Terms & Conditions

Effective date: Sep 1, 2020
  1. General, Scope

Bananapie GmbH, Eisenbhanstr. 11, 10667 Berlin, Germany (hereinafter referred to as "Getshopper") is the owner of all copyright and other rights of use and exploitation to the internet-based platform it offers for the development and marketing of mobile shopping apps.

These General Terms and Conditions (hereinafter referred to as "GTC") regulate the relationship between Getshopper and companies that make use of the services offered by Getshopper as defined in Annex 1 of the individual contract ("Service Description") (hereinafter referred to as "Customers"). These GTC apply exclusively to customers who are entrepreneurs within the meaning of § 14 BGB (German Civil Code), a legal entity under public law or a special fund under public law.

Offers and services of Getshopper shall be made exclusively on the basis of these GTC, which shall be supplemented by the provisions in individual contracts and their annexes. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract with Getshopper if Getshopper expressly agrees to their validity. This requirement of consent shall also apply if Getshopper renders services without reservation in the knowledge of the customer's general terms and conditions.

  1. Definitions

The following terms shall have the following meaning in the context of the individual contract and these General Terms and Conditions:

Working Day means a period of 8 hours;

Individual Contract means the offer or the contract that refers to these GTC, including the associated annexes (in particular the annexes "Description of Services", "Individual Functional Extensions" as well as "Contract for Commissioned Data Processing pursuant to Art. 28 DSGVO");

Branch(s) means one or more locations configured as "Branch" in the Getshopper Admin Area The number of Branches is the basis for calculating the contractually agreed basic fee. An increase in the number of branches within the contract period leads to an increase in the monthly basic fee. A reduction of the connected stores within the contract period is not possible;

Intellectual property rights means copyrights, patents, trademarks, database rights, erfindings, trade and business secrets, know-how and other industrial property rights;

Group Company means, with respect to a Party, a company that is a Group Company within the meaning of Section 18 of the German Stock Corporation Act (AktG) in relation to such Party;

Customer Data means data (in whatever form) from the Customer's sphere of possession or control that the Customer provides to Getshopper in connection with the Individual Agreement;

Milestone means an effective date or event related to Getshopper's obligations under the Individual Agreement that is expressly designated as a "Milestone" in the Individual Agreement;

Party(ies) means the parties to the Individual Contract (or either party);

Productive System means a deployment environment on which real data is productively worked with;

Test System means a deployment environment on which fictive test data is worked with;

Contract Year means a period of 12 months from the Effective Date of the Individual Contract and any subsequent continuous period of 12 months during the term of the Individual Contract;

Confidential Information means any information of a party which by its nature should be kept identifiably confidential or which is expressly designated by a party as confidential;

  1. Scope of Services.

Getshopper provides companies with a technical infrastructure to develop mobile shopping apps and or omnichannel solutions and use them as software-as-a-service. The services offered by Getshopper within the scope in relation to the Shopping Apps include, on the one hand, services required in advance of the operation of the Omnichannel Suite and, on the other hand, the operation of this platform as a "Software-as-a-Service" (hereinafter also referred to as "SaaS solution"), as well as support services directed towards this. Unless expressly agreed otherwise, the development of customer-specific solutions or necessary adaptations to the customer's systems shall not be part of the contract with Getshopper.

The concrete scope of services to be provided by Getshopper shall be defined in the individual contract including its annexes.

Getshopper may provide updated versions of the services offered (SaaS) and shall inform the customer electronically about updated versions and corresponding instructions for use and make them available accordingly. Getshopper reserves the right to provide certain functionalities only against additional payment.

Getshopper shall create backups of the data generated in the services offered by Getshopper (SaaS) in automated processes at regular intervals. Upon request, Getshopper shall provide the customer with specific data for download and for the creation of own backups. The contractual scope of services does not include compliance with archiving obligations to which the customer is subject. In particular, commercial and tax data generated in the Getshopper platforms may be subject to longer-term retention obligations for which the customer is responsible.

  1. Conclusion of contract, term and termination.

The contract is concluded by the customer installing the Getshopper App in the Shoopify App Store and accepting the General Terms and Conditions.

The start of the individual contract ("Contract Start"), begins with installation of the Shopify App and end test period. The customer has the right to terminate the contract daily.

The right to extraordinary termination remains unaffected (see section 16 regarding the right to extraordinary termination and regarding further termination rights for the customer).

Cancellation declarations must be made in writing and can be sent with a valid electronic signature to cancelgetshopper@bananapie.io or by post to the following address:

Getshopper c/O Bananapie GmbH, Eisenbahnstr. 11, 10997 Berlin Germany.

  1. Duties of the customer

5.1 Principle

The customer is responsible for the use of the services of Getshopper, the proper processing of his data and the results achieved by the use of the services of Getshopper. The customer shall fulfill the obligations to cooperate incumbent upon him completely, professionally and in due time. Unless otherwise stipulated, all duties to cooperate shall be performed upon conclusion of the contract.

*5.2 Personal responsibility

Getshopper is not responsible for ensuring that the sale of your goods via the Getshopper platform is legally permissible. This applies, for example, to sales bans or sales restrictions with regard to legal regulations such as the law on the protection of minors, the law on the circulation of medicinal products and the food, consumer goods and animal feed code.

Furthermore, Getshopper is not responsible for ensuring that the manner of distribution is permissible and that e.g. legal information obligations, instruction obligations etc. are complied with. The guarantee of the legal admissibility and the fulfillment of the legal obligations is the sole responsibility of the customer.

It is the customer's responsibility to check whether the services offered by Getshopper comply with his actual and legal requirements addressed to him.

5.3 Other obligations of the customer

The customer shall further

  1. appoint at least one contact person with project-related competence as project manager on the customer's side, insofar as an individual contract exists and, if necessary, replace it, who can be reached during the customer's usual business hours.
  2. to the extent necessary, the customer will provide additional employees with sufficient knowledge and experience to ensure a continuous, timely flow of informationfluss.
  3. actively support test runs. This applies in particular to tests in simulated live conditions and includes in particular the provision of test data and the evaluation/assessment of generated order suggestions and forecasts.
  4. implement the interface for data exchange specified by Getshopper independently and - if necessary - update it, unless otherwise expressly agreed. The customer is independently responsible for ensuring the required security and scalability.
  5. notify all significant changes regarding the information provided to Getshopper via the interface, in particular significant extensions of the data or significant changes in the data quality.
  6. follow conflict notices and instructions when using the services of Getshopper to avoid errors - as far as not unreasonable - and in case of doubts in the use, make use of the support;
  7. check before transferring the data to Getshopper whether he is entitled to use the data and obtain any necessary rights of use or consents of third parties;
  8. ensure that no rights of third parties are violated by the provision and contractual use of data and content;
  9. keep the access authorizations assigned to him/her secret, do not pass them on to unauthorized persons and protect them from access by third parties. If there is a suspicion that access data or passwords have become known to unauthorized persons, the customer shall inform Getshopper immediately;
  10. refrain from unauthorized retrieval of data or information by himself or by third parties or from interfering with data networks or programs of Getshopper or having them interfered with;
  11. not to misuse the services of Getshopper or allow them to be misused, in particular not to transmit any information with immoral or illegal content and not to refer to such information which serves to incite the people, incite criminal offences or glorify or trivialize violence, are sexually offensive or pornographic, are capable of seriously endangering children or young people morally or impairing their well-being or may damage the reputation of Getshopper;
  12. transfer, assign or pledge rights and obligations arising from the individual contract to third parties only with the prior written consent of Getshopper.

5.4 Effects of delayed or non-fulfillment of obligations to cooperate.

If the customer does not perform the duties incumbent upon him - in particular to provide data - or does not perform them as agreed or does not perform them in time, dates, deadlines and milestones promised by Getshopper shall be postponed by an appropriate period of time.

In this case Getshopper shall set the customer a reasonable grace period for the performance of his obligations to cooperate and shall inform him of the consequences of non-performance. In case of fruitless expiry of the grace period, Getshopper shall be entitled to perform fungible actions itself and to claim reasonable remuneration for the additional expenses incurred thereby.

  1. Compensation and payment/suspension of services in case of default.

The use of Gesthopper is free of charge.   In case of individual orders, in which the customer wishes individual adjustments, the following regulations apply.

The customer is obliged to pay the agreed remuneration in due time. The amount of the remuneration, the type of billing (effort-based and/or monthly billing as well as separate fees and expenses) as well as their due date result from the individual contract. The remuneration and other expenses listed in the individual contract are exclusive of the statutory value-added tax.

Insofar as a remuneration based on expenses has been agreed, invoicing shall be based on the agreed daily rates and for the agreed invoicing period. Getshopper shall enclose a list of the expenses incurred with the invoice. Getshopper reserves the right to make the provision of services dependent on the payment of an appropriate advance.

Insofar as a monthly payment has been agreed, Getshopper reserves the right to invoice additional expenses in accordance with the provisions of clause 5.5. Getshopper shall be entitled to adjust the monthly remuneration during the term of the contract if it turns out that the customer has withheld essential information or provided false information at the time of the conclusion of the contract and this leads to considerable additional expenses for Getshopper.

Without prejudice to the rights of Getshopper to extraordinary termination according to § 314 BGB (German Civil Code), Getshopper is entitled, after expiry of a threat period of at least 14 days (calculated from the receipt of the threat of suspension of services), to suspend services to be provided on an ongoing basis, if the customer is in arrears with the payment of remuneration amounting to at least two monthly fees, calculated from the time of the declaration of the threat. The customer shall also remain obligated to continue payment of the remuneration for the period of the discontinuation of services.

  1. Data Protection

Insofar as Getshopper processes personal data transmitted by the customer within the meaning of Art. 4 No. 1 DSGVO, Getshopper shall - with the exception of the contract data and the customer's contact data - act exclusively as the customer's order processor (Art. 28 DSGVO). Getshopper will process and use these transmitted personal data of third parties only for the performance of the contract and only in accordance with the instructions of the customer. Getshopper and the Customer will conclude a contract for commissioned data processing to regulate details in the handling of personal data in writing in accordance with Art. 28 DSGVO. This commissioned data processing contract will be attached to the individual contract as Annex. The processing of the contractual data and the contact person data, which are processed in the contractual relationship between Getshopper and the customer, shall be the sole responsibility of Getshopper.

  1. Confidentiality

8.1 Handling of confidential information.

The Parties mutually undertake to keep all confidential information of the other Party that becomes known to them during the performance of the Individual Contract strictly confidential, i.e. not to disclose it to third parties and to treat it confidentially with due care (including reasonable precautions to prevent prohibited disclosures). The confidentiality agreement contained in this paragraph shall not apply to such information that the Parties have obtained from third parties in a legally permissible manner or that is in the public domain.

The parties shall ensure that their employees, agents or other persons having access to the information are subject to the same confidentiality obligation as set forth above.

8.2 Exception to the prohibition of disclosure/use.

Exempt from the foregoing provisions is such information which is proven to be in the public domain at the time of use or disclosure;

  1. was already known to the party at the time of conclusion of the individual contract or becomes known thereafter from a third party, i.e. neither from the other party nor from one of its group companies, without this violating a confidentiality agreement, statutory provisions or official orders;
  2. which must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the party required to disclose shall notify the other party in advance and provide the other party with an opportunity to oppose such disclosure.

9. Acceptance

9.1 Necessity of Acceptances

Acceptances shall be made with respect to specific elements of the Services if and to the extent provided for in the provisions of the Individual Contract.

*9.2 Acceptance criteria

Acceptance criteria shall be regulated in the individual contract. Insofar as no acceptance criteria are stipulated with regard to a specific performance, the acceptance criteria shall be deemed to have been fulfilled if the tests carried out as part of the acceptance do not reveal any significant restrictions on the agreed functions of the part of the performance concerned.

9.3 Acceptance procedures

The acceptance procedures, i.e. the methods and procedures to be applied within the framework of an acceptance test, are set out in the individual contract. Insofar as no acceptance procedures are specified with regard to a particular service, Getshopper shall determine the acceptance procedures at its reasonable discretion, which shall in principle include a functional test on a test system.

9.4 Cooperation in the context of acceptance and acceptance tests

Getshopper shall notify the customer in text form (e.g. fax or e-mail) that the relevant component of the services is ready for acceptance. At the latest with the notification of the readiness for acceptance Getshopper will inform the customer about the cooperation actions required from him for acceptance. In particular, the customer shall provide qualified personnel and required data as well as ensure the availability of the IT systems.

Immediately, but at the latest within seven days after receipt of the notification, the acceptance test shall be carried out by the customer and Getshopper.

After successful completion of the acceptance test, the customer shall immediately send Getshopper a declaration of acceptance by e-mail in text form. The acceptance test shall be deemed to have been successfully completed if the acceptance criteria for the respective component of the services to be accepted have been met and the acceptance declaration shall be deemed to have been issued if the customer does not specify in text form within seven days after completion of the acceptance test the reasons on the basis of which, in its opinion, the acceptance criteria have not been met.

If, during an acceptance test, one of the parties becomes aware of circumstances that could prevent the successful completion of the acceptance test, it shall immediately inform the other party thereof.

9.5 Failure of Acceptance Tests.

If the customer complains about services in due time, Getshopper shall comment on this within a reasonable period of time. If the service owed has significant defects, Getshopper shall remedy these within a reasonable period of time at no additional cost to the customer. Getshopper shall inform the customer as soon as the relevant components of the services are ready for a repeated acceptance test.

If significant defects are not remedied even after expiry of the deadline, without the customer being responsible for this, the customer shall be entitled,

  1. again demand from Getshopper to remedy the underlying defects without delay so that the acceptance criteria are met in order to carry out another repeated acceptance test (in this case the provisions of this section 9 shall apply accordingly);
  2. or within a period of seven days after completion of the failed acceptance test to reject the relevant part of the services to be accepted;
  3. or if, in the reasonable discretion of the customer, there is no interest in the further provision of services due to the failed acceptance test, to reject the further provision of these services and to terminate the individual contract extraordinarily.

The Customer shall only be entitled to the rights of the Customer under the above letters b and c if three acceptance tests in succession have not been successfully completed.

  1. Intellectual Property

*10.1 Principle

Unless otherwise provided, neither party grants to the other party any rights to its Intellectual Property. Each Party may use the Intellectual Property of the other Party only to the extent necessary for the performance of the Individual Agreement.

10.2 User Manuals and Comparable Documentation.

Getshopper grants Customer a simple (non-exclusive), non-transferable, temporally and geographically unrestricted right to use user manuals and comparable documentation for its own purposes. This applies to both user manuals and comparable documentation left in embodied or electronic form). Use for the customer's own purposes shall also include distribution and reproduction within the customer's group companies.

*10.3 Software

Unless expressly agreed otherwise, Getshopper shall not grant Customer any rights to the platforms and SaaS solutions provided for use.

Insofar as Getshopper supports the Customer in the implementation of the interface specified by Getshopper in the Customer's systems by providing/programming software code, Getshopper grants the Customer a simple (non-exclusive), non-transferable, locally unrestricted right, limited in time to the duration of the contractual relationship, to use the programming service in accordance with the contract. A transfer of the source code to the customer does not take place.

  1. Obligations of Release.

Notwithstanding the provisions of Clause 13, each party shall indemnify the other party from and against any and all claims of third parties that arise due to violations by the respective party of its contractual obligations or due to other breaches of duty. The principles of § 254 BGB ("contributory negligence") shall apply accordingly in this respect.

  1. Warranty

Getshopper warrants the functional and operational readiness of the SaaS solution and the related service offerings in accordance with the terms of the individual contract. Unless otherwise stipulated below, the statutory provisions on warranty shall apply.

Insofar as service levels are promised by Getshopper, the regulations agreed therein regarding the availability of the services shall only apply after completion of all integration services.

  1. Liability, Damages

Getshopper shall be liable under the individual contract and these GTC only in accordance with the following provisions:

  1. Getshopper shall be liable without limitation for damage caused intentionally or by gross negligence by Getshopper, its legal representatives or executives, as well as for damage caused intentionally by other vicarious agents of Getshopper;
  2. Getshopper shall be liable without limitation for damages caused by it intentionally or negligently resulting from injury to life, body or health.
  3. Getshopper shall be liable for damages due to missing warranted characteristics up to the amount which was covered by the purpose of the warranty and which was recognizable for Getshopper at the time the warranty was given.(4) Getshopper shall be liable for product liability damages in accordance with the provisions of the Product Liability Act.(5) Getshopper shall be liable for damages resulting from the breach of cardinal obligations by Getshopper, its legal representatives or vicarious agents of Getshopper; cardinal obligations are the essential obligations which form the basis of the individual contract, which were decisive for the conclusion of the individual contract and on the fulfillment of which the customer may rely. If Getshopper has breached these cardinal Pflichten due to slight negligence, the liability shall be limited to the amount that was foreseeable for Getshopper at the time of the respective performance.

Notwithstanding the applicability of the above provisions, Getshopper's strict liability for damages (pursuant to § 536a BGB) for defects existing at the time of conclusion of the contract shall be excluded.

The customer shall ensure that no impairments of the services or other damages are caused by programming or other work of the customer or third parties commissioned by the customer (e.g. agencies) on the Getshopper platform. If such impairments of the services are caused, these shall have no influence on our claim to remuneration. Any liability of Getshopper in this context is excluded.

In the event that Getshopper acquires third party products or other services for the customer from third parties in connection with the provision of the services, Getshopper shall pass on or assign to the customer the rights that Getshopper receives from the third party (including warranty and indemnity rights), insofar as these rights are assignable.

  1. Force majeure

14.1 Principle

Getshopper shall be released from the performance of the service under the individual contract in the event of and for the duration of force majeure, insofar as the non-performance of the service is due to the occurrence of this condition after the conclusion of the contract. A case of force majeure shall be deemed to exist in particular if

  1. fire/explosion or floods and other natural disasters for which Getshopper is not responsible;
  2. war, riots, strikes, expropriations, pandemics, cardinal changes in law and other circumstances beyond Getshopper's control;
  3. technical problems of the Internet or the power grid beyond Getshopper's control.

14.2 Force Majeure ObligationsEach Party shall immediately notify the other Party in writing of the occurrence of a Force Majeure Event. The parties shall inform each other of the effects and expected duration and shall use reasonable efforts to reduce the effects of the failure to perform.

  1. Extraordinary terminationBoth parties are entitled to terminate the individual contract for good cause.Good cause shall be deemed to exist in particular if.
  2. Getshopper or the customer commits a serious breach of the provisions of the individual contract or these GTC, so that adherence to the contract is no longer reasonable for the other party;
  3. the customer is in default of payment for at least two consecutive months;
  4. insolvency proceedings are opened against the assets of a customer or a corresponding application to open insolvency proceedings is rejected for lack of assets.
  5. Extraordinary termination due to a serious breach of duty is only possible after prior written warning, subject to a notice period of 28 working days. If the customer has knowledge of the circumstances justifying extraordinary termination for longer than 28 working days, the termination can no longer be based on these circumstances.
  6. Rights that continue to apply The termination of the individual contract shall have no effect on the rights and pflichten of the parties that arose prior to the effective date of the termination, nor on such rights and pflichten that are either expressly agreed to continue to apply or which by their nature are intended to continue to apply after the termination of the individual contract.
  7. Non-solicitation During the term of the individual contract and a subsequent period of 12 months, the customer is obliged to refrain from soliciting employees of Getshopper and to ensure that its group companies also refrain from doing so.
  8. For each case of culpable infringement, the customer undertakes to pay a contractual penalty to be determined by Getshopper in terms of amount and to be reviewed by the competent court in the event of a dispute.
  9. Individual Amendments and Supplements; General Amendment of these General Terms and Conditions** Individual amendments and supplements to the individual contract and to the General Terms and Conditions in this version must be made in writing to be effective. This also applies to a change or cancellation of this written form requirement.
  10. Getshopper shall be entitled to amend these GTC with effect for the future insofar as this is necessary for valid reasons, i.e. due to amended laws or supreme court rulings, technical changes, new organizational requirements of mass traffic, regulatory gaps in the GTC, changes in market conditions, price adjustments or other comparable reasons and does not unreasonably disadvantage the customer. Getshopper will inform the customer about this in text form. The current GTC are available at https://bananapie.notion.site/Terms-and-Conditions2-85c45935fa174608acad1c23b31418ac. If the customer does not object to the respective amendment in text form within six (6) weeks after receipt of the notification of the amendment, this shall be deemed as consent to the amendment. Getshopper will inform the customer about this fictitious consent as well as the right of objection in the respective change notifications.
  11. RankingSo far as not otherwise regulated in the individual contract or in these GTC, the regulations of the documents mentioned below shall apply in the following ranking order in case of objections:
  12. the provisions of the individual contract before
  13. the provisions of the (other) annexes to the individual contract before
  14. the provisions of these GTC.
  15. ReferenceGetshopper is entitled to name the service provision for the customer as a reference project by naming the customer.
  16. Applicable Law and Place of JurisdictionThe individual contract and the regulations of these GTC are subject to the law of the Federal Republic of Germany in Berlin Charlottenburg (excluding the UN Convention on Contracts for the International Sale of Goods).
  17. The place of performance as well as the exclusive place of jurisdiction for all disputes arising from or in connection with the individual contract and these GTC shall be at the registered office of Getshopper. However, Getshopper is also entitled to sue the customer at his general place of jurisdiction.
  18. MiscellaneousShould any provision of these GTC be or become invalid, the validity of the remaining provisions shall remain unaffected.
  19. The customer may only offset any claims of his own against claims of Getshopper if his counterclaim is undisputed or has been legally established or if it concerns counterclaims from the same legal relationship; this also applies to the assertion of rights of retention by the customer.
  20. Verbal collateral agreements do not exist