability of remaining modules. In this case, SIDES will inform the customer wishing to cancel of such possible changes in good time beforehand.

15.6 Upon termination of the contract, access to the services is terminated. The customer’s entire database, which is stored on the servers of the SIDES services, must be downloaded by the customer to the customer’s local system in good time before the termination date. SIDES will delete the data and access data at the end of the contract. In order to fulfil the customer’s statutory retention obligations or other requests for data retention, the customer can conclude a contract with SIDES for the continued storage of the data, which will incur additional costs. In this case, separate SIDES hosting terms and conditions apply.

16 Final provisions

16.1 SIDES is authorised to provide the services through third parties as subcontractors.

16.2 The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Berlin, provided that the parties are merchants or the customer has no general place of jurisdiction in Germany or in another EU member state or has moved his place of residence abroad after these terms and conditions come into effect or his place of residence or habitual abode is not known at the time the action is filed.

16.3 The customer can only transfer the rights and obligations from this contract to a third party with the prior written consent (e-mail is sufficient) of SIDES.

16.4 The contract shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).