HOTELCORE GENERAL TERMS AND CONDITIONS
(As of: 15 June 2022)
Hotelcore is a brand of Gastfreund GmbH. The Gastfreund GmbH (hereafter referred to as “Gastfreund”) offers software products to companies (hereafter referred to as “Customers”) with which the Customers can provide digital information and services (e. g. via the “Digital Guest Directory”, “Info Channel”, “Hotelboard”) to their End Users (e. g. guests, patients, employees). The software solutions are provided exclusively via the Internet as Software-as-a-Service (in short “SaaS solutions”). Certain SaaS solutions can be offered as a whitelabel solution at the Customer’s request.
1. SCOPE OF THESE TERMS AND CONDITIONS
- All contractual services provided by Gastfreund are exclusively based on the following General Terms and Conditions (GT&C). These are part of all contracts which Gastfreund concludes with the Customers. Deviating terms and conditions of the Customer shall not apply if and to the extent that Gastfreund does not expressly accept them in writing. Silence with regard to such deviating terms and conditions shall in particular not be deemed as acknowledgement or consent, also not in the case of future contracts. Even if Gastfreund refers to a letter containing or referring to the terms and conditions of the Customer or a third party, this does not constitute an agreement to the validity of those terms and conditions. The exclusion of the Customer’s general terms and conditions shall also apply if these do not contain a separate provision on individual points of regulation.
- These General Terms and Conditions apply exclusively to companies within the meaning of § 14 of the German Civil Code (Bürgerliches Gesetzbuch; “BGB”), i. e. natural persons or legal entities or partnerships with legal capacity who are acting in the exercise of their commercial or independent professional activity when concluding the contract.
2. DEFINITIONS OF TERMS
- “Customers” are companies, in particular legal entities under public and private law, as well as municipal administrative bodies that enter into contractual relationships with Gastfreund.
- “End Users” are users of the SaaS solutions who use the web or app to access Customer’s services that are provided by means of the channels offered by Gastfreund (e. g. employees, guests, patients).
- “Users” are both End Users as well as Customers.
- “Backend“ is a user interface provided to the Customers by Gastfreund to manage the SaaS solutions offered by Gastfreund.
3. FORMATION OF A CONTRACT, CONTRACTUAL LANGUAGE
- The Customer may submit an application for the use of a SaaS solution in writing or in text form (also using the order form provided by Gastfreund).
- All offers made by Gastfreund (estimates and order forms) are subject to change and non-binding, unless they have been explicitly marked as binding by Gastfreund. Insofar as offers are marked as binding, this shall apply for a period of 2 weeks from the date of the offer; the date of receipt of the declaration at Gastfreund shall be decisive for the date of acceptance on the part of the Customer.
- The contract is only concluded by confirmation of the order in text form or by sending an invoice by Gastfreund, unless the offer has already been explicitly marked as binding. By submitting the signed order form or by agreeing to Gastfreund’s offer, the Customer also agrees to these GT&Cs.
- These GT&Cs can be viewed and printed by the Customer on the website of Gastfreund at hotelcore.io/termsandconditions at any time.
- Verbal information and explanations regarding products and services by Gastfreund are provided solely on the basis of past experience. They do not represent any properties, condition or guarantees with regard to the SaaS solutions. A guarantee shall only be deemed to have been assumed if Gastfreund has designated in writing a property and/or a performance outcome as “legally guaranteed”.
- Gastfreund retains ownership and/or copyright of all offers made, information given out and test/demonstration versions, slide presentations, contract documents, videos and flyers. The Customer may not make them accessible as such to third parties, disclose them, use them itself or through third parties or reproduce them without the express consent of Gastfreund.
- Contractual languages are German and English. In the event of any deviations between the German and other language versions of the offers or these General Terms and Conditions, the German version shall prevail.
4. CONTRACTUAL PERFORMANCE CONCERNING THE SAAS SOLUTIONS
- The contractual item is the provision of the selected software by Gastfreund for use via the Internet in the form of a software-as-a-service application (SaaS solution) for a fee and the setup for a fee (e. g. content and technical setup and design) as well as support services pursuant to Subparagraphs 4.4 and 4.5. The respective SaaS solution is complemented by the transfer of rights of use to mobile apps for use by End Customers as well as the provision of user interfaces via web application.
- The subject matter of the contract for SaaS solutions is thus the provision of the user application for use via browser, as well as the provision of app usage rights for Customers and End Customers for their smartphones and other mobile devices for use on the iOS and Android operating systems.
- The contractual performance obligations of Gastfreund towards the Customer result from the contract concluded between the parties. Insofar as the customer has booked several SaaS solutions, the following provisions shall apply equally to all SaaS solutions, unless otherwise agreed in writing in individual cases below.
- The SaaS solutions offered are standard software.
- Insofar as the offer comprises several services, the services shall be deemed to be individual services. This shall also apply if a total price has been agreed for the services.
- Gastfreund is permitted to involve subcontractors within the scope of its services.
- Gastfreund shall also provide the customer with a user manual in the form of virtual application support as well as access data pursuant to Subparagraph 4.5.
- Gastfreund reserves the right to offer test products/samples/preliminary displays (also in the form of test accesses, demonstration versions and prototypes). These will not be part of the service and can be blocked by Gastfreund at any time without notice and without reason. The properties of samples or test products/preliminary displays shall only become part of the contract if this has been explicitly agreed in writing. The transfer to and utilisation by third parties is not permitted.
- The Customer has the option to order further chargeable services depending on availability, e. g. translation of content, chargeable modules or content provided by third-party providers.
4.2 SOFTWARE LICENSING
Gastfreund shall make the SaaS solution available to the Customer in the respective current version to the agreed extent via the Internet against payment for the duration of the contract. For this purpose, Gastfreund sets up the SaaS solution on a server that is accessible to the Customer via the Internet. The Customer is responsible personally to ensure access to the Internet. The SaaS solution remains on the servers of Gastfreund. Gastfreund is not responsible for establishing and maintaining the data connection between the User’s terminal devices and the transfer point operated by Gastfreund. The Customer shall be responsible for the hardware and software used by the Customer as well as its technical infrastructure, unless otherwise agreed; the technical system requirements are set out in Annex 1.
4.3 RIGHTS OF USE FOR SAAS SOLUTIONS
- The SaaS solutions are provided for a limited period of time and are not transferred. Gastfreund grants the Customer, for the duration of the contract for the use of the SaaS solutions, the temporary, non-exclusive and non-transferable right to use the SaaS solution designated in the respective contract for the duration of the contract within the scope of its business operations under the following conditions.
- “Use” by the Customer for the purposes of this contract means any temporary reproduction (copying) in whole or in part by loading, displaying, running and, where applicable, transferring into working memory for the purpose of its execution. Use also includes the performance of the aforementioned actions for the purpose of observing, investigating or testing the SaaS solution provided.
- It does not include the right to change, edit, redesign, supplement, extend, disassemble and reassemble the SaaS solution, decompile it and/or have third parties do this and then use it; changing the SaaS solution and faulty corrections are not permitted. It is prohibited to reverse engineer the SaaS solution.
- The Customer may not give away or lend the SaaS solution to third parties, nor sublet or lease it.
- Without prejudice to the rights of use granted under Subparagraph 4.3, Gastfreund retains all rights to the SaaS solution.
- The Customer undertakes to retain unchanged the proprietary notices received in the SaaS solution, such as copyright notices and other reservations of rights, and to include them in unchanged form in all complete or partial copies of the licence material made by the Customer. The customer undertakes not to remove or circumvent any existing protective mechanisms against unauthorised use of the SaaS solution.
4.4 SETUP/ACCESS DATA
- Together with the acceptance of the offer, the Customer shall name a person who is to have access to the Backend by providing their name and e-mail address and, if applicable, telephone number.
- After conclusion of the contract, the person named by the Customer in accordance with Subparagraph 4.4.1 will receive an e-mail with unique access data. These can be used to log into the Backend. For security reasons, the password must be changed when logging in for the first time.
- During the term of the contract, the Customer can set up their own user access to the Backend for additional End Users belonging to their company. For this purpose, the Customer shall submit an application to Gastfreund, providing an end-user email address. Depending on the contractual agreement, additional costs may be incurred.
- Gastfreund will work with the client to set up the SaaS solution for the first time. Depending on the contract, this includes a brief introduction to the functions of the SaaS solution and / or the training of the Customer with regard to the SaaS solution as well as – if agreed – the design of the content. Adaptations to the source code of the SaaS solution are not associated with this.
- The Customer shall ensure the prevention of misuse of access mechanisms. In particular, the Customer must keep all access data secret and store them protected from access by third parties and change passwords on a regular basis. Digitally stored passwords must be encrypted. The Customer is personally responsible for ensuring that the persons authorised by him to use the service and those activated as users comply with these safety regulations. In particular, the Customer shall instruct the activated users to change their passwords immediately after their first login and on a regular basis afterwards.
- If there is reason to suspect that unauthorised persons have gained knowledge of the access data, the Customer must inform Gastfreund of this immediately and change the access data without delay.
- After completion of the setup, Gastfreund is under no further obligation to maintain the content for the Customer.
- Gastfreund shall provide free updates/maintenance of the SaaS solution by automatically installing those new updates of the SaaS solution which are the subject matter of the contract and which are issued during the term of the contract, as well as support pursuant to Subparagraph 4.5.4. For the apps, Gastfreund shall only provide the updates; the installation shall be carried out in accordance with the settings made by the Customer and End Users on their end devices, either automatically or by manual confirmation.
- Updates include corrections of defects and the maintenance of the contractual conformity of the SaaS solution, in particular they serve the purpose of
- addressing security risks,
- adaptation to the legal situation and correction of bugs, if this is necessary for the usefulness of the product,
- ensuring compatibility, interoperability, accessibility according to the systems with which products of the same type are usually used.
- Excluded from the update service are installation, instruction, training, individual adaptation of the SaaS solution or other services; this also applies to repairs, adaptations or increased effort for the maintenance of the SaaS solution or restoration of content that was necessary due to deletion of content, use in breach of contract/incorrect use, use in an environment other than the one agreed upon or for purposes other than the agreed or functional use, improper use, external influence, force majeure or similar circumstances. The same applies to work on the SaaS solution that has to be carried out because the Customer has changed content in breach of the contract. The Customer has no claim to specific changes (insofar as this is not a defect) or a specific chronological sequence of measures or a regularity of measures. In particular, the Customer has no claim to further developments with additional functions, improvements in use, participation in test phases of products, news updates, faster speeds, insofar as these are not beneficial to functionality, compatibility, interoperability, accessibility, continuity and security.
- The support for the use of the SaaS solution is limited to answering questions about the correct application, the settings and assistance in the event of technical problems on the part of the Customers.
- Support requests can be sent via e-mail at any time. The processing of requests takes place during the business hours valid at that time. Business hours at Gastfreund are from 9:00 hrs to 17:00 hrs (CET) on Monday through Friday. The public holidays of the Federal Republic of Germany and the State of Bavaria apply.
- The availability of the SaaS solution used by the Customer in accordance with Subparagraphs 4.1 to 4.2 of this agreement shall be 98.0% on an annual average. Availability is the User’s ability to use the essential functionalities of the SaaS solution. For the calculation of the actual availabilities, downtimes which are not attributable to Gastfreund according to Subparagraph 4.7.2 shall be considered available times.
- Non-attributable downtimes are
- maintenance or other services that make it impossible to access the SaaS solution; Gastfreund is entitled to carry out maintenance work. Maintenance work is always announced with adequate advance notice so that it can be foreseen.
- maintenance work that becomes necessary unexpectedly due to circumstances beyond the control and responsibility of Gastfreund (see Subparagraph 11);
- downtimes due to virus or hacker attacks, provided that Gastfreund has taken the agreed protective measures;
- downtimes due to specifications of the Customer, due to unavailability of the Customer’s equipment (in particular due to malfunctions or unavailability of the Internet at the User’s premises) or due to other interruptions caused by the Customer (e. g. failure of the Customer to cooperate);
- downtimes due to failures of deployed third-party software and third-party providers;
- downtimes for the installation of urgently needed security patches;
- downtimes due to the installation of updates, upgrades, releases or other modifications by Gastfreund;
- downtime due to software errors in Customer applications or due to errors in system and system-related software triggered by Customer applications or data.
- downtimes caused by third parties (third persons/companies not attributable to Gastfreund).
- A claim for restoration of the usability of the SaaS solution does not exist insofar as the agreed availability is guaranteed.
4.7 CHANGES TO THE SAAS SOLUTION
- The contractually agreed services can be changed by Gastfreund if and insofar as the change is necessary for valid reasons which could not be foreseen at the time of the conclusion of the contract and no additional costs arise for the Customer as a result of the change. A valid reason exists if
- new or amended statutory or other official requirements necessitate a change in performance.
- the services contain products of other manufacturers and Gastfreund does not have access to these products, no longer has access to them or only has access to them in a modified form, without this being due to circumstances for which Gastfreund is responsible,
- the agreed services can no longer be provided in the previous contractually agreed form due to new technical developments, security regulations or (data protection) legal requirements or their operability is no longer guaranteed,
- the product is to be adapted to an increased number of users or increased use or
- the change is necessary for other important operational or business reasons (e. g. provision of a unit version, differentiation of the product),
- new features/functions are provided.
- Changes to the SaaS solution are made by the Customer. This happens automatically in the browser version of the SaaS solution. For the apps, Gastfreund shall only provide the changes; the installation shall be carried out in accordance with the settings made by the Customer and End Users on their end devices, either automatically or by manual confirmation.
- If the Customer’s accessibility to the SaaS solution or the usability is impaired, Gastfreund shall inform the Customer of this in the SaaS solution with reasonable notice of 2 weeks and inform the Customer of the characteristics of the change and the time of the change.
- Changes to the designation of individual features or graphical adjustments do not entitle the Customer to terminate the contract, provided that the usability or the Customer’s ability to access the SaaS solution is only insignificantly affected by this.
5. COOPERATION BY THE CUSTOMER
- The contractual use of Gastfreund’s services is dependent on the Customers’ compliance with the technical system specifications as set out in Annex 1 and on the Users authorised by the Customer to use the SaaS solution being familiar with its operation. Insofar as the installation of third-party software/applications is required for the use of the SaaS solution (e. g. an Internet browser), the Customer shall install these. Furthermore, the Customer shall only use hardware and software for the use of Gastfreund’s services which meet the minimum requirements set out in Annex 1. The configuration of the IT systems used is the responsibility of the Customer. If the minimum requirements are not met, Gastfreund’s liability for defects may not apply.
- The Customer is obliged to provide all necessary cooperation, in particular:
- In order to prepare the SaaS solution for the operational application or to put it into operation, the Customer must, among other things, provide information on which Users are to be created and on the creation of customer accounts in the AppStore or Google PlayStore.
- To provide all content (texts, images, logos, etc.) the use of which is requested by the Customer, in a form or quality suitable for the implementation on request and in the requested manner without delay, as well as to provide all other information, documents and data required for the performance without delay, insofar as this is necessary for the operation of the SaaS solution. The corresponding data and data carriers must be free of malware. The Customer shall provide all content intended for online use in a form or resolution suitable for this purpose. The Customer alone is responsible for the procurement and acquisition of rights to this content, unless the parties have agreed otherwise in writing. Gastfreund shall not assume any obligations of inspection, in particular Gastfreund does not have any unreasonable obligation to check the materials for possible infringements of third party rights or for the existence or content of the licences. Gastfreund does not modify, select or control the materials.
- The Customer grants Gastfreund and its affiliates a royalty-free, non-exclusive, worldwide, sub-licensable, transferable licence to use the content posted via Gastfreund pursuant to §15 AktG (German Stock Corporation Act). By doing so, the Customer grants Gastfreund the right to use the posted content in media of all kinds. The granting of rights as well as the consent relates in terms of content to any commercial and non-commercial, editorial and non-editorial, digitised, electronic and printed use, in particular reproduction, distribution, making available to the public, public display, broadcasting, screening and advertising, both online (e. g. website) and in print products. This also applies to the use in social media environments. The licence ends 12 months after the contractual relationship between Gastfreund and the Customer has been terminated.
- Customer data: Gastfreund, as a technical service provider, stores content and data for the Customer, which the Customer enters and stores and makes available for retrieval in order to use the SaaS solution. The Customer shall remain the sole controller of their data. In this respect, Gastfreund is only an order processor.
- The Customer grants Gastfreund the right, for the purposes of the performance of the contract, to reproduce the data to be stored by Gastfreund for the Customer, insofar as this is necessary for the provision of the services owed under this contract, in particular to make the contents stored on the server accessible to the Customer when the Customer makes queries via the Internet and, in particular, to reproduce and transmit them for this purpose and to be able to reproduce them for the purpose of data backup. Gastfreund is also entitled to keep the data in a fail-safe system and to make changes to the structure of the data or the data format in order to eliminate faults and to defend against attacks or for the purpose of avoiding misuse.
- Furthermore, the Customer is obliged to perform all cooperation services required for the fulfilment of the purpose of the contract without undue delay and free of charge, in particular if Gastfreund requests the Customer to do so and the required measures do not exceed a reasonable effort.
6. OBLIGATIONS OF THE CUSTOMER
- The Customer undertakes
- to truthfully provide the master data, payment data, etc. on which the contract is based and – in the case of overnight accommodation – in particular the number of guest beds or guest rooms. Gastfreund must be informed of any changes without delay. In particular, this duty of notification shall apply in the event of an increase/decrease in the number of guest beds or guest rooms in overnight accommodation establishments, which entitles Gastfreund to adjust the contractually agreed prices, insofar as the number of guest beds or guest rooms was previously used to determine the price.
- to provide all personal or company-related data to be collected in the registration process for the Backend completely and truthfully, should this be necessary for the activation and use for the SaaS solution booked by the Customer.
- Insofar as the Customer enters or processes content (in particular images, video material, texts, logos, etc.) in the SaaS solution, the Customer is solely responsible for the content entered via their Backend access. The customer bears sole responsibility for the accuracy, completeness and up-to-dateness of the data and content provided by them. In this respect, the Customer is obliged to observe applicable law and to ensure that their data and content do not violate the law, official requirements, public order or morality or the rights of third parties and that the SaaS solution is not misused in any other way. This applies in particular to
- the full and correct application of and compliance with the applicable rules, instructions and regulations to ensure data protection and data security,
- compliance with the protection of privacy, in particular not posting any photographs showing other persons without first obtaining their consent, and ensuring that the images concerned are removed from the SaaS solution immediately after consent is revoked.
- provide and keep up to date all legal information obligations and notices required by law for the respective use case (such as the legal notice in the case of white label solutions for Customers or data protection notices), instructions and labels in the correspondingly marked area of the Customer Backend.
- compliance with youth protection,
- compliance with content protected by copyright, trademark or other intellectual property rights. If the Customer nevertheless processes or provides content in this respect in the Backend, they must ensure that they have the corresponding rights when publishing the content.
- Compliance with criminal law, in particular not to disseminate or otherwise process any insulting, defamatory, anti-constitutional, racist or pornographic statements or images as well as cult propaganda or membership recruitment.
- Compliance with the provisions of competition law, i. e. in particular not to provide and/or disseminate any unlawful comparative or misleading advertising or any other unfair advertising.
- not to carry out any attacks on the functionality or to facilitate or promote such attacks (e. g. spamming, hacking attempts, brute force attacks, spyware, virus attacks, worms, etc.).
- The Customer is obliged to inform their employees about the aforementioned obligations, to train them and to oblige them to comply with them.
7. SANCTIONS IN CASE OF NON-COMPLIANCE
- If there is a reasonable suspicion of non-compliance with the aforementioned provisions, Gastfreund is entitled to restrict or (temporarily) block access to the SaaS solution in whole or in part. If the suspicion is confirmed and the violation is due to the fault of the Customer, Gastfreund is entitled to terminate the contract without notice and to remove all content immediately. There shall be no refund of licence fees and/or setup fees on the basis of the provisions mentioned above.
- A reasonable suspicion of illegality and/or infringement exists in particular if
- the Customer repeatedly violates the obligations set out in Subparagraphs 6 and 7 or fails to cooperate despite repeated requests to do so,
- courts, authorities and/or other third parties notify Gastfreund of unlawful content.
- Gastfreund shall immediately notify the Customer of the blocking and the reason for it. The suspension shall be lifted as soon as the suspicion is refuted.
- If the Customer is responsible for the violation, they are obliged to compensate Gastfreund for the resulting damage. In particular, the Customer shall reimburse Gastfreund for the expenses incurred as a result of the aforementioned measures. Further rights are reserved.
- The Customer shall indemnify and keep indemnified Gastfreund, its employees, agents and vicarious agents from and against all claims or demands of third parties – including reasonable costs of legal defence – arising out of or in connection with a breach by the Customer of this agreement and alleged breaches of this agreement or the alleged infringement of third party rights, unless the Customer can prove that they are not responsible for the breach of duty underlying the infringement of property rights. Gastfreund reserves the right to exercise the exclusive defence and to assume alone any possible dispute which may lead to a claim for indemnity against the Customer. The indemnification obligations of the respective Customer remain unaffected by this. It remains at the discretion of Gastfreund whether or not to accept claims in the event of a claim by a third party which is not obviously unfounded. The Customer may not refer to the non-existence of such a claim if Gastfreund accepts such a claim. However, the Customer can avert this possibility if the Customer explicitly accepts liability for further action.
- The indemnity shall include all claims and demands of third parties which necessarily accrue to Gastfreund from or in connection with the claim (in particular court costs and lawyers’ fees), in particular claims for damages, reimbursement of lawyers’ fees, claims for reimbursement of expenses including the damage incurred by Gastfreund for the defence (incl. defence costs, expenses etc.).
- Gastfreund shall inform the Customer without delay within the scope of what is legally permissible if third parties or authorities assert claims or if indications become known that a violation of legal and/or official regulations or a violation of third party rights is attributable to the Customer. The Customer shall support Gastfreund to the best of their ability in its legal defence, in particular to provide Gastfreund promptly, truthfully and completely with all information necessary for the examination of the claims and a defence in the event of a claim by a third party.
- The SaaS solution shall be made available at the agreed start of use, insofar as the Customer has provided the cooperation services specified in Subparagraphs 5 and 6 by then, otherwise within 6 weeks after the provision of the cooperation services, in which case the Customer shall then be notified again of the start of the period of use. Should Gastfreund fail to meet an agreed deadline, the Customer shall set a reasonable grace period, which shall in no case be less than two weeks – unless unreasonable.
- Gastfreund has to bring the SaaS solution into the Customer’s area of availability. This is done by providing the access data for the SaaS solution and by providing any agreed setups.
- The use requires that the User has the technical prerequisites for access to the SaaS solution, also in the case of further development of the SaaS solution, in particular through the necessary hardware and operating system software, Internet connection as well as current browser software or current versions of the applications. The current technical requirements are shown in Annex 1. Furthermore, the use presupposes that the Customer provide the necessary cooperation services in accordance with Subparagraph 5.
- The prices and conditions contractually agreed with Gastfreund at the time of the conclusion of the contract shall apply.
- All prices are net prices in EUR plus the applicable value added tax unless otherwise stated.
- If agreed, a one-off setup fee is payable for certain SaaS solutions. This shall become due upon conclusion of the contract, unless otherwise stipulated in the contract.
- Payment is always made in advance. If payment by SEPA direct debit has been agreed between the parties, the Customer authorises Gastfreund to collect the invoice amount by direct debit. For this purpose, the Customer shall grant Gastfreund a SEPA direct debit mandate.
- Gastfreund is entitled to send the invoice to the Customer as an electronic invoice according to § 14 Section 1, p. 7, 8 UStG (Value Added Tax Act) as an e-mail.
- In the case of transfers from abroad, the Customer shall always bear the bank charges incurred.
- Invoice amounts are due immediately and payable within 14 days without any deduction, unless otherwise agreed. The date of receipt by Gastfreund is decisive for the date of payment. In the case of SEPA direct debits, the collection will take place in accordance with the payment data specified in the order form. If the Customer fails to make payment when due, interest shall be charged on the outstanding amounts from the due date at the statutory default interest rate; the right to claim higher interest and further damages in the event of default shall remain unaffected. Furthermore, Gastfreund is entitled to a general default fee of EUR 40.00.
- The contractual partner is only entitled to exercise a right of retention insofar as the counterclaim is based on the same contractual relationship.
- If the Customer delays the payment of a due payment by more than four weeks, Gastfreund is entitled to temporarily block the functionality of the SaaS solution after prior reminder with setting of a deadline and expiry of the deadline. The temporary blocking does not invalidate Gastfreund’s entitlement to remuneration. Access to the SaaS solution will be reactivated immediately after payment of the arrears.
- If the Customer is in default with an amount of at least 10% of the outstanding total claim, the following shall be deemed agreed: All claims of Gastfreund are due immediately. Gastfreund is further entitled to make the further processing of all orders of the Customer dependent on an advance payment or the provision of security or to refuse their further fulfilment after setting a reasonable period of grace. If it becomes apparent after the conclusion of the contract that the claim is jeopardised by the Customer’s lack of ability to pay, Gastfreund is entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract.
- Gastfreund will furthermore adjust the prices payable on the basis of this contract at its reasonable discretion to the development of the costs which are decisive for the price calculation. The costs relevant for the price calculation (hereinafter “total costs”) consist of costs for technology and energy, personnel and service costs, overheads (e. g. rents, interest), costs for billing and IT systems, price adjustments of third-party providers and communication networks. A price increase shall be considered and a price reduction shall be made if the total costs increase or decrease. Increases in one type of cost, e. g. personnel costs, may only be used for a price increase to the extent that they are not offset by possible decreases in other areas, such as overhead costs. In the event of cost reductions, prices shall be reduced by Gastfreund to the extent that these cost reductions are not fully or partially offset by increases in other areas (i. e. other types of costs). In exercising its reasonable discretion, Gastfreund shall choose the respective points in time of a price change in such a way that cost reductions are not calculated according to standards that are less favourable for the Customer than cost increases, i. e. that cost reductions have at least the same effect on the price as cost increases. Gastfreund will notify the Customer in text form of any changes to the prices at least six weeks before they are scheduled to take effect. In the event of a price increase, the Customer has the right to terminate the contract in text form without observing a notice period at the time the price adjustment takes effect. Gastfreund shall specifically point this out to the Customer in the notice of change. In all other respects, § 315 of the German Civil Code (BGB) shall remain unaffected.
- Irrespective of Subparagraph 9.11, Gastfreund is entitled in the event of an increase in the statutory value added tax and obliged in the event of a reduction to adjust the value added tax included in the gross prices accordingly at the time of the respective change. The Customer has no right of termination in the event of this price adjustment.
10. TERM AND TERMINATION
- The contract is concluded in each case for the duration of the agreed period of use. The contract may be terminated by either party with 3 months’ notice to the end of the respective term of use. If the contract is not terminated, it is automatically renewed for the duration of the contract in force up to that point.
- In all other respects, ordinary termination is excluded.
- The term of use shall commence at the time the SaaS solution is made available to the Customer in accordance with Subparagraph 8, i. e. at the beginning of the notified term of use. If such has not been communicated, the term of use begins with the creation of technical access to the SaaS solution.
- The right of each contracting party to terminate the contract without notice for good cause remains unaffected. Gastfreund is entitled to terminate the contract without notice in particular if
- the Customer fails to make due payments despite being granted a grace period, or
- the Customer violates the contractual provisions regarding the use of the SaaS solution, in particular does not comply with their obligations to cooperate despite a reminder,
- insolvency proceedings have been applied for or opened over the assets of the Customer’s company or over the assets of the Customer.
- there are reasons which actually make performance impossible.
- If, in the event of termination without notice, the Customer is responsible for the reason for termination, the Customer shall be obliged to pay Gastfreund the agreed remuneration less expenses saved by Gastfreund up to the date on which the contract would have ended at the earliest in the event of ordinary termination.
- Any notice of termination must be in text form to be effective.
11. FORCE MAJEURE
- Gastfreund shall not be liable for impossibility of performance or delays in performance insofar as these are caused by
- force majeure (e. g. civil unrest, acts of terrorism, natural disasters, acts of war, shortage of energy and raw materials, power failures, accidents, pandemics) as well as impediments to operation through no fault of their own (e. g. strikes/lockouts, accidents, difficulties in obtaining any necessary official permits, transport bottlenecks or obstacles, damage to machinery, damage caused by fire/water),
- not having been supplied, not having been supplied on time, or having been supplied incorrectly despite proper and sufficient coverage prior to the conclusion of the contract with the Customer in accordance with the quantity and quality from our delivery or service agreement with the Customer (congruent coverage),
- viruses or other attacks by third parties occur on the IT system, although Gastfreund has taken protective measures in accordance with the state of the art, or
- obstacles due to German, US or other applicable national, EU or international regulations of foreign trade law or due to other circumstancesfor which Gastfreund is not responsible.
- In the event of non-availability of the ordered service due to the aforementioned events of Subparagraph 11.1 for which Gastfreund is not responsible, the Customer will be informed immediately about the lack of performance. If such events make it impossible for Gastfreund to perform and the impediment is not only of temporary duration, Gastfreund is entitled to withdraw from the contract, unless they have assumed the procurement risk. In the event of hindrances of temporary duration, the performance deadlines shall be extended or the performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period.
- If a performance date has been agreed as binding and the agreed performance date is exceeded by more than eight weeks due to events pursuant to Subparagraph 11.1 or if, in the case of a non-binding performance date, adherence to the contract is objectively unreasonable for the Customer, the Customer shall be entitled to withdraw from the contract due to the part not yet fulfilled.
- In the event of withdrawal by the Customer and/or by Gastfreund, the service already provided will be refunded without delay. Further claims of the Customer, in particular claims for damages, do not exist in this case.
- If Gastfreund is in default with a service or if a service becomes impossible, for whatever reason, Gastfreund’s liability for damages is limited in accordance with Subparagraph 13 of these General Terms and Conditions.
12. COURTESY RIGHTS
- Gastfreund warrants the services offered and described in accordance with the applicable legal provisions. Gastfreund does not warrant that the SaaS solution will meet the interests or operational specifics of the Customer, unless there is a corresponding consulting fault or other fault on the part of Gastfreund or a guarantee of quality has been agreed.
- In the event of a material defect or defect of title, the statutory provisions shall generally apply unless otherwise agreed below.
- Defects shall be remedied within Gastfreund’s business hours by rectification free of charge. Gastfreund is entitled to a reasonable amount of time for this. For the guarantee of availability, the times specified in Subparagraph 4.6 shall apply.
- The Customer shall have no claim for defects if the SaaS solution does not function properly because the Customer uses it under conditions of use that have not been agreed or in a system environment that has not been agreed or otherwise in breach of this agreement or has modified it adversely themselves or through third parties. In particular, Gastfreund does not assume any warranty according to §§ 478, 479 German Civil Code (BGB)(recourse in the supply chain – supplier’s recourse) if the Customer has processed or worked on or otherwise changed the products or performance results provided under the contract, insofar as this does not correspond to the contractually agreed intended purpose of the products.
- The Customer is obliged to support Gastfreund to a reasonable extent in the removal of defects.
- The declaration of reduction or termination of the contract must be made by the Customer in writing.
- The special provisions of Subparagraph 13 of these General Terms and Conditions shall also apply to the Customer’s claims for damages.
- The following exclusions and limitations of liability apply to Gastfreund’s liability for damages, without prejudice to the other legal requirements for claims.
- Gastfreund shall be liable for damages without limitation insofar as
- these are due to gross negligence or intent,
- they have assumed a guarantee for the quality of the performance,
- these are to be replaced in accordance with the product liability act (Produkthaftungsgesetz),
- they affect life, limb or health, or
- these are based on a culpable breach of essential contractual obligations, i. e. the breach of obligations the fulfilment of which is essential for the proper performance of the contract of use and on the compliance of which the Customer may regularly rely (“cardinal duty”).
- In all other respects, liability for simple negligence and for the breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract, the occurrence of which the Customer had to expect at the time of the conclusion of the contract on the basis of the circumstances known to them at that time and insofar as no other of the exceptional cases listed in Subparagraph 13.2 exists at the same time.
- The contract-typical foreseeable damage amounts to a maximum of 100% of the annual contract volume per contract year (the contract volume results from the remuneration to be paid by the Customer for the calendar year for all services of Gastfreund or, in the case of goods, from the amount of the price paid for the goods). The above limitation of liability shall also apply to damages for loss of profit.
- In all other respects, liability for damages of any kind, regardless of the basis of the claim, including liability for culpa in contrahendo, is excluded.
- The strict liability of Gastfreund according to § 536a Section 1, 1 Alt. BGB for defects already existing at the time of the conclusion of the contract is excluded.
- The foregoing exclusions and limitations of liability shall also apply in favour of the employees, vicarious agents and other third parties whose services Gastfreund uses for the performance of the contract.
- The above provisions shall apply to all claims for damages (in particular for damages in addition to performance and damages in lieu of performance), irrespective of the legal grounds, in particular due to defects, the breach of duties arising from the contractual obligation or from tort. They also apply to the claim for reimbursement of futile expenses.
- In the event that the SaaS solutions are used by unauthorised third parties using the access data of the Customer or a Backend user, the Customer shall be liable for any fees and costs incurred as a result within the scope of civil liability until receipt of the Customer’s order to change the access data or notification of the loss or theft, provided that the Customer is at fault for the access of the unauthorised third party. Furthermore, the Customer is liable for damages incurred by Gastfreund due to the Customer’s misuse or illegal use of the SaaS solution or the services offered or due to the Customer’s breach of their obligations under this contract.
- A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
- Liability due to delay If the Customer incurs damage due to a delay for which Gastfreund is responsible, the Customer is entitled to claim compensation for the delay (including reimbursement of futile expenses) to the exclusion of any further claims. This shall amount to 0.5% of the net remuneration for the performance in default as a whole for each week of default or part thereof, but not more than 5% of the net remuneration for the total performance which is not rendered by us on time or in accordance with the contract as a result of the default. Any further compensation for the damage caused by the delay is excluded. This does not apply in the case of intentional, grossly negligent or fraudulent conduct by Gastfreund, in the case of claims for injury to life, limb or health, in the case of an agreed fixed date of performance in the legal sense and the assumption of a performance guarantee or a procurement risk pursuant to § 276 of the German Civil Code (BGB) and in the case of mandatory liability under the law.
- Liability due to impossibilityGastfreund shall be liable for impossibility of performance in cases of intent or gross negligence on the part of Gastfreund or a representative or vicarious agent as well as in cases of culpably caused injury to life, limb or health in accordance with the statutory provisions. Gastfreund’s liability in the event of impossibility of performance is, however, limited in cases of gross negligence to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in S. 1 applies at the same time. Outside the cases of S. 1 and S. 2, Gastfreund’s liability for damages due to impossibility and for reimbursement of futile expenses shall be limited to a total of 10% of the value of the performance that has become impossible. Further claims of the Customer due to impossibility of performance are excluded – even after expiry of a deadline for performance set by Gastfreund. The Customer’s right to withdraw from the contract remains unaffected. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
14. DATA PROTECTION
The Customer shall comply with the applicable data protection provisions when using the SaaS solution. The Customer is solely responsible for the data processed in the Backend as defined in Art. 4 No. 7 GDPR.
15. TRANSFER OF RIGHTS AND OBLIGATIONS
The assignment of the rights and obligations under this contract by the Customer or the User is only permitted with the prior written consent of Gastfreund. Gastfreund is entitled to entrust third parties with the performance of the obligations under this contract.
- Gastfreund is entitled to use the Customer as a reference for its SaaS solution and to reproduce and distribute its possible evaluations of the SaaS solution and/or Gastfreund as well as screenshots of its contents (except for personal data or data relating to internal company communication) by mentioning the company name, company address, logo and web address. The granting of rights as well as the consent relates in terms of content to any commercial and non-commercial, editorial and non-editorial, digitised, electronic and printed use, in particular reproduction, distribution, making available to the public, public display, broadcasting, screening and advertising, both online (e. g. website) and in print products. This also applies to the use in social media environments. For these purposes, Gastfreund is also entitled to disclose the aforementioned data to third parties.
- It should be noted that the reference data mentioned in Subparagraph 16.1 (company name, company address and web URL) are generally factual and not personal data. The GDPR is therefore generally not applicable to this.
- The Customer may object to being named as a reference at any time by sending Gastfreund a notice in text form. Gastfreund shall remove the reference – as far as Gastfreund is able to do so – without undue delay; in the case of print products Gastfreund shall be entitled to continue to use the reference until a new edition of the print product is published.
17. AMENDMENT OF THE TERMS OF THE CONTRACT
Unless otherwise specifically provided, Gastfreund is entitled to amend these Terms and Conditions to the extent necessary to adapt them to changes in the legal or technical framework conditions. Gastfreund will notify the Customer of the changes or amendments in text form at least four weeks before they take effect. If the Customer does not agree with the amendments or additions to the contractual terms and conditions, he may object to the amendments with a notice period of two weeks until the date on which the amendments or additions are intended to take effect. The objection must be made in writing. If the Customer does not object, the amendments or additions to the contractual terms and conditions shall be deemed to have been approved. With the notification of the amendments or additions to the contractual terms and conditions, Gastfreund will specifically draw the Customer’s attention to the intended significance of their conduct.
18. APPLICABLE LAW, PLACE OF JURISDICTION
- These terms and conditions and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG), subject to any other individual agreements. If foreign law is mandatory in an individual case, these terms and conditions shall be interpreted in such a way that the economic purpose pursued with them is safeguarded as far as possible.
- If the Customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship shall be Gastfreund’s place of business.
- For the sake of clarity, the jurisdiction provision of the above Subparagraph 18.2 shall also apply to such facts between Gastfreund and the Customer which may lead to non-contractual claims within the meaning of Regulation (EC) No. 864/2007. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
Annex 1: System specifications
1.1 Digital Guest Directory / Content Management System (Online system for Hotel Newspapers, Digital Guest Directory and further applications) / Wi-Fi Landing Pages / Hotelboard
For the web version:
For the app version (only for Digital Guest Directory and Hotelboard):
Use requires the Apple operating system iOS in a current version (release date not older than two years or a maximum of 2 major versions behind the current version), or the Google Android operating system in a current version (release date not older than two years or a maximum of 2 major versions behind the current version). It is the User’s responsibility to use an appropriate terminal device with an up-to-date operating system and up-to-date Gastfreund software (application) to ensure proper operation.
For both web and app versions, the Customer’s facilities must allow outgoing traffic on TCP/IP ports 80 (HTTP protocol) and 443 (HTTPS protocol) without restriction. It is the responsibility of the Customer to ensure and maintain these settings.
1.2 Info Channel
Gastfreund mini PC, Full-HD (1920×1080 pixels) capable TV set(s) with HDMI connection (in case of direct connection to the TV set(s)) or HDMI-enabled TV distribution system (in case of central feed-out of the Info Channel via the distribution system), power and Internet connection (recommended: LAN connection) for the Gastfreund mini PC.
The Customer’s facilities must allow outgoing traffic on TCP/IP ports 80 (HTTP protocol) and 443 (HTTPS protocol) without restriction. It is the responsibility of the Customer to ensure and maintain these settings.