General terms and conditions of 11/18/2021
1 Definition of terms
1.1 ARGE Yamnam
"ARGE Yamnam" is used as a short form for "EB-CON GmbH and Mitges ARGE Yamnam" in the General Terms and Conditions. ARGE Yamnam provides the Yamnam software.
In these terms and conditions, the customer of Yamnam is referred to as the customer. The customer is a contractual partner of these terms and conditions.
In these terms and conditions, the customer of a Yamnam customer is referred as guest. The guest is NOT a contractual partner of these terms and conditions.
SaaS is the abbreviation for "Software as a Service". It is the common description for software that the customer cannot purchase but that is provided via a rental model.
Yamnam is the software made available by ARGE Yamnam. Yamnam is a SaaS solution and consists of several individual products and modules.
2 Scope of Services
- Yamnam consists of the products Yamnam Portal and Yamnam App.
- These two products share a common infrastructure, which is operated by ARGE Yamnam and provided via a cloud service from Google.
- Yamnam is cloud software and is provided via the Google CDN (Content Delivery Network).
- As a cloud software, Yamnam is not installed on local computers or servers, but requires a constantly available internet connection. The customer is responsible for providing an internet connection.
- Yamnam does not need a local installation, but runs in the web browser. It is not possible to provide the software as a local installation.
- Yamnam supports common browsers like Chrome and Firefox in the current versions.
- The use of Yamnam is limited to the catering and hotel industries. Use for other purposes must be agreed with ARGE Yamnam.
2.1 Yamnam Portal
- The Yamnam Portal consists of different modules. These modules cover different requirements in the catering industry. The modules can be provided by ARGE Yamnam free of charge or via subscription.
- By registering on the Yamnam portal, the customer receives a specific URL in the format https://app.yamnam.com/menu/<CUSTOMER-NAME> .
- The customer can design his company in the administration area and add his products. He can make this available to his guests via his URL or QR code.
- Depending on the subscription chosen, further functions are made available to the customer in the Yamnam portal.
2.2 Yamnam App
- The Yamnam App can be downloaded from the Google Play Store or the Apple App Store. The Yamnam App will be installed on the devices.
- The Yamnam App is not an independent software, but is an extension of the Yamnam portal.
- The Yamnam App can only be used if the relevant functionalities have already been activated in the Yamnam portal.
- The Yamnam app is provided free of charge by ARGE Yamnam and is used to make better use of the possibilities of mobile devices. The main feature here is to notify the customer of incoming orders and to process these orders.
3 Conclusion, Duration and Termination of the Contract
- In order to be able to use Yamnam, the customer registers in the Yamnam portal. The contract is created with the approval of the terms and conditions upon registration.
- The registration of a legal person may only be carried out by a natural person authorized to represent.
- ARGE Yamnam can refuse registrations without giving reasons.
- The provision of the contractually agreed services takes place from the conclusion of the contract.
- The customer can terminate the contract at any time during the free test phase.
- After the test phase has expired, the customer can take out a paid subscription. Otherwise, it will automatically be switched to the free, advertising-financed package.
- In the case of paid subscriptions, the termination depends on the duration of the subscription. In the event of cancellation, this occurs at the end of the subscription that has been concluded.
- If the subscription is not canceled before the end of the term, it will be extended by the agreed term.
- The right of each contractual partner to extraordinary termination for good cause remains unaffected.
- The contract can be terminated in writing or directly in the Yamnam software by terminating the corresponding packages.
- The customer is responsible for backing up his data in good time before the end of the contract. The customer will no longer be able to access these databases after the contract has ended.
4 Terms of Payment
- When taking out a subscription, the customer can choose between the payment methods offered.
- Delivery takes place immediately after the subscription is concluded.
- The customer is not entitled to withhold payments or recurring payments or to terminate the procedures stored for this purpose with the payment provider. A cancellation can only be made via the Yamnam portal. Costs for unjustified refunds are to be borne by the customer.
- Offsetting against other legally established claims is not permitted.
- If a payment could not be made, the customer will be notified via email and then has the option to change the payment method.
- Failed payments are repeated 4 times within 3 weeks. If no successful payment can be made during this period, the subscription will be automatically canceled and access to Yamnam blocked.
- We expressly reserve the right to adjust the respective prices for the products appropriately every year, even with existing subscription / update services. This right to adjust prices applies to increases in production and hosting costs, to annual adjustments based on the consumer index and to product extensions.
- If the customer defaults on payment, ARGE Yamnam can demand default interest in the amount of the statutory interest rate. If there is evidence of additional damage caused by delay, this can also be asserted.
- Yamnam is made available via the Google Cloud. The Google Cloud provides 99.9% to 99.99% high availability. Updates to Yamnam will be carried out on a rolling basis.
- The software may not be available for up to 5 minutes during an update. Updates are carried out outside of peak business hours. This ensures that Yamnam is highly available during business hours.
6 Obligation to provide Information
- ARGE Yamnam will inform the customer about the following changes in the newsletter regularly and promptly:
- Changes to the terms and conditions
- Updates from the Yamnam Portal
- Yamnam App updates
- Release of new modules, extensions or functions
- Fixed bugs
- The customer undertakes to subscribe to the newsletter in order to stay informed about the relevant changes.
- By canceling the newsletter, the customer loses all claims arising from the contract. If the newsletter is canceled, ARGE Yamnam also refrains from terminating the contract with the customer and deleting all of the customer's content.
7 Scope of Use
- The contractual services may only be used by the customer and for the purposes agreed in the contract. During the term of the contract, the customer may access the contractual services via telecommunication (via the Internet) and use the functionalities associated with the software in accordance with the contract using a browser or the Yamnam app. The customer does not receive any further rights, in particular to the software or any infrastructure services provided in the respective data center. Any further use requires the prior written consent of ARGE Yamnam.
- In particular, the customer may not use the software beyond the agreed scope of use or allow it to be used by third parties or make it accessible to third parties. In particular, the customer is not permitted to reproduce, sell or lend the software or parts thereof for a limited period of time.
- ARGE Yamnam is entitled to take appropriate technical measures to protect against non-contractual use. The use of the services in accordance with the contract may not be impaired by this more than only insignificantly.
- In the event that the scope of use is exceeded by a user in breach of the contract or in the event of an unauthorized transfer of use, the customer must immediately provide ARGE Yamnam with all information available to him to assert claims due to use in violation of the contract, in particular the name and address of the user.
- ARGE Yamnam can revoke the customer's access authorization and / or terminate the contract if the customer significantly exceeds the permitted use or violates regulations on protection against unauthorized use. In connection with this, ARGE Yamnam can interrupt or block access to the contractual services or delete content in the event of gross violations. In principle, ARGE Yamnam will set the customer a reasonable grace period to remedy the situation, provided that the violations do not violate the principles of ethics or copyright law. The sole revocation of the access authorization does not at the same time constitute a termination of the contract. ARGE Yamnam can only maintain the revocation of access authorization without notice for a reasonable period of time, a maximum of 3 months.
- The right of ARGE Yamnam to remuneration for the usage beyond the agreed usage remains unaffected.
- The customer has the right to be granted access authorization and the possibility of access again after he has proven that he has stopped the use that is contrary to the contract and has prevented future use that is contrary to the contract.
8 Deficiencies in Performance
- In the case of an only insignificant reduction in the suitability of the services for use in accordance with the contract, the customer shall not have any claims due to defects.
- The no-fault liability of ARGE Yamnam for defects that already existed at the time the contract was concluded is excluded.
9 Changes to Services
- ARGE Yamnam is entitled to further develop, supplement or change the SaaS solution. Contract-relevant changes will be announced 8 weeks in advance by email.
- During these 8 weeks, the customer can object to the announced changes in writing or exercise his right to extraordinary termination.
- Changes that are not contradicted become part of the contract.
- If the customer objects in time, ARGE Yamnam has the right to extraordinary termination of the contract without notice.
- Insofar as ARGE Yamnam can access personal data of the customer or from his area, ARGE Yamnam acts exclusively as a data processor and these data will only be used for the execution of the contract. This occurs especially when using guest registration. Therefore, ARGE Yamnam provides a uniform DPA (data processing agreement) for its customers.
- The customer remains the person responsible, both generally in the contractual relationship and in terms of data protection law. If the customer processes personal data in connection with the contract (including collection and use), he is responsible for ensuring that he is entitled to do so in accordance with the applicable provisions, in particular data protection law, and releases ARGE Yamnam from third-party claims in the event of a breach.
- The following applies to the relationship between ARGE Yamnam and the customer: The customer is responsible for the processing (including collection and use) of personal data vis-à-vis the data subject, unless ARGE Yamnam is responsible for any claims of the data subject due to a breach of duty attributable to him. The customer will be responsible for checking, processing and answering any inquiries, requests and claims of the data subject. This also applies if the person concerned makes use of Yamnam. ARGE Yamnam will support the customer within the scope of his obligations.
- By accepting the terms and conditions, you agree that the services of Google LLC may be used to provide our services.
11 Obligations of the Customer
- The customer must protect the access authorizations assigned to him or the users as well as identification and authentication information from access by third parties and not pass them on to unauthorized persons.
- The customer undertakes to only present content for which he owns the copyright himself or is allowed to use it through corresponding contracts.
- When using it, all applicable laws and other legal provisions must be observed.
- The customer undertakes not to present any content that is offensive, pornographic or in any other way harmful to the ethics or dignity of people.
- All transmitted data must first be scanned for computer viruses and other harmful code.
- The customer is obliged to keep his own systems, with which he logs in at Yamnam, up to date and to equip them with appropriate security systems such as firewall and anti-virus.
- The customer is fully liable for all content posted and presented on Yamnam.
- The customer is obliged to indemnify ARGE Yamnam from all claims by third parties due to legal violations that are based on illegal use of the subject of performance by him or with his approval. If the customer recognizes or has to recognize that such a violation is imminent, there is an obligation to inform ARGE Yamnam immediately.
- The customer is responsible for the timely acceptance and fulfillment of orders that come from his guests. To better coordinate the ordering process, Yamnam provides the Yamnam App and email notification.
- In the case of multilingual menus, the translation is carried out by the Google translation service. ARGE Yamnam does not guarantee the correctness of the translation. The translation by Google Translation Service can therefore only be seen as a suggestion. The customer is obliged to check the correctness himself or to have it checked.
- The guest registration for Covid-19 was implemented universally. The customer must check himself whether the guest registration provided by ARGE Yamnam complies with the requirements in his federal state.
- In order to use the payment service, the customer must register directly with a payment service provider (PSP). ARGE Yamnam only provides the connection for the PSP. All amounts of money are settled directly via the PSP. ARGE Yamnam does not charge any fees on the amounts billed.
12 Use Contrary to Contract, Compensation for Damages
For each case in which a contractual service is used without authorization in the customer's area of responsibility, the customer must pay compensation in the amount of the remuneration that would have been incurred for the contractual use within the framework of the minimum contract period applicable to this service. The customer reserves the right to prove that the customer is not responsible for the unauthorized use or that there is no or significantly less damage. ARGE Yamnam remains entitled to claim further damage.
- ARGE Yamnam operates a contact point for customers at email@example.com. This office processes the customer's inquiries in connection with the technical requirements and conditions for use of the software provided, as well as individual functional aspects.
- Support accepts such inquiries by email during normal business hours.
The support will process proper inquiries in the normal course of business and answer them as far as possible. For answers, the support can refer to documentation and other training materials for the software provided that are accessible to the customer.
14 Incident Management
- ARGE Yamnam will receive fault reports from the customer, assign them to the agreed fault categories (items a, b, c) and, on the basis of this assignment, carry out the agreed measures to analyze and rectify faults.
- ARGE Yamnam will receive proper malfunction reports from the customer during normal business hours and provide each with an identifier. At the customer's request, ARGE Yamnam will confirm receipt of a malfunction report, stating the identifier assigned.
- Unless otherwise agreed, Yamnam will assign received fault reports to one of the following categories after an initial inspection:
- Serious disorder
The disruption is based on an error in the contractual services, which makes the use of the contractual services, in particular the software, impossible or only permits it with severe restrictions. The customer cannot work around this problem in a reasonable way and therefore cannot carry out tasks that cannot be postponed.
- Other disturbance
The disruption is based on an error in the contractual services, which more than insignificantly restricts the use of the contractual services, in particular the software, by the customer, without a serious disruption being present.
- Serious disorder
- Other message
Error messages that are not in the categories a) and b) are assigned to the other reports. Other reports will only be handled by Yamnam in accordance with the agreements made for them.
- In the event of reports of serious malfunctions and other malfunctions, ARGE Yamnam will immediately take appropriate measures based on the circumstances reported by the customer in order to first localize the cause of the malfunction.
- If, after an initial analysis, the reported fault does not turn out to be an error in the contractual services, in particular in the software provided, ARGE Yamnam will notify the customer of this immediately.
Otherwise, ARGE Yamnam will initiate appropriate measures for further analysis and rectification of the reported fault or - in the case of third-party software - transmit the fault report together with its analysis results to the distributor or manufacturer of the third-party software with a request for remedial action. ARGE Yamnam will immediately provide the customer with measures to circumvent or correct an error in the contractual services, in particular the software provided, such as instructions for action or corrections to the software provided. The customer will immediately take such measures to circumvent or rectify faults and report any remaining faults to ARGE Yamnam immediately.
15 Free Offers
- ARGE Yamnam reserves the right to convert free offers into chargeable offers after a notice period of 8 weeks. Customers who want to continue to use this offer must then actively take out a paid subscription.
- Free offers are excluded from the fault management points.
- ARGE Yamnam is not liable for incorrect output of data from servers and databases. The customer is obliged to check the data provided. No guarantee is given for the data provided; this is only a non-binding offer. A corresponding note is given in the online menu.
- ARGE Yamnam is not liable for lost income that the customer incurs as a result of disruptions or failures at Yamnam.
17 Transfer of Contract
ARGE Yamnam is entitled, with a notice period of 4 weeks, to transfer rights and obligations from this contractual relationship in whole or in part to a third party. In this case, the customer is entitled to terminate the contract within two weeks after notification of the transfer of the contract.
18 Place of Jurisdiction
Kitzbühel is the place of jurisdiction. Only Austrian law.
Complaints and extraordinary termination must be sent in writing to the following address:
EB-CON GmbH und Mitges ARGE Yamnam
Brixentaler Str. 82
6361 Hopfgarten im Brixental