General Terms and Conditions for Hotels
1.1 The offers of hotelbird GmbH, Sonnenstraße 23, 80331 Munich, Germany (hereinafter referred to as “hotelbird”) to hotels (hereinafter referred to as “Customers”) are subject to these General Terms and Conditions (hereinafter also referred to as “GTC Hotel”). The Customers thereby act as entrepreneurs within the meaning of Sec. 14 German Civil Code (Bürgerliches Gesetzbuch, BGB).
1.2 General terms and conditions of the Customer or provisions of the Customer deviating from our GTC Hotel are only binding if we have expressly acknowledged these provisions in text form.
1.3 The GTC Hotel shall also apply to all future transactions between the Customer and Hotelbird.
2. Subject Matter of the Agreement
2.1 The exact extent of the subject matter of the Agreement arises from the statement of work in the order form.
2.2 Subject matter of the Agreement is the provision of the Hotelbird software application for the use of the agreed functionalities (hereinafter referred to as “Software”) for the use of its functionalities, the granting of rights of use to the software, assistance with the system set-up, interface integration, consulting, development, support, project management, training and travel costs (hereinafter referred to as “Professional Services”) as well as rendering of further accompanying services, as described in the arrangement between the Parties, in return for the payment of the agreed fee.
2.3 The Customer provides hotelbird with a compatible partner system. Hotelbird integrates the software to the deployed Property Management System (“PMS”). The Customer independently obtains and implements the necessary software modules for data exchange with the deployed PMS and for carrying out the check-in/check-out.
2.4 If the Customer ordered a connection to the locking system, the delivery, installation or operation of the locking system hardware, such as, in particular, the locking terminal and the Hotel Management System belonging to the locking terminal (hereinafter jointly referred to as “the Hardware”) are not subject matter of this Agreement. The Customer will obtain and implement the hardware required for the use of the Software in the productive operation under its own responsibility. The existence and the enforceability of this Agreement are independent of the procurement of the hardware by the Customer. This shall also apply if we have established the contact with hardware suppliers.
2.5 If the Customer has further questions regarding the operation of the software or if he needs assistance with technical problems, the Customer can contact hotelbird’s support service against payment.
3. Conclusion of the Agreement
Unless indicated otherwise in the offer, the offers from Hotelbird are subject to confirmation. The Customer shall be bound by its order for two weeks. The Agreement shall be concluded when Hotelbird accepts the Agreement through an order confirmation within the two weeks.
4. Term of Agreement
4.1 The agreed term of agreement shall apply. The Agreement is renewed for further 12 months, unless it is terminated no later than three months prior to the expiration of the current term of agreement.
4.2 Unless the Parties have determined a term, the Agreement shall begin upon conclusion of the Agreement and shall be entered into for an indefinite time. In this case, the Agreement may be properly terminated in writing by both parties with a notice period of 3 months by the end of the calendar year, for the first time, however, at the end of the calendar year following the calendar year of the conclusion of the Agreement.
4.3 Nevertheless, Hotelbird can terminate the Agreement without any notice period if the Customer is in default of the payment of the fee for two consecutive billing cycles. In this case, Hotelbird can additionally claim liquidated damages immediately payable in a lump sum in the amount of one-quarter of the fees remaining until the expiry of the regular term of agreement. The Customer is entitled to prove a lower loss or absence of loss.
5. Services and Provision
5.1 Hotelbird provides the Customer with the Software for the use by the Customer in the productive operation for its own business purposes. The Customer knows the Software and has tested it with regard to its functioning and use for its own commercial purposes. The Software shall be made available as it exists at the time of the conclusion of the agreement. An obligation of Hotelbird to further develop the Software shall not exist, unless otherwise agreed in text form between the Parties.
5.2 If the Parties agree on an installation of the Software by Hotelbird, the Software shall be made available to the Customer in the version current at the time of the conclusion of the Agreement on the data processing facilities determined by the Parties as from the agreed point in time (“Installation Date”) for use in accordance with the following provisions.
5.3 If an installation of the Software by Hotelbird has not been agreed, the Software shall be installed by the Customer itself. The Customer shall receive the Software in the version current at the time of the conclusion of the Agreement on a data carrier or via online access for installation.
5.4 We instruct the personnel designated by the Customer in the use of the Software. Place, kind, range of and costs for the introduction shall ensue from the order or shall be regulated separately by the Parties.
5.5 If the service provider has had an app developed especially for itself with its own brand (“White Label App”), then there is compatibility with the general Hotelbird App.
5.6 The agreed system requirements and necessary interfaces on the side of the Customer ensue from the specifications provided by Hotelbird and have to be made available by the Customer at least four weeks before the Installation Date. We are not responsible for the compatibility of our Software with the Hardware provided by the Customer, unless the Hardware, overall, corresponds to the specifications given by us or we have expressly assured the compatibility in text form.
5.7 After installation of the Software and the provision of the necessary interfaces to the PMS as well as the locking system by the Customer, Hotelbird shall activate the services.
5.7.1 Unless otherwise agreed, the Customer shall carry out an initial configuration. Subsequently, the licence of the Customer is activated and the use of the services is released. If, in the following, adjustments of the configuration of the Customer are necessary, Hotelbird shall support the Customer in doing so.
5.7.2 The Customer provides Hotelbird with the specific contents and settings required for the operation of the Software.
6. Obligations of the Customer
6.1 The Customer shall keep ready the necessary memory space indicated in the specifications on its data processing facilities and shall ensure that the interfaces required for the use of the Software and licenses to its information technology systems, including its hotel management system as well as locking systems are available for the connection of the Software and its use. The Customer shall conclude necessary license agreements to the interfaces with third party systems at its own expense. In particular, the Customer shall ensure that the respective current version of the PMS to be connected is made available for the productive operation. The Customer shall carry out updates intended by the manufacturer of the PMS.
6.2 The Software and the data generated by the Software are regularly, at least on each calendar day, secured by the Customer with the due care and diligence of a prudent business man. Immediately prior to every installation and/or any other intervention by us or by third parties engaged by us, the Customer shall carry out a complete data backup of all system and application data. The data backups shall be stored in such a way that a restoration of the secured data is possible at any time. The Customer alone is responsible for the compliance with the retention periods under commercial and tax law.
6.3 The Customer shall secure the Software as well as, if necessary, the login data for the access against access by unauthorized third parties by taking appropriate measures. In particular, all copies of the licensed software as well as the login data shall be stored in a secure place.
7. Rights of Use
7.1 We shall receive a simple, sublicensable right of use concerning contents and/or marks, which the Customer transmits into the Software when using the Software, with the transmission into the Software for the use of the contents and marks by us within the Software for our own purposes, in particular, if the Customer uses the Software as white-label solution under its own brand and provides the corresponding and necessary contents for this purpose.
7.2 The Customer shall receive simple, not sublicensable and not transferable rights of use limited to the term of this Agreement concerning the Software in accordance with the following provisions.
7.3 The Customer may use the Software only for its own business activities. The Customer is not entitled to make modifications to the Software. This shall not apply to modifications which are necessary for the correction of errors if we are in default with the removal of the error, refuse the elimination of the error or are otherwise unable to eliminate the error. The complete removal of the Software from one, serveral or all data processing facilities of the Customer is not deemed as modification.
7.4 If we carry out new versions, updates, upgrades or other new deliveries with regard to the Software, the aforementioned rights shall also apply to them.
7.5 The Customer is not entitled to use the Software beyond the agreed upon utilisation or allow it to be used by third parties or make the Software accessible to third parties. In particular, the Customer is not allowed to reproduce or to sell the Software or to permit the temporary use thereof.
7.6 If and insofar databases or database works are generated by the use of the Software on the data processing facilities of the Customer during the term of this Agreement, the Customer is entitled to all rights relating to these databases and database works. The Customer remains the owner of these databases or database works even after termination of the agreement. Hotelbird is entitled to data which are generated or stored within the framework of the use on the systems of Hotelbird and these data can in principle be further used by Hotelbird even after termination of the agreement. The applicable regulations on data protection (in particular Clause 12) shall remain unaffected.
7.7 The Customer then shall be exclusively entitled to decompile and reproduce the Software to the extent provided by law. However, this shall only apply under the condition that we have not made the necessary information accessible to the Customer upon request within a reasonable period of time.
8.1 The Customer shall owe the agreed upon compensation for the current license fees.
8.1.1 If a monthly remuneration is agreed upon as pace of payments, the compensation is due and payable monthly in advance from the beginning of the term.
8.1.2 If an annual remuneration is agreed upon as pace of payments, the compensation is due and payable on the Installation Date proportionately for the current year. Subsequently, the compensation is due for payment in advance, no later than on the 25th of the last month of the previous year, unless otherwise agreed.
8.2 The Customer shall owe the agreed upon compensation for the Professional Services and other agreed services. The compensation becomes due and payable upon conclusion of the agreement.
8.3 Services outside the scope of services agreed upon or the subject matter of the Agreement shall be paid separately by the Customer. Our current and applicable costs and rates of remuneration shall apply here.
8.3.1 For services, the remuneration will be charged according to the expense at the end of the month. Hotelbird shall inform the Customer about the concretely rendered services and the amount charged. The remuneration becomes payable two weeks after sending of the invoice.
8.3.2 Unless otherwise agreed, we are entitled to claim reimbursement for the expenses and costs necessary for rendering the services in addition to the remuneration, in particular travel and subsistence costs.
8.4 All prices shall be net, i.e. exclusive of VAT possibly incurred.
8.5 If the Agreement ends prematurely, Hotelbird is entitled to the remuneration which corresponds to its services rendered up to the termination of this Agreement.
8.6 If the agreed upon remuneration is based on accounting processes or key generation in the system, the number determined in the system shall be deemed to be correct as long as the counterevidence of the incorrectness or the evidence for a deviant number has not been provided by a party.
8.7 The Customer shall only be entitled to set off claims that are undisputed or that have been legally and finally determined.
9. Inclusion of Third Party Offers / Affiliate Programms
9.1 We are entitled to include service offers and/or apps of third parties (collectively or individually referred to as “Third Party Offers”) in our Software and/or app. The inclusion of Third Party Offers means, in particular, the inclusion of apps or offers which can be retrieved or activated directly from our Software and/or app or which can be included in our Software or app as independent applications, for example, by framing.
9.2 Third Party Offers may be included in the Software also subsequently (in particular, after conclusion of the contract). We are entitled at any time and merely at our own discretion and without any obligation vis-à-vis the Customer to cancel the inclusion of Third Party Offers again.
9.3 Third Party Offers are offers made by third parties within the meaning of section 7 et seq. Tele Media Act (Telemediengesetz – TMG). Therefore, we are not liable for Third Party Offers and their contents if we have obtained knowledge of illegal actions or information or have become active without delay to remove or bar access to such information as soon as we have obtained knowledge thereof.
9.4 If we include Third Party Offers, in particular, within the scope of affiliate program of third parties and have the Customer participate in the proceeds of the respective affiliate program, we reserve the right to modify or terminate at any time the inclusion and/or the agreement concerning participation.
9.5 We collect user data retrieved and/or processed by inclusion of Third Party Offers in our Software and/or app always ourselves as controller even if we operate the Software or app as data processor for the Customer. The Customer is obliged to inform the users about this circumstance in a clarifying manner in his privacy declaration used for the use of the Software or by any other appropriate means. Upon request, we provide the Customer with the necessary information.
10. Reference Naming
We are entitled to publicly notify the name and the logo of the Customer as reference upon conclusion of the contract taking into account the confidentiality provisions (Clause 11) and the data protection regulations (Clause 12). The Customer could be named, in particular, on the internet, in printed marketing material, at fairs and congresses or also at presentations/pitches.
The Parties shall maintain secrecy on all information to be treated confidentially of which they obtained knowledge within the scope of their cooperation. Any information classified as confidential include information expressly designated as confidential and such information the confidentiality of which clearly arises from the circumstances of transfer. In particular, all information about the functioning of the Software shall be treated confidentially by the Customer. The obligation concerning data protection shall remain unaffected by this confidentiality regulation.
12. Data Protection and Data Security
12.1 The Parties shall comply with the applicable provisions of data protection law. The Customer as controller is responsible to process personal data in its business in compliance with applicable data protection law. The Customer shall indemnify Hotelbird from any claims raised by data subjects against Hotelbird in connection with the processing of personal data.
12.2 Pursuant to Art. 28 GDPR the Parties enter into the agreement concerning the processing of data attached hereto as Annex “Data Processing Agreement”. In case of contradictions between these GTC Hotel and the Data Processing Agreement the provisions of the Data Processing Agreement shall prevail.
12.3 The Customer shall take the necessary measures to prevent use of the Software by unauthorized persons. The Customer shall take technical and organisational measures which are required (1) to prevent unauthorized persons accessing data processing facilities by which the Software is operated; (2) to prevent that these data processing facilities and the Software can be used by unauthorized persons; (3) to guarantee that the persons entitled to use the Software and the data processing facilities can exclusively access the data which are subject to their access authority; (4) to guarantee that the Software and the data generated by the Software cannot be read, copied, modified or removed without authorization; (5) to guarantee that the data are protected against accidental destruction or loss.
13.1 Hotelbird shall be liable without limitation vis-à-vis the Customer in case of intent or gross negligence for all damages caused by Hotelbird (including its legal representatives or vicarious agents).
13.2 Furthermore, Hotelbird shall be liable without limitation vis-à-vis the Customer in case of slight negligence in case of injury to life, body or health. Apart from that, Hotelbird shall be liable only if Hotelbird has violated an essential contractual obligation (cardinal obligation). A contractual obligation is essential if its fulfillment makes the proper performance of the contract possible at all, whose violation jeopardizes the achievement of the contractual purpose and on whose compliance the Customer regularly relies. In these cases liability shall be restricted to compensation of the foreseeable, typically occurring damage. The strict liability (liability without fault) of Hotelbird for damages (section 536 a German Civil Code – Bürgerliches Gesetzbuch (BGB)) with regard to any defects existing upon conclusion of the contract shall be excluded, with paragraphs 1 and 2 remaining unaffected.
13.3 Liability pursuant to the Product Liability Act shall remain unaffected.
13.4 For the avoidance of doubt and without restricting the aforesaid liability provisions or deviating from them to the detriment of the Customer the following applies: We shall not be liable for system failures of third parties, the conduct of third parties or the efficiency of third parties whose services we do not use to fulfill our liabilities vis-à-vis the Customer. They include, in particular, providers or operators of PMS, payment providers, locking system suppliers, third-party providers within the meaning of Clause 9 (e.g. providers of apps which are included in the Software) or “Customer Reservation Systems”.
14. Availability, Error Classes and Reaction Times, Warranty
14.1 We warrant that the Software is in a form and operating mode complying with general industrial standards, the specifications and the applicable law for use by the Customer. However, we do not guarantee and warrant that the Software complies with the business requirements of the Customer and that the Software is functioning error-free and uninterruptedly at any time.
14.2 We owe for the Software on our servers and systems an availability of 97.5% for each calendar month. Availability means that hotel guests of the Customer are enabled to check in at the hotel of the Customer and to receive the electronic key as well as to carry out the check-out. The availability shall be calculated as follows:
Total minutes means the number of minutes of the calendar month. Downtime means the number of minutes within a calendar month in which the Software is not available on our servers and systems (including exempted downtime). Exempted downtime means: (a) the planned downtime which we notified to the Customer, at least, 24 hours in advance, however, a maximum of 240 minutes per calendar month, and (b) any non-availability caused by circumstances outside the control of Hotelbird, in particular, disruption to the hardware or networks which are not operated by us, and hacker attacks and denial-of-service attacks.
14.3 If the availability of the Software on our servers and systems in a calendar month falls short of the availability defined in Clause 14.2, the Customer shall receive a credit with an equivalent value of the following percentage on the payment of the respective month concerned:
|Less than 97.5%, however, more than or equal to 96.5%||5 %|
|Less than 96.5%, however, more than or equal to 95.5%||10 %|
|Less than 95.5%, however, more than or equal to 94.5%||15 %|
Any further claims for damages of the Customer for poor performance shall be excluded, whereas the liability pursuant to Clause 13 remains unaffected. The clarification in Clause 13.4 also applies in this connection.
14.4 The Parties agree on the following error classes and reaction times:
14.4.1 Error class 1 – Operation-preventing error: The error prevents the Customer from operating its business. A workaround solution (bypass solution) does not exist. We start with the error elimination within one working day after the error report and continue with such work strenuously until we have eliminated the error during ordinary working hours (8 a.m. to 5 p.m. on working days).
14.4.2 Error class 2 – Operation-impeding error: The error impedes the operation of Customer’s business significantly. The use of the Software is, however, possible with workaround (bypass) solutions or with temporarily acceptable limitations or impediments. We start with the error elimination within two working days and continue with such work until we have eliminated the error during ordinary working hours. We can show, first of all, a workaround (bypass) solution and eliminate the error later on if this is reasonable for the Customer.
14.4.3 Error class 3 – Other errors: In case of all other errors we start within one week with the elimination of the error or eliminate the error only with the next version of the Software if this is reasonable for the Customer.
14.5 In case of the supply of updates, upgrades and new versions the claims arising from defects shall be limited to the new features of updates, upgrades or new versions delivered compared with the present state of the version.
14.6 The period within which claims for defects become statute-barred shall be twelve months.
15. Legal Defects
15.1 The Software delivered or transferred by us is free from any third party rights which would be inconsistent with the contractual use.
15.2 If third parties are entitled to such rights and if they assert such rights, we will defend the Software at our expense against third-party rights asserted. The Customer shall notify us immediately in writing of the assertion of such third-party rights and grant all powers of attorney and authorities which are necessary to defend the Software against the rights asserted by third parties.
15.3 If defects of title exist, we (a) shall be entitled at our discretion (i) to eliminate third-party rights which impair the contractual use of the Software by taking lawful measures, or (ii) to eliminate their assertion, or (iii) to modify or replace the Software in such a manner that it will no longer infringe the rights of third parties, if and insofar as the functionality of the Software owed is not seriously affected, and (b) shall be obliged to reimburse the Customer for any necessary, refundable costs of prosecution on the basis of the Lawyers Remuneration Act (Rechtsanwaltsvergütungsgesetz (RVG)).
16. Choice of Law and Place of Jurisdiction
16.1 The exclusive place of jurisdiction for all disputes arising from and in connection with this Agreement shall be Munich. We shall, however, have the right to sue the contracting party also in some other court having jurisdiction over such party.
16.2 Provided that some other jurisdiction does not become mandatory the entire contractual relationship shall be governed by the law of the Federal Republic of Germany. The applicability of the Uniform Law on the International Sale of Goods and the Uniform Law concerning the Formation of Contracts for International Sale of Goods shall be excluded.
17. Partial Invalidity
In the event that individual provisions of these GTC Hotel are or become invalid for whatever reason, this shall not affect the validity of the remaining provisions. Invalid provisions shall be replaced by provisions which come as close as possible to what the Parties have intended.
Version: February 2020