Terms Of Use Germany

dean&david TERMS OF USE 

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE DOWNLOADING OUR APPLICATION AND/OR USING OUR SERVICE.

You hereby declare that you have read and understood these Terms of Use and agree to them by registering and/or continuing to use the Service. Use of the Application, the Service or any related services shall in any event be deemed to constitute acceptance of these Terms of Use.

Stand: 31.05.2022 

1. Scope of Application, Scope of Functions

1.1 These Terms of Use constitute the contractual basis between dean&david Franchise GmbH, Lohenstraße 8, 82166 Gräfelfing, Germany (“dean&david”) and the customer (you) for the use of the Service and the Application (as defined below), and any related services. In this context, orders can be placed via the dean&david application to be downloaded onto your mobile phone (smartphone), via a web application on our website (e.g. on deananddavid.de and deananddavid.ch) or via an app on one of our “self-order kiosks” (all three each an “Application”) at various participating franchisees of dean&david (“dean&david FN”). With such orders, you can also collect points, if applicable, which you can redeem for rewards – as described in section 7 below. Furthermore, dean&david may send you coupons which we generate in the back-end system and which we then send to you, for example, as push messages. You may redeem these coupons on the customer app for mobile device users, on the web application on a website or via an app on a “self-order kiosk”. dean&david provides these services exclusively based on these terms of use.

1.2 The dean&david application is an ordering and payment service for the food, drinks, and other services available at dean&david participating restaurants. 

1.3 Please note that we use MENU Technologies AG (“MENU”) as an external agent for the execution of orders and the processing of payments. However, you do not enter a contractual relationship with MENU.

2. Service 

2.1 You can be given the opportunity to order at participating independent and independent restaurants at dean&david (“Participation Application”) via the dean&david application to be downloaded to your mobile phone (smartphone), via a web application on a website (e.g., on deananddavid.de and deananddavid.ch) or via an app on a “self-ordering kiosk” (all three each an “Application”), to retrieve location-specific restaurant menu information or other information at participating, independent and autonomous restaurants at dean&david (“Participating Restaurants”), to place orders for meals, beverages, or other consumption at the Participating Restaurant via the Application and to pay for these. The Application may also enable Participating Restaurants to allow you to pay for orders placed with service staff. Further, Participating Restaurants may allow you to place and pay for home delivery orders using the Application (other than using the App on a self-ordering kiosk).

2.2 dean&david has no control over which restaurants participate in the Service and does not guarantee that your restaurant will be able to use the Service.

2.3 The Application may therefore enable you to browse and order meals and drinks from a Participating Restaurant. Your order triggers a process at the Participating Restaurant which informs the Participating Restaurant, dean&david and its agent MENU accordingly of your personal data, e.g., your contact details, such as telephone number, and your order. When your order is ready for collection at the counter, you will be informed either via a push message (for orders placed via the mobile app) or via SMS message (for orders placed via the web app). If the restaurant you are visiting uses guest localization, your table number or your location in the participating restaurant will also be detected by means of placed transmitters or antennas. To receive push notifications, you must have activated push notifications on your smartphone and to enable the detection of your location, you must have activated Bluetooth on your smartphone and give the application permission to detect your location. For orders placed via the self-order kiosk, the puck will tell you when your order is ready for collection at the counter. Your location can also be determined by means of a puck that is issued to you at the self-ordering kiosk or at the counter. You hereby authorize dean&david to disclose and process your orders, personal data and in particular your location data to Participating Restaurants.

2.4 As a service, dean&david, among other things, mediates your order to participating restaurants and bills them in the name of and for the account of the participating restaurants. All mediation and billing services provided to you by dean&david via the Application, other services provided, and the Application are hereinafter referred to as the “Service”. The Service is provided for your private, non-commercial use only. dean&david as franchisor is the platform operator of the Application The dean&david franchisees operate the dean&david Platform in their restaurants and can view your order and payment data for their respective restaurants. MENU, as the technology supplier, provides the dean&david application platform and can view your personal data. MENU provides dean&david with functions within the application platform that enable dean&david to communicate with you in a personalized way and to provide you with relevant information at the appropriate time.

2.5 dean&david may enable you to order and pay for food, drinks, and other services available from dean&david through the Application based on these Terms of Use.

2.6 The catering services are provided by the Participating Restaurants in their own name and for their own account. The Participating Restaurants do not act in any way for dean&david. In this respect, they enter a contract with the Participating Restaurant, but not with dean&david.

2.7 dean&david does not offer meals and drinks itself and does not operate any restaurants.

2.8 Further, it is solely at the discretion of the Participating Restaurant to enter or not enter into any hospitality or other contract with you.

2.9 You are under no obligation to use the Service; nor is dean&david under any obligation to offer the Service to you or to successfully provide the Service (including, without limitation, arranging orders or settling payments).

2.10 The application serves as a platform to present the offer of dean&david and to enable you to place orders and make payments directly from your smartphone, via a web application on a website (e.g., on deananddavid.de and deananddavid.ch) or via an app on a “self-ordering kiosk”. The catering and any other services (including ordering and payment; excluding brokerage and billing services) are therefore subject to an agreement between you and the Participating Restaurant. The agreement between you and the Participating Restaurant is not contained in these Terms of Use and terms and conditions agreed between you and the Participating Restaurant shall apply. This is the sole responsibility of the relevant Participating Restaurant.  dean&david is not a party to any such agreement at any time.

3. User Account 

3.1 In order to use the Service or the Application, to place an order on the Application provided by dean&david, you must first register and create a user account. You must be at least 18 years old to register the user account. This is currently only possible in the dean&david application to be downloaded to your mobile phone (smartphone) or, if applicable, via a web application on a website, but not at “self-order kiosks”. You must also agree to the terms of use in their respective valid form before using the app. When registering, you provide dean&david and thus its vicarious agents MENU and, if applicable, the dean&david franchisees with personal data (including e-mail, name, and your payment details). After successful registration with dean&david, you will receive a personal user account from dean&david, which you can access with a password of your choice.

3.2 User accounts are for specifically designated natural persons. dean&david stores your data in your user account. The user account combines information about you so that you and we can better understand and manage your rights and obligations as a user of dean&david.

3.3 A user account is not transferable.

3.4 You may not have more than one user account.

3.5 You guarantee that the information you provide to dean&david is correct, complete, and up to date. You must provide your own name and, if applicable, a billing address truthfully for the purposes of invoicing.

3.6 You are required to keep your user information up to date and accurate, complete, and current always. Please use the update functions in your user account to update any changes. If your information is no longer accurate, complete or current, if communication with you (and in particular the collection of payments) is not possible due to outdated, incorrect or incomplete contact information or for any other reason (in particular if the payment method is invalid or expired), we may no longer be able to provide you with a smooth operation of the Service and the Application and, in particular, you may no longer be able to access or use the Service or dean&david may terminate, suspend or discontinue the Service.

3.7 You are responsible for all activity on your account, and you are required to always keep your username and password secure and confidential.

3.8 dean&david has the right at any time to review the information you have provided and to refuse service or use of the Application, temporarily or permanently, if you reasonably violate the Terms of Use.

4. Deletion of your user Account/Termination

4.1 We also reserve the right to delete your user account if you violate these Terms of Use or applicable law.

4.2 You may terminate the concluded contract at any time by text form or by deleting your user account.

4.3 The parties’ option to terminate without notice for good cause is not affected by the above rules.

5. Requirements for the use of the Service

5.1 In order to use the Service or the Application and create a User Account, you must be 18 years of age or older. You represent and warrant that you are a natural person of legal capacity so that you may enter a binding contract.

5.2 In particular, you undertake as follows:

You will use the Service or Application for private, non-commercial purposes only and will not disclose it to any third party;
You will not allow or enable any third party to use your user account;

You will not assign, transfer, or otherwise make your user account available to any other person;
You will not use a third party’s user account;
You will comply with all applicable laws when using the Service or Application; and You will use the Service and Application only for lawful purposes;
You will not use the Service or Application to cause annoyance, nuisance or inconvenience;
You will not interfere with the proper operation of the network;

You will not attempt to harm the Service or Application in any way;

5.3 You are responsible for obtaining and updating any compatible hardware and equipment that may be required to access, update, or use the Service and Application. dean&david does not warrant that the Service, Application, or any part thereof will operate on the relevant hardware or equipment. In addition, the Service and the Application may experience disruptions and delays due to the use of the internet and electronic communications.

5.4 It is also your responsibility to check and ensure that you have downloaded the correct Application for your Device. In particular, when newer versions of the Application are released, dean&david is under no obligation to, among other things, maintain older versions or in any way ensure that they continue to function or are otherwise error free. You should always update to the latest version of the App, in particular to take advantage of new features and to ensure the smooth operation of the App.

5.5 dean&david shall not be liable if you do not have working data network access or a compatible mobile device or if you download the wrong version of the App for your mobile device. dean&david specifically reserves the right to terminate the Service or use of the App if you use the Service or the App with an incompatible or unauthorized device.

6. Payment Information

6.1 Prices for offers from Participating Restaurants (e.g. meals, drinks), can usually be found currently in this Application. These are set by the participating restaurants and are changed and updated from time to time. It is your own responsibility to check the current prices of the relevant offers from Participating Restaurants.

6.2 dean&david will invoice you for the meals and drinks or other offers or services ordered by the Participating Restaurant on its behalf through the Application or the Service. The payment will be processed through MENU. MENU will settle your payment with the dean&david Franchisee by acting as the limited collection agent for the dean&david Franchisee. Payments made by you in this manner will be treated as if you had made them directly to the Participating Restaurant. All invoices are due and payable immediately.

6.3 You agree that you will pay for all meals, beverages and other goods ordered by you from a Participating Restaurant and that dean&david or MENU, as the case may be, will debit your chosen method of payment as specified by you when you register for your orders for meals and beverages or other goods or services (including any taxes and late fees, if any, incurred in connection with your account). You are responsible for the timely payment of all charges and for providing dean&david or MENU with a valid method of payment for all charges at all times.

6.4 dean&david uses a third-party payment processor (the “Payment Processor”) through MENU to link your payment information to the Application and the Service. The processing of payments or funds, if any, in connection with your use of the Application and the Service is subject to the terms and conditions and privacy policies of the Payment Processor and your credit card issuer, in addition to these Terms of Use. dean&david is not responsible for any errors made by the Payment Processor or the credit card issuer. In connection with your use of the Services, dean&david will obtain certain transaction details which dean&david will use solely in accordance with applicable (data protection) law.

7. Collecting and Redeeming Points

7.1 You may be able to collect points, so-called Greens, by placing orders and, where applicable, by using the Application in other ways. The number of points granted in each case is described in the application and in any relevant promotion conditions. How many points and discounts are granted and under which conditions (e.g., required number of bonus points) and how and under which conditions and for which products these can be redeemed is determined by dean&david. These provisions may be changed by dean&david at any time. Excluded from the crediting of points are the purchase of vouchers and any delivery costs incurred. For points to be credited, you must be logged into the application with your user account at the time of ordering or other use of the application. A subsequent crediting of points is not possible.

7.2 If a contract for which you have received points does not come into effect, or if the contract is subsequently reversed (e.g., through cancellation, withdrawal, annulment, rescission, revocation, etc.), dean&david reserves the right to also cancel the corresponding points credit.

7.3 dean&david will credit your collected points to a points account managed for you. You can check your current points balance at any time via the application in your profile. In addition, dean&david may send you notifications about your current points balance. Objections to the accuracy or completeness of a notified points balance must be raised in writing or in text form (e.g., by e-mail) within one month of receipt of the notification at the latest. Failure to raise an objection in due time shall be deemed to constitute approval of the score communicated. You may also request a correction of the notified score after this approval, but in this case, you must prove the incorrectness or incompleteness.

7.4 You can redeem your accumulated points for regularly changing rewards or other shopping benefits. The prerequisite is the availability of the selected rewards or purchasing benefits. The rewards and/or purchase benefits available in each case and the number of points required for them in each case are announced in the application. When redeeming points, those acquired first will be credited first. Points cannot be paid out in the form of cash.

7.5 Unredeemed points expire 120 days after the last purchase via the application. Expired points cannot be redeemed and will be automatically deleted from your account. In addition, a maximum of 5000 accumulated points applies.

7.6 Once a termination or deletion of your account has taken effect, you will no longer be able to collect new points and you will no longer be able to redeem any points that may still be in your points account.

7.7 The transfer of points to third parties is only possible with the consent of dean&david.

7.8 The user is responsible for the safekeeping of the user’s smartphone on which the points are stored. In the event of misuse, there is no entitlement to compensation for points improperly redeemed by third parties.

8. License and Restrictions

8.1 Subject to your full compliance with these Terms of Use, dean&david grants you a limited, non-exclusive, non-sublicensable, revocable and non-transferable sublicense to: (i) access and use the Application on your own device in connection with your use of the Service; and (ii) access and make private and non-commercial use of all content, information and related materials made available through the Application. All rights not expressly granted herein are reserved by MENU and MENU’s or dean&david’s licensors.

8.2 You may not: (i) remove any copyright, trademark or other proprietary rights notices from the applicable portion of the Application; (ii) reproduce, modify, create second hand works from, distribute, license, rent, sell, resell, transmit, publicly display or perform, transmit, stream, broadcast or otherwise exploit the Application without the express permission of MENU; (iii) decompile, reverse engineer or disassemble the Application except as and to the extent permitted by law; (iv) link to, frame or mirror any part of the Application; (v) develop or install any program or script for the purpose of scraping, indexing, surveying or other data mining or interfere with the operation or function of any aspect of the Application. (vi) attempt to gain unauthorised access to or interfere with any part of the Application and its associated systems or networks.

8.3 The Service and the Application and all rights therein belong to and shall remain with MENU or MENU’s licensors.

8.4 Neither these Terms of Use nor your use of the Service grants you any rights: (i) in or to the Service or the Application, other than the limited licence granted above; or (ii) to use or reference MENU’s or dean&david’s company names, logos, trademarks, other marks, or those of MENU’s or dean&david’s licensors.

8.5 The Service or the Application may be made available or used in connection with or in connection with services and/or content provided by third parties (including advertising). You acknowledge that different terms of use and privacy policies may apply in this regard. dean&david is not responsible or liable for any goods, services or content provided by third parties.

9. User Content, Release

9.1 dean&david may, in its sole discretion, allow you to occasionally submit, upload, post or otherwise make available textual, audio and/or visual content and information through the Applications to dean&david, MENU and/or other Users. You are responsible for ensuring that the material made available is free from third party rights. You indemnify dean&david against any claims of third parties in the event of infringements.

9.2 You agree not to post, transmit, upload, communicate, publish, or make available any User Content that is libelous, defamatory, vulgar, violent, obscene, pornographic, otherwise objectionable, or unlawful, as determined by dean&david and/or MENU in its sole discretion, whether or not the User Content is protected by law. dean&david and MENU have the right, without notice to you, to review, monitor and remove any User Content in their sole discretion.

10. Indemnification

You agree to indemnify and hold harmless dean&david, MENU, their affiliates, dean&david FN, licensors, and officers, directors, employees and contractors from and against any and all claims, demands, costs, damages, losses, liabilities (including attorneys’ fees and costs) arising out of or in connection with your breach or violation of any provision of these Terms of Use or any applicable law, your violation of any rights of any third party, including Participating Restaurants, dean&david, MENU or otherwise arising out of or in connection with your use of the Service and/or the Application.

11. Accessibility

11.1 The benchmark for the function and capacity of the system are the performance parameters that can be expected locally in Germany according to the current state of the art.
dean&david undertakes to guarantee a system availability of at least 96%.

12.Liability

dean&david and its vicarious agents are only liable in cases of gross negligence and intent. Not to be classified as gross negligence are damages caused by computer failures and transmission disturbances during e-mail transmission or by computer viruses. The seller shall take precautions against this by means of suitable anti-virus software. Liability for slight negligence shall apply exclusively in the event of a breach of primary obligations. In this case, the Seller’s obligation to pay compensation shall be limited to 5,000.00 euros unless a higher amount is agreed separately and in writing.

13. Applicable law, Place of Jurisdiction and other provisions, Data Protection

13.1 German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
In the case of consumers, this choice of law shall only apply to the extent that the protection granted by mandatory provisions of the law of the state of the consumer’s habitual residence is not thereby withdrawn (favorability principle).
If you are not a consumer, the place of jurisdiction for all legal disputes shall be Munich.

13.2 Further information on data protection can be found here: [insert link to privacy policy].