Hotel Management Tools of HotelFriend Service GmbH – SaaS General Terms and Conditions
The present General Terms and Conditions for the use of the Internet-based hotel management software of HotelFriend GmbH ("Terms and Conditions") are valid for all between HotelFriend Service GmbH, Friedrichstr. 171, 10117 Berlin, Germany ("HotelFriend") and hotels and other accommodation enterprises (hereinafter to be referred to as "Customer"); together with HotelFriend "Parties" and in each case individually "Party") concluded contracts for the provision and operation of the under www.hotelfriend.de available Internet-based software platform for the management and retrieval of the services called in the Service Description (Annex 2).
HotelFriend has developed a modular built up hotel management software. With this software protected in copyright matters in favour of HotelFriend AG it concerns an Internet-based software solution that encloses important functions in the hotel labour organization as described in Service Description (Annex 2). HotelFriend provides this software for the use via Internet as Software-as-a-Service (SaaS) - solution.
The customer would like to use the hotel management software on rent base. The use of the HotelFriend system happens on basis of the undermentioned General Terms and Conditions (hereinafter to be referred to as "Terms and Conditions").
These terms and conditions shall apply exclusively. Deviating, opposing or supplementary Terms and Conditions of the Hotel shall solely then and insofar become an integral part of the contract unless HotelFriend has expressly agreed to its applicability in the written form. This approval requirement shall under all circumstances be applicable, e.g. also then, if HotelFriend provides services without reservation by bearing knowledge of the hotel’s general terms and conditions of business. For the inclusion of deviating, opposing or supplementary conditions, a written contract or the written confirmation of HotelFriend shall prevail.
2. Contract Conclusion; Contract Subject; Obligations to Perform by HotelFriend
2.1 Subject matter of the contract is the hotel management software developed by HotelFriend. The hotel management software is offered in packages that differ in the scope of obligation to perform and price. The scope of obligation to perform refers to the performance description in Service Description (Annex 2) and is defined by the customer in the order form. The hotel management software as well as the program modules called in the performance description are called in the following "Contract software".
2.2. A binding order and thus the conclusion of the contract takes place by sending the order form signed by authorized representatives of the customer to HotelFriend and accepting the offer of the customer by HotelFriend.
2.3 HotelFriend makes the contract software finally described in the performance description available to the customer for the use via Internet during the contract period. The customer receives therefore the technical possibility and authorization for the contract software that is hosted on a central cloud infrastructure for access by means of Internet and for use of the functionalities of the contract software within the scope of this contract.
2.4 Place of service to be performed for the contractual services of HotelFriend is the router output of the computer center used by HotelFriend. The linking of the customer to the Internet, the maintenance of the network connection as well as the procurement and supply of the hardware and software necessary on the part of the customer is not an object of this contract.
2.5 The contract Software is available seven days a week, with partial or full availability restrictions from 2:00 am to 6:00 am due to software maintenance ("Operating Time"). The average availability during the operation time is more than 99.8% in the annual average. During the remaining times ("maintenance time"), the application may nevertheless be available, with interruptions and restrictions, if necessary; there is no entitlement to use the application during the maintenance time. If maintenance work becomes necessary during the operation time and the application, therefore, is not available, HotelFriend will inform the customer in advance as early as possible, if the maintenance is not deferrable and it was not known to HotelFriend before.
2.6 HotelFriend makes German-speaking user documentation exclusively available in electronic form. This contains further tips and regulations for the use of the contract software. As far as HotelFriend additionally provides third-party software applications manufactured by third parties and no German version of the user documentation is generally available from the third-party manufacturer, HotelFriend can also provide the user documentation in English.
2.7 HotelFriend provides the customer with storage space and takes over the backup of the transferred data. HotelFriend will use virus scanners and firewalls for preventing unauthorized access to the data of the customer and transfer of damaging data, in particular viruses, as far as this is possible with adequate economical and technical costs. Nevertheless, the customer knows that an entire protection against damaging data is not possible. If a danger cannot be removed in other manner adequately with technical and economical means and promising success, HotelFriend is entitled to remove data of the customer with damaging contents. HotelFriend will inform the customer about this and allows the customer the protection of the customer data before the deletion. The customer alone is responsible for the observance of periods for safekeeping relating to the commercial and tax law.
2.8. HotelFriend secures its servers once daily in the maintenance time and keeps the backups at least for 7 working days. Furthermore, HotelFriend protects the data against access of unauthorized persons with reasonable economical adequate costs corresponding to the state of the technology. In case of still occurring data loss the customer will transfer the concerning data free of charge on the server of HotelFriend.
2.9 HotelFriend takes over the care of the contract software, in particular diagnostics and correction of faults within adequate time. Defects are essential deviations from the specification agreed by the contract. Additional care services, which are not used for the correction of faults, can be rendered according to the separate agreement and against separate compensation by HotelFriend.
2.10 HotelFriend makes various support services available to the customer according to the kind of scope of obligation to perform chosen by the customer. The details are regulated in the Service Description (Annex 2).
2.11 HotelFriend makes free product support via e-mail available to the customer. Received requests are answered by HotelFriend within 48 hours (weekends and holidays established by law and regional holidays are excluded).
2.12 Unless expressly stated above or in the service listed, HotelFriend owes no other services. In particular, HotelFriend is not obliged to the performance of installation, equipment, consultation, adaptation and/or above training services contained in the service package as well as to the creation and commission of individual programming or additional programs.
3. Rights of Use
3.1 HotelFriend grants to the customer for the term of this contract payable, non-exclusive, non-transferable, non-sub licensable right for using the contract software for the system in the computer center of HotelFriend. A transfer of commission of the contract software to the customer does not occur. As far as HotelFriend provides new versions, updates or upgrades of the contract software during the term of this contract, the above stated right of use is valid for these in the same manner. However, HotelFriend is not obligated to provide new versions, upgrades or updates, unless this is imperative for remedying defects or has been agreed elsewhere in this contract. In addition to the purposes of this contract, the customer is not entitled to use the contract software or other than his own data, to copy, download or make available to third parties outside the agreed circle of users.
3.2 For every specific case, in which the customer allows the use of the contract software by a third party culpable or grants for the third-party unauthorized rights of use, the customer should perform general compensation in the amount of double reimbursement owed by contract for this. The customer reserves the right to proof that no or an essential minor damage is given. The above stated provision is not applied to all further rights of HotelFriend.
3.3 In case of an unauthorized transfer of use or grant of right of use, the customer must immediately provide HotelFriend with all information regarding the assertion of the claims against the user, in particular the name and address and the duration of the period of use to prevent future grant of use.
3.4 The customer grants to HotelFriend for the operation of the contract software the right to use information received from him or by his authorized persons by the implementation of the contract. HotelFriend is also entitled to provide backups of the information in a failure computer center.
3.5 If the use of the service as provided in the contract is affected without fault by HotelFriend by protective rights of the third, HotelFriend is entitled to refuse the services affected through this. HotelFriend will immediately inform the customer about this and allow to him in suitable manner the access to his data. The customer is entitled during the time of interference of use to an adequate decrease of the compensation. Other claims or rights of the customer remain in force.
4. Customers Duties
4.1 The customer will fulfil all duties necessary for rendering and provision of services according to this contract on time, completely and in this subject properly.
4.2 The customer names after conclusion of the contract a contact person for HotelFriend. This person will give in particular the information necessary for the realisation of this contract and is considered as legally binding authorized for making decisions. The customer can name one or multiple other contact persons. Changes in the person of the contact person are to be informed to HotelFriend immediately.
4.3 In addition, the customer will take care in a sole responsibility that the users have an Internet connection and suitable soft and hardware equipment or configuration according to the Service Description (Annex 2) of HotelFriend. The operation and maintenance of these technical conditions lie only in the responsibility of the customer.
4.4 The customer will protect rights of use and access assigned to him or the users as well as identification and authentication protections against the access by unauthorized third and will not transfer it to unauthorized users. As soon as the user has given indices that the rights of use and access were attained by a third illegally or could be abused, the customer is obliged because of damage decrease purposes to inform HotelFriend immediately about this.
4.5 The customer will inform HotelFriend about the persons authorized by him for the use of the contract software.
4.6 In addition, the customer will obtain the necessary approval of the respective concerned person, as far as he raises, processes or uses personal data within the scope of the use of the contract software and takes no legal permission fact for this. Further the customer will follow all data protection-juridical and other statutory requirements.
4.7 The customer will use or allow to use the contract software in no case incorrect, in particular transfer no contents with illegal contents. The customer will also refrain from every attempt to retrieval unauthorized information or data by himself or by unauthorized third or to intervene or to penetrate unauthorizedly in programmes which are operated by HotelFriend, or to let intervene or into data networks of HotelFriend.
4.8 The customer will notify mistakes of the services which are contemplated by the contract to HotelFriend immediately at least in text form and give how and under which circumstances the mistake, or the lack appears and actively support HotelFriend with the mistake search. If HotelFriend determines that the defect has not occurred within the scope of responsibility of HotelFriend after examining the customer's notification of a defect, HotelFriend may charge the customer for the cost of the error message test at the applicable prices. This does not apply if the customer could not recognize even with the necessary care that the disturbance did not occur within the area of responsibility of HotelFriend.
4.9 With the use of the contract software as well as services which are contemplated by the contract the customer will follow all applicable laws and other legal regulations of the Federal Republic of Germany. It is in particular prohibited to the customer to set data or contents which break legal regulations which injure foreign protective rights or copyrights or other rights of third parties. The customer bears the responsibility for the data provided and contents by him. HotelFriend checks the contents neither for their correctness, nor for a lack of virus or virus-technical processability.
4.10 Clause 2.8 of this contract is valid for own data protection.
4.11 HotelFriend release to the customer at the time of ending of the contract all data of the hotel on a data carrier in usual format readable with standard programmes within 30 days. A lump sum of expenses regulated in the order form is due for the release of the data to the customer. The lump sum of expenses should be lower if the customer proves lower expenses.
4.12 If a third party claims an infringement of the data or content provided by the customer, HotelFriend is entitled to block the contents completely or temporarily if a doubt justified by objective criteria about the legality of the data and/or contents exists. In this case HotelFriend will ask the customer to put the legal offence within an adequate term or to prove the legality of the contents. If the customer does not follow this request, HotelFriend is entitled regardless of other rights and claims to terminate the contract for important reason without observance of a term. Expenses, which arise for HotelFriend from the called measures, HotelFriend can charge to the customer for the prices valid in each case by HotelFriend. If the customer has to hold responsibility for the injury, he will compensate to HotelFriend for the damage arising from it and release HotelFriend from any claims of the third. Further rights are reserved.
4.13 Additionally, the customer is obliged to carry out all relevant co-operation services immediately and free of charge, in particular when HotelFriend requests him to do so and the necessary measures do not exceed adequate expenses.
4.14 By a serious or other offence of the customer against his obligations from this contract as well as by repeated offence, HotelFriend is entitled to discontinue the services which are contemplated by the contract all or in part temporarily of his own choice or to terminate the contractual relationship for important reason and without observance of a term. Costs, which arise for HotelFriend from the called measures, HotelFriend can charge to the customer for the prices valid in each case by HotelFriend. If the customer has to hold responsibility for the injury, he is obliged towards HotelFriend to compensate for the damage arising from it.
4.15 The Customer grants HotelFriend the use of its own copyrighted and / or trademark protected image and word marks in products, product presentations and advertising material. This applies in particular to the customer presentation at marketplace, SaaS products, as well as websites of HotelFriend, advertising materials, social networks, studies, and other self-promotion. Deviating terms and conditions of use must be reported to HotelFriend upon delivery of the customer's image and word marks.
5.1 For the use of the contract software the customer pays the price agreed in the order form. As far as HotelFriend provides other services not expressly called in this contract, the prices valid in each case by HotelFriend are valid for this. The price-lists can be requested any time by HotelFriend.
5.2 The customer has to compensate for the use of the contract software under the access data provided to him also if it occurs through unauthorized third party. Condition for the claim of HotelFriend for the compensation is the proof that the customer is responsible for the use by the third party. The duty for compensation also exists if the customer had a reasonable suspicion that the access data have become known to a third party and HotelFriend was not immediately informed. Nevertheless, the customer meets no duty for compensation of the use by unauthorized persons if the usage action has occurred, after the customer has informed HotelFriend about the leaked out access data to a third party.
5.3 The agreed payment is due for payment in accordance with the conditions specified in the order form. Other services are due after the service has been delivered and the invoice has been received by the customer.
5.4 All called compensations and prices are understood plus the in each case valid legal sales tax. This is invoiced separately or regulated using the reverse charge process.
5.5 The compensation with counterclaims of the customer or the retention of payments because of such claims is only allowed, provided that the counterclaims are ascertained indisputable or legally and are based on the same contractual relationship. The customer can assign his claims from this contract to a third party only with previous written approval of HotelFriend.
6.1 During a default in payment of the customer for more than two successive month compensations HotelFriend is entitled to block the access to the contract software during the default in payment. In this case, the customer remains obliged to pay the monthly prices and compensations.
6.2 If the customer delays
6.2.1 for two successive months with the payment of the compensation owed according to the contract or of one not unimportant part of the prices / compensation; or
6.2.2 in a period which extends for more than two months, with the payment of the compensation in the amount of a sum which is equal to the compensation for two months, HotelFriend is entitled to terminate the contract without observance of a term and to require compensation in the amount of the sum agreed up to expiry of the regular contract term.
6.3 To determine the damage amount higher or lower if HotelFriend proves a higher or the customer - a lower damage.
6.4 HotelFriend reserves the right for the exercise of other claims because of default in payment.
6.5 If HotelFriend delays the contract software ready for service, the liability is guided according to the clause 8. The customer is entitled for the withdrawal from the contract only if HotelFriend does not keep extension of time determined by the customer, which is at least 2 weeks.
7. Service Changes
7.1 HotelFriend can change the service any time in a manner reasonable for the customer. The change is reasonable in particular when it becomes necessary for an important reason, as for example by disturbance of the service performance by subcontractors and the service signs, how it is described in the performance description and user documentation, are fulfilled furthermore essentially. HotelFriend will refer to the customer about the changes at least six weeks before them coming into force in writing or via e-mail.
7.2 Independently from this HotelFriend is entitled any time to change or to add its service offer or parts of the same. HotelFriend will announce to the customer the change or supplement at least six weeks before its coming into force in writing or via e-mail. The customer can contradict the changes with a term of two weeks from receiving of the change message in writing or via email. If the customer does not contradict, the changes and supplements become integral parts of the contract. HotelFriend will refer to the customer in the change message to the results of its behaviour. If the customer contradicts the change in time, HotelFriend can terminate the contract as soon as possible under the normal procedure.
8. Liability for Defects
8.1 Deviations of the services agreed in the performance description are valid as a defective service, not as a non-service. Corresponding warranty rights of the customer are finally regulated in this clause 8 and clause 3.6 of these Terms and Conditions (decrease because of the injury of protective rights of the third). Claim for defects come under the statute of limitations within one year after their origin. This is not valid for compensation claims. HotelFriend is responsible for defects of the services that are contemplated by the contract in accordance with this clause 8, as far as interferences are not based on restrictions of the availability.
8.2 HotelFriend renders the services with adequate care and competence as well as in keeping with customary standards. Nevertheless, HotelFriend takes over no guarantee for the fact that the services work free of any mistakes and/or without any interruptions. The Service Description (Annex 2) describes the measurable standards of the services and rights of the customer in cases in which these standards are not fulfilled.
8.3 If the services rendered by HotelFriend according to this contract are faulty, HotelFriend will amend the services of his own choice within an adequate term and after receiving of a claim or render once more. By the application of software of a third party, which HotelFriend has licensed for the use by the customer, the liability for defects in the procurement and recording of generally available upgrades, updates or service packs exists.
8.4 If the defective performance failures for reasons, for which HotelFriend is responsible, also within an adequate time limit set by the customer, the customer can diminish the agreed compensation for an adequate amount. The right of the decrease is limited to the amount of compensation payable monthly for the defective part.
8.5 If the decrease according to the clause 8.4 reaches in two months of a quarter limits given in the clause 8.3, the customer can terminate the contract without observance of a term.
8.6 The customer will inform HotelFriend immediately about appeared defects in writing or via e-mail.
8.7 The customer will support HotelFriend by the removal of the defects in a reasonable extent free of charge and will make in particular all necessary documents, data etc., which HotelFriend needs for the analysis and removal of the defects available.
8.8 Further and other than in this clause 8 expressly called claims and rights of the customer because of defects of the contractual services do not exist, as far as HotelFriend is not responsible on basis of compelling legal regulations.
9. Protective Rights of Third Parties
9.1 As far as the customer is judicially condemned because of the contract-appropriate use of the services produced by HotelFriend because of an injury of commercial protective rights and copyrights of a third party, HotelFriend releases the customer from these claims under the following conditions:
9.1.1 The customer informs HotelFriend immediately at least in text form, as soon as he has learned the claims asserted against him, and
9.1.2 the customer gives HotelFriend the control of all preventive measures and comparative negotiations. In particular the customer will give no judicial or extrajudicial acknowledgement about claims of a third party, and
9.1.3 the customer supports HotelFriend with the defence or settlement of the claims in adequate manner.
9.2 Besides the exemption obligation according to the clause 9.1 HotelFriend is obliged for the customer only to the compensation because of the injury of protective rights of a third party if HotelFriend meets a fault in the injury.
9.3 The rights of the customer according to this clause 9 do not exist, as far as the injury of protective rights of a third-party results from the fact, that the customer
9.3.1 has carried out a change in the contractual services which was not approved by HotelFriend within the scope of this contract or in other manner in writing, or
9.3.2 has used the contractual services in other manner than for the purpose of this contract, or
9.3.3 has combined with hardware or software which does not correspond requirements called in the Service Description (Annex 2).
10.1 HotelFriend is responsible for the customer at intention or coarse carelessness for all legal representatives or fulfilment assistants for caused damages according to the legal regulations. At light carelessness HotelFriend is responsible in the case of the injury of life, body, health or freedom according to the legal regulations.
10.2 HotelFriend is responsible for light careless duty injuries only, as far as HotelFriend has injured an essential contract duty (cardinal duty). In these cases, the liability both according to the art and amount is limited to the substitute of the predictable, typically arising damage. Cardinal duties for the purposes of this regulation enclose beside the contractual main service duties also obligations which fulfilment generally only may allow the proper realisation of the contract and in their observance the customer trust regularly. Moreover, in particular there are the provision and availability of the services as well as the careful handling with the data of the customer by HotelFriend.
10.3 For a single case of damage according to the clause 10.2 the liability is limited to the amount of the paid compensation per contract year. In the first contract year the annual compensation is calculated with the help of the offer.
10.4 The liability independent of fault of HotelFriend for compensation (§536 a BGB) for defects available at the conclusion of the contract is excluded. Clauses 10.2 and 10.3 remain in force.
10.5 The liability of HotelFriend according to compelling legal regulations like the product liability law remains in force.
10.6 For the rest, the liability of HotelFriend is excluded.
10.7 HotelFriend is released from the responsibility for the service according to the contract, as far as the non-fulfilment of services is due to the entry of circumstances of higher power after conclusion of the contract.
11. Data Protection and Data Security
11.1 The parties will follow the applicable regulations; in particular regulations valid for the data protection law in Germany and the employees used in connection with the contract are obliged to the data secret, so far as these are not obliged already generally accordingly.
11.2 In addition, the parties will follow the regulations which are applicable for the order data processing and for the computer center and will take the necessary technical and organizational measures for the protection of the personal data according to §9 of the Federal Data Protection Act.
11.3 If the customer collects, processes or uses personal data by himself or through HotelFriend, he is responsible for ensuring that he is entitled to do so in accordance with the applicable provisions, in particular data protection regulations, and indemnifies HotelFriend against all claims of third parties in the event of a breach.
11.4 One clarifies that the customer remains both in general in contract relations and in the data protection-juridical sense "owner of the data“ (§11 of the Federal Data Protection Act). The customer is alone entitled concerning the possession competence and the property in all customised data (input data, processed, stored data, given data). HotelFriend carries out no control of the data and contents stored for the customer with regard to a juridical admissibility of the collecting, processing and use; this responsibility is charged exclusively to the customer.
HotelFriend is only entitled to process and/or to use the customised data exclusively according to the instruction of the customer (e.g., for the observance of deletion and blocking duties) and within the scope of this contract. For HotelFriend it is forbidden in particular to make the customised data accessible for a third party in any kind without previous written approval of the customer.
This is also valid in the case if a change or supplement of the customised data occurs. However, HotelFriend is entitled to process and use of the data of the customer within the scope allowed by the data protection law during the validity of this contract.
11.5 The customer is not entitled to require access to the rooms with the contract software as well as other system components. From this untouched, access rights of the data protection representative of the customer remain after written registration for the check of the observance of the requirements according to the Order Processing Agreement (Annex 3) as well as other law- and contract-compliant handling of HotelFriend with personal data within the scope of the maintenance of the contract software according to this contract.
11.6 The parties get all documents, information and data which they have received for the realisation of this contract and which are called to them as confidential, use only for the realisation of this contract and, as long as they have become known not in general, handle confidentially. The parties are obliged to oblige their employees used in connection with the contract for the data secret according to §5 of the Federal Data Protection Act, as far as these are not obliged already generally accordingly. These obligations also continue after termination of this contract for additional two years, calculated from expiration of the contract.
11.7 HotelFriend can award subcontracts, however, has to impose a suitable obligation to the subcontractor.
12. Contract Period, Termination
12.1 If a yearly contract duration ("contract period") was agreed in the order form, the contract can be terminated by every party at the earliest to the expiry of the contract period with a term of three (3) months. If the contract is not terminated as given in sentence 1, it is extended in each case for (1) next year ("prolongation period") and then can be terminated with a term of three (3) months to the expiry of the respective prolongation period ("prolongation"). The prolongation recurs so long, until the contract is terminated. If no contract period was agreed in the order form (monthly contract duration), the contract can be terminated by every party at the month’s end.
12.2 The right to the termination for important reason remains in force. An important reason for the termination exists in particular, when:
12.2.1 one party offends against essential obligations or offends repeatedly against non-essential obligations according to the contract and does not remove the offence also by request by the other customer within adequate term, or
12.2.2 for one party the adhere to the contract is not reasonable as a result of – more than one week more repeatedly – force majeure, or
12.2.3 for the property of the other customer an application for opening of insolvency procedure has been made.
12.3 All terminations according to this contract should be made in writing, in order to be effective.
12.4 With ending of the contractual relationship, immediately for whatever reason, the parties are obliged to unwind the contractual relationship properly. After ending of the contract, the customer has no access to the contract software and there contained information. HotelFriend makes available in particular
12.4.1 to the customer at his written requirement and against payment of the suitable compensation according to the applicable price list the data of the customer from the contract software in a current file format on a mobile data carrier or for the downloading. It does not concern the data which are entitled not only and exclusively to the customer.
12.4.2 deletes immediately the data of the customer after written confirmation of the successful transfer and destroys all made copies.
13. Force Majeure
13.1 HotelFriend is released from responsibility for the service according to the contract, as far as the non-fulfilment of the service is due to the entry of circumstances of higher power after conclusion of the contract.
13.2 As circumstances of force majeure are valid, e.g., wars, strikes, riots, expropriation, storm, flood and other natural disasters as well as other circumstances not to be responsible by HotelFriend (in particular water ingress, stream failures and interruption or destruction of data-leading lines).
13.3 Every party has to inform the other party about the entry of a case of force majeure immediately and in written form and has to inform the other party in the same manner, as soon as the event of force majeure does not exist anymore.
14. Final Regulations
14.1 All stipulations which contain a change, supplement or ascertainment of these conditions of the contract as well as special assurances, guarantees and agreements must be made in writing. Guarantees are to be qualified only as guarantees in the legal sense if they are expressly called guarantee.
14.2 The parties can transfer the rights and duties from this contract only with previous written approval of the other party.
14.3 The parties agree to the application of the right of the Federal Republic of Germany to the exclusion of the UNO-trade law concerning all legal relations resulting from this contractual relationship.
14.4 Exclusive legal venue for all disputes arising immediately or indirectly from the contractual relationship between the parties is Berlin (Germany).
14.5 If one regulation of this contract shall be or become ineffective, the validity of this contract is without prejudice to the rest. The parties are obliged, within the scope of the reasonable faithfully and faith, to substitute the ineffective regulation with one, which is nearest to the economic success, provided that thereby no essential change of the contract contents is caused. The same is valid for the case that regulation gaps should exist in these Terms and Conditions.
15. Integral Parts of the Contract
15.1 Integral parts of the contract about the use of the Internet-based hotel management software of HotelFriend AG are:
• Order Form
• These General Terms and Conditions (Annex 1)
• Service Description (Annex 2)
• Order Processing Agreement (Annex 3)
15.2 At presence of contradictions between the regulations in the integral parts of the contract the integral parts are valid in the preceding order.