Section 1 – Scope of Application, Subject Matter and Definitions
(1) These General Terms and Conditions (hereinafter “GTC”) govern the contractual relationship between BarBrain GmbH, Lindwurmstraße 25, 80337 Munich, registered in the commercial register of the Local Court of Munich (hereinafter “Provider”), and the customer (hereinafter “Customer”) with respect to the use of the software “BarBrain” (hereinafter “Software”).
(2) The Software enables the Customer to digitise its inventory and to conduct digital stocktakes in hospitality and hotel businesses. The Software is provided as Software-as-a-Service (“SaaS”) via the internet.
(3) Use of the Software is exclusively available to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities governed by public law, and special funds under public law. Consumers within the meaning of Section 13 BGB are excluded from use. By registering, the Customer confirms that it is not acting as a consumer.
(4) These GTC shall apply exclusively. Any terms and conditions of the Customer that conflict with or deviate from these GTC shall not be recognised by the Provider unless the Provider has expressly agreed to their applicability in writing. Section 312i(1) sentence 1 nos. 1–3 BGB shall not apply.
(5) Individual agreements between the Provider and the Customer (including separate SaaS agreements for Enterprise customers) shall take precedence over these GTC in the individual case. The content of such agreements shall be determined by a written contract or the Provider’s written confirmation.
Section 2 – Registration and Formation of Contract
(1) Use of the Software requires prior registration. During registration, the Customer shall provide the data requested in the input form truthfully and completely. Data is collected in accordance with the principle of data minimisation. Further details are set out in the Provider’s privacy policy.
(2) Registration is exclusively available to legal entities as well as natural persons with full legal capacity who are acting in the exercise of their commercial or self-employed professional activity. It is possible to register multiple establishments under one legal entity. There is no entitlement to registration.
(3) The formation of the contract and the specific details regarding the commencement of the contract are governed by Section 3.
(4) Upon registration, the Customer receives a personal account with an email address and password (login credentials). The login credentials must be kept confidential and must not be disclosed to third parties outside the Customer’s group of companies. The Customer shall be liable for all activities carried out through its account unless the Customer proves that the unauthorised use was not attributable to it.
(5) In the event of obviously fictitious information or a violation of Section 1(3), the Provider reserves the right to reject the registration or to suspend or delete the account.
Section 3 – Commencement of Contract, Free-of-Charge Periods
(1) Upon completion of the registration, a contract for the use of the selected services is concluded between the Customer and the Provider. The Customer selects a package pursuant to Section 4 and deposits a payment method pursuant to Section 6.
(2) The use of the services is generally subject to a fee. If a free-of-charge period (e.g. trial period or discounted period) is granted to the Customer in an individual case, its duration shall be determined by the individual agreement at the time of conclusion of the contract.
(3) A free-of-charge period commences upon activation of access, unless otherwise agreed. During this period, the features of the selected package shall apply; the Provider may restrict the range of functions.
(4) If a free-of-charge period is granted and the Customer does not terminate in due time in accordance with Section 8, the contractual relationship shall automatically convert into a paid subscription upon expiry. From this point, remuneration shall become due in accordance with Section 5 and shall be collected via the deposited payment method.
(5) The Provider shall inform the Customer in good time before the expiry of a free-of-charge period about the upcoming transition to a paid subscription.
(6) If the Customer terminates during a free-of-charge period in accordance with Section 8, the contract shall end upon expiry of that period without any costs being incurred.
Section 4 – Description of Services and Packages
(1) The Provider makes the Software available to the Customer as a SaaS solution via the internet. Access is provided via a web-based interface and/or mobile applications. The Software enables, in particular, the digitisation of inventory, the conduct of digital stocktakes, and the management of products and stock levels.
(2) The Customer may choose between the following packages:
(3) The specific scope of services of the respective package is determined by the above overview and, additionally, by the current description of services on the Provider’s website (https://www.barbrain.com/). In the event of a conflict between the description of services on the website and these GTC, these GTC shall prevail.
(4) An upgrade to a higher-tier package is possible at any time. The price difference shall be calculated on a pro rata temporis basis. A downgrade is possible at the end of the respective billing period.
(5) A product within the meaning of these GTC is each individual item (e.g. a bottle, an ingredient), regardless of the number of areas (e.g. storage, shelf, cocktail station) in which that item is maintained.
(6) To the extent the Provider makes an application programming interface (API) available, the following provisions shall apply in addition: The Customer may only use the API within the scope of the contractually agreed purposes and the specifications documented by the Provider. The Provider may impose quantitative restrictions on the use of the API (e.g. requests per unit of time) and may modify or discontinue the interface. The Provider shall announce material changes to the API that may affect existing integrations of the Customer with a lead time of at least three (3) months. The Customer shall treat API access credentials as confidential and shall not disclose access to third parties.
Section 5 – Remuneration
(1) Remuneration is determined by the package selected by the Customer and the selected billing period (monthly or annually). All prices are exclusive of the applicable statutory value added tax.
Table: Monthly net prices per establishment. The annually listed price refers to the monthly price under a 12-month contractual commitment.
(2) In the case of a monthly contract term, remuneration shall be due monthly in advance. In the case of an annual contract term, remuneration for 12 months shall be due in advance. Invoices shall be made available to the Customer electronically via the web-based interface.
(3) Remuneration shall be calculated per establishment/branch registered as a user in the Customer’s system. If the number of registered establishments increases during a current billing period, the remuneration shall be adjusted on a pro rata temporis basis.
(4) If the Customer is in default of payment, the Provider shall be entitled to suspend access to the Software in whole or in part until the outstanding balance has been settled in full. The right to assert further claims shall remain unaffected.
(5) Default interest shall be charged at a rate of 9 percentage points above the respective base interest rate pursuant to Section 288(2) BGB.
Section 6 – Payment Terms
(1) Unless otherwise individually agreed, payment processing is handled by the payment service provider Stripe Payments Europe, Ltd., Dublin, Ireland (hereinafter “Stripe”). The terms of use of Stripe (https://stripe.com/legal) shall apply in addition. The Provider shall in any event remain the contact for all questions relating to billing and the contract.
(2) Within the scope of payment processing via Stripe, the following payment methods are available to the Customer:
- SEPA Direct Debit: Upon granting a SEPA mandate, the collection shall be carried out by Stripe. The account shall be debited upon the due date. The advance notification period (pre-notification) is shortened to 3 days.
- Credit Card: If credit card payment is selected, the due amount shall be collected immediately from the deposited credit card.
(3) Under individual agreements (in particular for Enterprise customers or separate SaaS contracts), remuneration may also be paid by invoice. In this case, the invoice shall be due for payment within 14 days of the invoice date without deduction, unless otherwise agreed. The Provider shall issue invoices electronically by email.
Section 7 – Price Adjustments
(1) The Provider shall be entitled to adjust the prices pursuant to Section 5 with a notice period of at least six (6) weeks to the end of a billing period, provided that such adjustment is objectively justified by one of the following reasons:
- a) increased general costs (in particular inflation, wages, energy costs);
- b) changes in the Provider’s cost structure (in particular hosting, licence or infrastructure costs);
- c) material further development of the Software with an increased range of functions.
The notice shall be given in text form (email or notification in the dashboard).
(2) The Customer shall have the right to object to the price adjustment in text form within four (4) weeks of receipt of the notice. If the Customer objects in due time, the contract shall end at the time the price adjustment takes effect. If the Customer does not object in due time, the new prices shall be deemed agreed from the announced date.
(3) The Provider shall expressly inform the Customer in the notice of its right to object, the relevant time limit and the legal consequences of failure to object.
Section 8 – Term and Termination
(1) The contract shall run for an indefinite period, irrespective of the selected contract term.
(2) In the case of a monthly contract term, the contract shall automatically renew for a further month unless it is terminated no later than the last day before the start of the next renewal period.
(3) In the case of an annual contract term, the Customer commits to a minimum contract period of twelve (12) months from the commencement of the contract or from the commencement of the paid period. The minimum contract period shall automatically renew for a further twelve (12) months unless the contract is terminated by the last day before the start of the next renewal period. Ordinary termination during a current 12-month period is excluded.
(4) In the event of termination of a contract with an annual contract term, no pro rata refund of remuneration already paid for the remaining period shall be made.
(5) The right to extraordinary termination for good cause shall remain unaffected. Good cause for the Provider shall exist in particular if:
- a) the Customer is in default of the agreed remuneration for more than four (4) weeks despite a reminder and the setting of a grace period;
- b) the Customer repeatedly or seriously breaches these GTC;
- c) the Customer uses the Software in an abusive manner or enables third parties to use it.
(6) Termination may be declared in text form (e.g. email) or via the termination function provided by the Provider in the customer profile. The mere deletion of the account without prior termination shall not constitute a termination.
(7) Upon termination of the paid contract, the Customer’s account shall be converted into a free account with a reduced range of functions. The data entered by the Customer shall be retained in the free account for as long as the account exists.
(8) If the Customer deletes its account, all data associated with the account shall, as a rule, be irrevocably deleted within 30 days of deletion. Upon request, this period may be reasonably extended to allow the Customer to export its data. The Provider shall make an export function in common machine-readable formats (in particular CSV) available for this purpose. Statutory retention obligations of the Provider shall remain unaffected.
Section 9 – Software Development and Updates
(1) The Provider shall be entitled to further develop the Software at any time, in particular to add, modify or remove functions, provided that this is reasonable for the Customer taking into account the interests of the Provider and the contractually owed scope of services is essentially maintained.
(2) The Customer shall have no claim to the permanent maintenance of a specific range of functions, to permanent technical progress, or to adaptation to the latest technical standards, unless expressly agreed otherwise.
(3) Technically necessary updates shall be installed by the Provider following prior notification of the Customer. The Customer hereby agrees that technically necessary updates may be applied automatically.
Section 10 – Availability and Support
(1) The Provider shall ensure an availability of the Software of at least 99.0% as an annual average, measured against the total time of a calendar month less scheduled maintenance windows (“Availability SLA”). Scheduled maintenance shall, where possible, be carried out during night hours (03:00–08:00 CET/CEST) and shall be announced with at least 48 hours’ notice.
(2) The following shall not constitute unavailability: scheduled maintenance windows pursuant to paragraph 1, restrictions due to force majeure pursuant to Section 20, disruptions caused by the Customer (e.g. failure of the internal network), and disruptions attributable to third-party providers (e.g. app store availability).
(3) Under individual agreements (in particular for Enterprise customers), a higher level of availability may be agreed, including separate response times, escalation processes and credits in the event of failure to meet the agreed availability (service credits).
(4) The Provider shall provide free support by email and/or telephone. Support services shall be rendered on business days (Monday to Friday, excluding public holidays in Bavaria) between 09:00 and 17:00 CET/CEST.
Section 11 – Customer Obligations
(1) The Customer shall use the Software exclusively in accordance with the contractual terms and in compliance with applicable law.
(2) The Customer shall carefully safeguard its login credentials and protect them against unauthorised access. The Customer shall inform the Provider without undue delay if there are indications of misuse of its account.
(3) The Customer shall be responsible for compliance with these GTC by its users (in particular team members and employees at branches). Violations of these GTC by users shall be attributed to the Customer.
(4) The Customer shall regularly and independently back up the data stored in its account. The Provider shall not be liable for data losses attributable to the Customer’s failure to back up data.
(5) In the event of disruptions, the Customer shall inform the Provider without undue delay by email and describe the disruption as precisely as possible.
Section 12 – Rights of Use and Intellectual Property
(1) The Provider grants the Customer, for the duration of the contractual relationship, a simple (non-exclusive), non-transferable, non-sublicensable right to use the Software via the internet (access by web browser and/or mobile application) within the scope of the contractual terms. The right of use – to the extent included in the selected package – also encompasses the use of the application programming interfaces (APIs) provided by the Provider. The right of use shall automatically terminate upon termination of the contract.
(2) All rights in and to the Software, including all copyrights, trademark rights, patents and other industrial property rights, shall remain with the Provider. No rights beyond the right of use set out in paragraph 1 are granted to the Customer.
(3) The Customer shall not copy, decompile, disassemble, reverse-engineer, modify, adapt, redistribute, rent, lend or otherwise make the Software available to third parties in whole or in part. Sections 69d and 69e of the German Copyright Act (UrhG) shall remain unaffected.
(4) To the extent the Customer submits ideas, suggestions or other feedback on the platform, the Customer grants the Provider a free-of-charge, temporally and spatially unrestricted, simple (non-exclusive) right of use in respect of such content, entitling the Provider to use such content for the development, improvement and marketing of its products.
Section 13 – Data Use and Reference Customers
(1) The Provider shall be entitled to use the data generated through the use of the Software in aggregated and anonymised form for statistical purposes, product improvement and market analyses (e.g. average purchase prices, industry comparisons, inventory trends). Any inference as to the individual Customer or its business operations shall be excluded.
(2) The Customer permits the Provider to use the Customer’s company name and logo for advertising purposes, in particular on the Provider’s website, in presentations and in marketing materials. The Customer may revoke this permission at any time in text form with effect for the future. The Provider shall cease such use within 14 days of receipt of the revocation.
Section 14 – Data Protection and Data Processing
(1) The processing of personal data by the Provider shall be carried out in accordance with the General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG). Further details are set out in the Provider’s privacy policy.
(2) To the extent the Provider processes personal data on behalf of the Customer in the course of performing the contract, the parties shall conclude a separate data processing agreement in accordance with Article 28 GDPR (hereinafter “DPA”). The DPA is attached as Annex 1 and forms an integral part of these GTC.
(3) The Customer shall remain the controller within the meaning of the GDPR with respect to the personal data entered into the Software by it or its users.
Section 15 – Liability
(1) The Provider shall be liable without limitation:
- a) in cases of intent and gross negligence;
- b) for damages arising from injury to life, body or health;
- c) under the provisions of the German Product Liability Act (Produkthaftungsgesetz);
- d) to the extent of a guarantee assumed by the Provider.
(2) In the event of a breach of material contractual obligations (cardinal obligations) due to slight negligence, the Provider’s liability shall be limited in amount to the foreseeable, contract-typical damage at the time of conclusion of the contract. Material contractual obligations are those obligations the fulfilment of which is essential for the proper performance of the contract and on the observance of which the Customer may regularly rely.
(3) Without prejudice to paragraphs 1 and 2, the Provider’s total liability for all claims for damages by the Customer arising out of or in connection with this contract – irrespective of the legal basis – shall be limited to the amount of the net remuneration actually paid by the Customer in the six (6) months preceding the event giving rise to the damage (liability cap). This limitation shall not apply in the cases referred to in paragraph 1.
(4) The Provider’s liability for indirect damages and consequential damages, in particular loss of profit, business interruption, data loss (to the extent not covered by Section 19) or loss of savings, is excluded, except in the cases referred to in paragraph 1.
(5) Liability of the Provider for slight negligence is otherwise excluded.
(6) The limitations of liability in the foregoing paragraphs shall also apply in favour of the Provider’s statutory representatives and vicarious agents.
(7) The foregoing provisions shall not entail a reversal of the burden of proof to the detriment of the Customer.
Section 16 – Warranty
(1) The Provider renders its services in accordance with the current state of the art. It warrants that the Software essentially corresponds to the functions described in Section 4. There shall be no entitlement to permanent freedom from defects or to adaptation to the latest technical standards.
(2) Wording in these GTC, in the description of services or in the Provider’s marketing materials does not constitute a guarantee within the legal meaning (Section 443 BGB) unless a guarantee is expressly declared as such in text form.
(3) Claims for defects by the Customer require that the Customer reports the defect without undue delay after discovery, providing an accurate description of the symptoms in text form. Before asserting further rights, the Customer shall grant the Provider adequate opportunity to remedy the defect (as a rule, two attempts).
(4) Claims pursuant to Section 536a BGB, in particular strict liability guarantees and the right of self-remedy, are excluded to the extent permitted by law.
(5) The Provider does not warrant that the Software is free from viruses. The Customer shall employ appropriate security measures and virus scanners.
Section 17 – Confidentiality
(1) The parties undertake to keep permanently confidential all confidential information about the other party that has become known in connection with the contract, not to disclose it to third parties and to use it only for the performance of this contract.
(2) Information that was already known to the receiving party prior to disclosure, that is or becomes publicly known (through no fault of the receiving party), or that was disclosed to the receiving party by a third party who was authorised to do so without any obligation of confidentiality, shall not constitute confidential information within the meaning of paragraph 1.
(3) The obligation of confidentiality shall survive the termination of the contract.
Section 18 – Subcontractors and Hosting
(1) The Provider shall be entitled to engage subcontractors for the performance of its contractual services, in particular hosting and infrastructure providers (e.g. cloud hosting providers), payment service providers and other technical service providers. The Provider shall remain responsible vis-à-vis the Customer for the proper performance of services.
(2) The Software is hosted on servers within the European Union or the European Economic Area. To the extent personal data is transferred to third countries in the course of service provision, the Provider shall ensure an adequate level of data protection in accordance with the requirements of the GDPR (e.g. through standard contractual clauses or an adequacy decision).
(3) To the extent subcontractors act as processors within the meaning of Article 28 GDPR, they are listed in the DPA (Annex 1) as sub-processors.
Section 19 – Security Measures
(1) The Provider shall implement appropriate technical and organisational measures (TOMs) to protect the Customer’s data against unauthorised access, loss, destruction or alteration. The TOMs are based on the current state of the art and are regularly reviewed and adapted as necessary.
(2) These measures include, in particular:
- a) encryption of data in transit by means of TLS (at least version 1.2) and encryption of stored data (encryption at rest);
- b) role-based access controls, individual authentication and logging of access to customer data;
- c) regular automated data backups, at least daily, with a retention period of at least 14 days;
- d) monitoring and logging of security-relevant events;
- e) documented processes for the detection, reporting and handling of security incidents (incident response).
(3) The specific TOMs are described in further detail in the DPA (Annex 1).
Section 20 – Force Majeure
(1) Neither party shall be liable for the non-performance or delayed performance of its contractual obligations to the extent that such non-performance or delay is attributable to circumstances of force majeure. Force majeure includes, in particular, natural disasters, epidemics/pandemics, war, terrorism, strikes, lockouts, official orders, failure of telecommunications networks or energy supply, and cyber-attacks that could not be averted despite appropriate protective measures.
(2) The affected party shall inform the other party without undue delay of the occurrence and the expected duration of the event and shall make reasonable efforts to minimise the effects.
(3) If the force majeure event lasts for more than three (3) months, either party shall be entitled to terminate the contract with two (2) weeks’ notice in text form.
Section 21 – Amendments to these GTC
(1) The Provider shall be entitled to amend these GTC with effect for the future, provided that such amendment is required for objectively justified reasons (e.g. changes in the legal framework, case law of the highest courts, technical developments, closure of regulatory gaps) and the Customer is not unreasonably disadvantaged by the amendment.
(2) The Provider shall inform the Customer of the amendments in text form at least six (6) weeks before they take effect and shall set out the amendments in detail.
(3) The Customer may object to the amendments in text form within four (4) weeks of receipt of the notification. If the Customer objects in due time, the Provider shall have the right to terminate the contract with effect from the date on which the amendments take effect by way of ordinary termination. If the Customer does not object in due time, the amended GTC shall be deemed approved.
(4) The Provider shall expressly inform the Customer in the notification of its right to object, the relevant time limit and the legal consequences of failure to object.
Section 22 – Final Provisions
(1) The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws rules.
(2) The exclusive place of jurisdiction for all disputes arising out of or in connection with the contractual relationship shall be Munich.
(3) Should individual provisions of these GTC be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected. In place of the invalid provision, the valid provision that most closely approximates the economic purpose of the invalid provision shall be deemed agreed.
(4) Supplements and amendments to this contract shall require text form. This shall also apply to the waiver of this formal requirement.
(5) Rights and obligations under the contract may only be transferred by the Customer to third parties with the prior written consent of the Provider. The Provider shall be entitled to transfer rights and obligations under the contract to affiliated companies within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG).
– Annex 1: Data Processing Agreement (DPA) pursuant to Article 28 GDPR –
[The DPA is to be attached as a separate document.]