Cash System of Shore GmbH and its affiliated companies

Terms of Service for Merchants

 

1. Scope of application

2. Formation of the contract

3. Object of the contract

4. Granting of license

5. Terms of payment, offset and right of retention

6. Contract duration

7. Availability of the Shore Service

8. Warranty

9. Liability

10. Confidentiality

11. Data protection

12. Indemnification obligation of the Merchant

13. Amendments to the Terms of Service

14. Applicable law, place of performance and jurisdiction

15. Special regulations for the purchase of hardware

16. Final Provisions

 

 

1. Scope of application

1.1 - Parties and object of the contract. This Agreement governs the legal relationship between Shore GmbH, Seidlstraße 23, 80335 Munich, Germany, as well as its U.S.-based affiliated company Shore.com Inc., LLC, 312 Arizona Ave., 90401 Santa Monica, California, United States (hereinafter referred jointly to as "Shore") and its customers (hereinafter referred to as "Merchants" or the "Merchant" indistinctively) in relation to the temporary provision of hardware and/or software for the use of cash systems, including additional technical services. Shore provides the customers (Merchants) with a software technology to be used on the Internet (software as a service). Shore's services are reserved to commercial or independent professional activities of the Merchant. Shore does not render its services to the (Merchant's) end-costumers.

1.2 – The present terms shall only apply to commercial transactions with entrepreneurs, public law legal entities or special funds under public law. For the purpose of these terms, an entrepreneur means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.

1.3 – Conflicting or deviating terms and conditions of the Merchant shall not be part of this contract and shall not apply, unless Shore explicitly agreed to their applicability in writing. This shall also apply if Shore performs its services without reservation and having knowledge of the Merchant’s conflicting or deviating terms.

1.4 - End-customer relationship. The Merchant is responsible for structuring the legal relationship between the end-customer and himself and for the corresponding contract conclusion in respect to the provision of the service.

 

2. Formation of the contract

The contract comes into effect when the Merchant signs an order form or after an exchange of offer and statement of acceptance concerning the conclusion of a contract in accordance with these Terms of Service was conducted via e-mail or fax.

 

3. Object of the contract

3.1 – Depending on the individual contractual agreement, the Shore service includes particularly the following services:

a) Provision of software to the Merchant for temporary use in return for payment, especially the Shore Software for the use on determined mobile devices such as tablets and smartphones (hereinafter referred to as "Software", in this sense software lease agreement)

b) Provision of memory space and computer capacity in return for payment to run the Shore software in the Shore datacenter through the Internet or through cloud computing.

3.2 – In so far as the service involves the provision of memory space and computer capacity accessible via Internet or the granting of the software use, the service shall be available on the datacenter, the Shore servers or a datacenter or cloud service commissioned by Shore. There the Shore server- and database-software runs with functionalities for the service provider that are described in a special section dedicated to the service specifications. The datacenter or cloud services are located in Germany or, in any case, in the EU.

3.3 – The data about the Merchant’s business (for example restaurants) that is subject of the service such as service offers of the Merchant is integrated into the software through the designated fields and functionalities by the Merchant himself. Shore is explicitly not responsible for the completeness of this data and the correct presentation of the Merchant’s business. Shore is also not responsible for the timeliness, reliability and exactness of the data.

3.4 – The Merchant’s access to the Internet is not subject to this contractual relationship. Unless agreed otherwise, the Merchant shall have sole responsibility for the operability of his Internet access, including the transmission paths and, if he does not use the hardware provided by Shore, for his own computer or internal network.

3.5 - Shore has the right to amend and adapt the content of the services and the provided software, especially in the event of technological developments. Shore shall inform the Merchant in good time of any amendments. In this event, the Merchant has a special termination right with a two-week’s notice to the date of amendment, provided that the amendments are not reasonable for the Merchant.

 

4. License grant for the Shore Software

4.1 – Unless otherwise agreed, the licensee shall receive a right of beneficial use (simple license) for the software that is subject of this contract. The right of use is limited to the duration of the contract, is non-transferable, non-sublicensable, revocable and confined to the original purpose of the software in the licensee’s business. The use of Shore software or the access to the Shore cloud services is possible only from the one device, on which the software has been installed as stipulated in this contract. Additional installations on other devices are prohibited.

4.2 - Reproductions: The Merchant has the right to reproduce the provided program, as far as such reproduction is required for use of the software. The required reproductions include in particular the installation of the program on the mass storage of the applied hardware and the loading of the program on the working storage.

4.3 – Connection with the system: The Merchant is entitled to use the software on the terminal (serial number), as stipulated in this contract. In the event of defect hardware or a further urgently required change of hardware, the software shall be integrated on a new hardware. The changing of the hardware shall be immediately communicated to Shore in writing. The new system shall be communicated and named including its serial number.

4.4 - Prohibition against resale or sublease: The Merchant shall not be allowed to sell or permit the temporary use (in particular lend or rent) of the software and the corresponding user manual and the further supporting material to third parties. A transfer of the right to use is, however, permitted to third parties who did not receive a separate right to use and who have to submit to the licensee’s will for all that regards the use of the software. Generally, this regards particularly the Merchant’s employees.

4.5 – Prohibition against multiple use: if the licensee changes his hardware, he shall cancel the software from the hardware used before. It shall not save, store or use the software on more than one hardware at a time.

4.6 – Any use not included in this section and this contract shall be prohibited to the Merchant, unless otherwise agreed by Shore.

4.7 – The Merchant shall take appropriate measures to guarantee the compliance with the contractually agreed extent of the license. In particular, the Merchant shall not sell, transfer, sub-license and offer the service or part of it commercially as his own service or product or make it accessible and usable to third parties in any other way.

4.8 - Brands, company symbols, copyright notices, serial numbers or further features that are needed to identify Shore or that are used by Shore shall not be eliminated or altered by the Merchant. The same shall apply if the display of such features on the screen is suppressed.

 

5. Terms of payment, offset and right of retention

5.1 - All of the prices are net prices and exclusive of the statutory applicable value added tax. Unless otherwise agreed in writing, the prices are quoted ex works or ex premises. Costs for packaging, clearing, insurance, transport or further additional expenses are not included. The Merchant shall not receive a separate invoice for monthly recurring rental. [Pursuant to section 15 of the German VAT Law (UStG), the signed order form (the contract) is recognized by the tax office, since it contains all of the elements of an invoice required by law pursuant to section 14 of the German VAT Law (UStG).]

5.2 - The payment of the invoiced amounts shall be paid in Europe – unless otherwise agreed – via SEPA Direct Debit. The Merchant agrees to grant a corresponding Shore SEPA direct debit mandate. In the United States the payment of the invoiced amounts shall be paid – unless otherwise agreed – by means of Shore's external payment provider, being automatically deducted from the selected payment method (credit card). The collection is carried out after invoicing; in the case of annual payment at the beginning of each contractual year.

5.3 – In general, claims from Shore to the contractual remuneration can only be offset against undisputed or legally established counterclaims. The Merchant shall only be authorized to exercise his right of retention if his counterclaims are based on the same legal relationship. In the event of defects, the Merchant shall only have a right of retention if the retained amount does not exceed the defect-related depreciation of the respective service or the expected costs of rectification and removal of defects. For minor breaches of contract – especially for minor defects – the Merchant shall not have the right of withdrawal.

5.4 – In the event of non-payment Shore is entitled to temporarily suspend its service, until the payment has been made. The ongoing compensation claim shall not be affected. The reactivation shall be performed immediately after payment of the arrears.

 

6. Contract Duration

6.1 – This agreement begins with the bilateral signing of the order form and has, unless otherwise agreed, an initial duration of 12 months, which will subsequently be extended for further periods of 12 months (extension period), unless it is not terminated by Shore or the Merchant within the deadline of one month before the end of the initial or an extended term.

6.2 – The right of termination for cause shall not be affected. Good cause shall exist in particular, if, in view of all the circumstances of the case and of the interests of both parties, the continuation of the contractual relationship until the end of the agreed contract duration cannot be reasonably expected from Shore. In particular, Shore shall be entitled to terminate the contract for cause, if:

a) the Merchant is or becomes insolvent or heavily indebted, if the opening of insolvency proceeding was requested against him and was not dismissed as unfounded or the insolvency proceeding is dismissed due to lack of assets,

b) if the Merchant grossly violates the contractual obligations and these violations are not terminated within a reasonable time after a written request by Shore.

A written notification or deadline can be waived, as far as the continuation of the contractual relationship cannot be reasonably expected due to the seriousness of the breach of obligations, if a success cannot be expected or the weighing of the interests of both parties justifies an immediate termination.

6.3 - Terminations can be made in writing, by fax or email. Terminations on behalf of the Merchant shall be sent by e-mail to cancel@shore.com

 

7. Availability of the Shore Service

Shore makes the access to its service available to the Merchant with an availability according to the list of service specifications (service levels).

a) Transfer point. Shore delivers its services at the connection point of the datacenter used by Shore to the Internet. The Merchant is responsible for the Internet connection between the datacenter and himself.

b) Achieved availability. When determining the actual occurrence of availability, failures due to force majeure will be disregarded (for instance strikes, riots, natural disasters, epidemics). Also not to be taken into account are system stoppages by Shore, which the company deemed necessary for safety purposes provided that Shore had taken adequate precautionary security measures (for example denial of service attack, severe vulnerability in a used third-party software without available patch).

 

8. Warranty

8.1 – The Merchant shall immediately inform Shore about occurring defects, interferences or damages of the rental object that were supplied for use.

8.2 – Defects of the supplied software and the respective user manuals and of further components shall be removed by Shore after having been informed about the defect by the Merchant within a reasonable time. The corrective action is performed at Shore’s option through costless subsequent improvement or replacement.

8.3 – Outages times of the rental object due to improper use or handling by the Merchant or further defects due to a non-conforming use attributable to the Merchant shall not entitle the Merchant to reduce the rental price.

8.4 – The Merchant shall not apply a fee reduction by deduction from the agreed fee. Respective claims on account of unjust enrichment or for compensations shall not be affected.

8.5 – The Merchant’s rights regarding defects shall be excluded, in so far as he made or let make alterations to the rental object without the prior approval of Shore, unless the Merchant can prove that the alterations have no undesirable effects on the analysis and removal of the defect.

The Merchant’s rights regarding defects shall not be affected if the Merchant had the right to make the alterations, [in particular within the limits of his right of remedying the defect himself pursuant to section 536 a subsection (2) of the German Civil Code (BGB)] and if he performed them in a correct manner and documented them in an easily understandable way.

8.6 – The Merchant’s termination right due to deprivation of the use [pursuant to section 543 subsection (2) sentence 1 number 1 of the German Civil Code (BGB)] shall be excluded, unless the subsequent improvement or substitute delivery are to be considered as failed.

8.7 – The strict liability for initial damage of the leasing contract [pursuant to section 536a subsection 1 of the German Civil Code (BGB)] shall be excluded.

 

9. Liability

9.1 – In accordance with applicable legal provisions, Shore shall assume full liability for damages caused to the Merchant that were committed intentionally or with gross negligence by Shore or its agents, and for personal injury and damages in accordance with the German Product Liability Law (Produkthaftungsgesetz).

9.2 – Any other Shore's liability is limited to damage claims in accordance with the following stipulations, unless otherwise provided by a warranty given by Shore:

a) Shore shall only be liable for damages caused with minor negligence due to a fundamental breach of duty (material obligation). Material obligations are contractual obligations that embody the proper execution of this contract and on the compliance of which the Merchant may rely. In so far as Shore is liable for slight negligence, the Shore’s liability is limited to foreseeable and naturally arising damages.

b) Shore’s liability for the loss of data and/or programmes caused by minor negligence is limited to the typical restoration expenses that would have arisen with proper and appropriate data security on behalf of the Merchant.

9.3 – The provisions of the foregoing section shall therefore also apply for the limitation of the reimbursement of futile expenses [pursuant to section 284 of the German Civil Code (BGB)].

9.4 – The foregoing limitations of liability shall also apply to persons employed by Shore acting in the performance of Shore’s obligations.

 

10. Confidentiality

10.1 – The contracting parties – including their agents – shall commit themselves to treat corporate and business secrets of the other party that they attained during the contract negotiation or conclusion confidentially. These obligations shall not apply for information, knowledge and experience that:

a) are, without breach of confidentiality, verifiably of public knowledge,

b) have verifiably been known to the parties prior to the receipt of the information, knowledge and experience,

c) were provided by a third party without confidentiality requirement

d) or have verifiably been acquired independently.

 

11. Privacy

11.1 - Shore values the compliance with the legal requirements on data protection [in particular all relevant provisions of the following German laws: Telemedia Law (TMG), Telecommunication Law (TKG) and Federal Data Protection Law (BDSG)].

11.2 – Shore Software allows the collection of certain personal data about the Merchant or the employees working at Merchant’s business such as e.g. waiters or service staff and, optionally, about the guests. The software enables the anonymized collection on the use and assignment of pseudonyms or staff numbers that exclusively the Merchant has knowledge of. Amongst other things, this data involves:

a) all relevant transactions (such as e.g. of the employees or guests for the accounting or principles of due keeping and conservation of books, writings and documents in electronic form and of data access

b) all data required for the management and optimization of ordering and invoice processes (particularly data for sales vouchers’ administration, possible peripheral devices, etc.)

This data is collected for the purpose of evaluating accounting aspects of the Merchant’s business. Shore shall not create personalized user profiles by itself. Shore has no own access to this personal data and consult the real names of the persons in question.

11.3 – The Merchant shall decide himself, which data he enters into the Shore system. In so far as he enters personal data about himself, he consents to the data processing, storage and transmission within the system. In so far as he enters or makes enter personal data about his employees, he himself shall be responsible for obtaining a possible required consent from the person in question.

11.4 - Persons or businesses with personal data saved in the Shore system have the right of free information, rectification or blocking of their data at any time. Shore uses technical and organizational security measures to protect the data managed by Shore against accidental or intentional manipulations, loss, destruction or access by unauthorised persons.

11.5 – Contact for data protection at Shore: For questions about the collection, processing or usage of your personal data, for information, rectification, blocking or deletion of data and for withdrawal of given consents you can address yourself to our privacy officer at info@shore.com Shore GmbH, Rosenheimer Str. 145e, 81671 Munich, Germany.

11.6 – The data from the Merchant’s system shall be available to him at any time and from any place: On the one hand all ever generated transaction data is always coded and saved on all of the used iPads/iPods. On the other hand, if the Internet connection is given, the data is sent within a few seconds to his personal cloud. There, the Merchant can any time and by means of a click export the transaction data into a format compliant with the relevant tax regulations into an CSV or Excel file and save it locally at home. Within a month after the termination of the contractual relationship, Shore shall automatically send the complete transaction data to the Merchant by e-mail in a format compliant with the tax regulations.

So in the event of any audits of the tax office the Merchant shall have the opportunity to present all of the cash-related data, also after the termination of the contractual relationship with Shore and beyond the statutory duration of 10 years.

 

12. Indemnification obligation of the Merchant

12.1. Duty to indemnify. If third parties (including public bodies) initiate claims against Shore, concerning legal violations based on the assertion that the Merchant failed to fulfill its contractual obligations for example by breaching the data protection law or sent e-mails infringing the competition law or omits to present mandatory information, then the following shall apply. The Merchant shall keep Shore indemnified from these claims without delay; the Merchant shall provide Shore with adequate support for a legal defense, keeping Shore indemnified from all costs connected with such legal defense.

12.2. Prerequisites for the indemnification obligation. A prerequisite for the indemnification obligation under [preceding] clause 12.1. is that Shore informs the Merchant immediately about these claims, emits no acknowledgments and no statements in this direction, and allows the Merchant – if possible – to conduct at its own expense all judicial and extrajudicial negotiations concerning the claims.

 

13. Amendments to the Terms of Service

13.1 – The Merchant shall be informed about amendments to the Terms of Service in writing. The amendments shall be particularly highlighted in comparison to the previously applying conditions.

13.2 – The Merchant shall be allowed to object to such amendments. For this purpose, he shall declare his objections in relation to Shore by sending an e-mail to info@shore.com or by post and within four weeks from the delivery of the notification by Shore about the amendment of the Terms of Service (hereinafter referred to as “Amendments”). The deadline shall only be met if Shore receives the objections before the expiry of the set period. In so far as the Merchant does not object in due form and time, the amendments shall be deemed to be approved and the amended Terms of Service become part of the contract. Shore shall provide explicit information about form and deadline of the objection in the amendment notification.

If the Merchant objects to the amendments in due form and time, the contract shall continue without amendments. Nevertheless, in this case Shore has the right to terminate the contract within four weeks through a written explanation to the Merchant, if a continuation of the contract without amendments is not possible or reasonable for commercial or technical reasons.

 

14. Applicable law, place of performance and jurisdiction

14.1 - This Agreement shall be governed by German law, excluding the UN Sales Convention.

14.2 - Place of performance of the services is Munich, Germany.

14.3 - For all present and future claims arising from or in relation to this contract with sole traders, public law legal entities or special funds under public law, the place of jurisdiction is Munich. The same place of jurisdiction shall apply, if the Merchant has no general place of jurisdiction in Germany or if the place of business or habitual residence was transferred to a country outside Germany or is unknown at the time of bringing the action.

 

15. Special regulation on the acquisition of hardware

15.1 – In so far as Shore sells hardware related to Shore Software to the Merchant and nothing else is agreed, the following general conditions shall apply:

15.2 – Retention of title: The provided goods shall remain property of Shore until the full payment is completed.

15.3 - Warranty for the sold hardware:

a) In so far as Shore shall perform a supplementary performance due to a defect, Shore is free to decide whether the supplementary performance takes place by subsequent improvement or substitute delivery of a faultless good.

b) Duty to examine the delivered good and notice of defect: Shore shall be immediately informed in writing about apparent defects of the sold hardware, at latest 14 calendar days after the delivery of the good, hidden defects shall also be immediately notified in writing no later than 14 calendar days after becoming aware of the defect. If the notice of defect is given out of time, the warranty rights of the Merchant are excluded for the defect that was not communicated on time. Nevertheless, this shall not apply if Shore fraudulently concealed the defect and/or gave a guarantee that covers the defect in question.

c) No warranty shall be given for damages due to improper and inappropriate usage, faulty operation or assembly, natural deterioration, negligent or incorrect use, noncompliance with the maintenance and operating instructions and improper repair work or alterations on behalf of the Merchant or third parties. The burden of proof for all of the conditions for the claim, particularly for the defect as such, the date of detection of the defect and for the timeliness of the notice of defect lies with the Merchant.

d) Warranty claims of the Merchant with regard to the purchased hardware become statute-barred one year after the delivery of the good to the Merchant.

 

16. Final Provisions

16.1 - Contract transfer. Shore is entitled to transfer the contractual relationship with the Merchant to a Shore affiliated company [in accordance with section 15 et seq of the German Stock Corporation Act (Aktiengesetz)]. Shore will announce the Merchant timely about the transfer, at least four weeks in advance, explicitly granting it a special right of termination and thereby the possibility to withdraw from the contract before the effective date of the contractual transfer. In the event of a special termination, Shore will refund the Merchant pro rata any compensations paid in advance.

16.2 - Statements. Unless otherwise provided, announcements and statements under this Agreement require the written form (e.g. e-mail) [pursuant to section 126b of the German Civil Code]. Shore can do this by using the specified Merchant's e-mail address indicated in the order form. The Merchant will promptly notify changes to Shore.

16.3 - Severability. Should individual provisions of this contract be or become invalid, then the validity of the remaining provisions remains unaffected. Instead of the invalid provision, shall be applied what the parties would have reasonably agreed according to the originally intended (economic) purpose. The same applies in the case of a contractual loophole.

 

 

DISCLAIMER. In the event of discrepancies between the German and English versions of these Terms of Service, the German version shall prevail.