General Terms and Conditions for Hotels
1. SCOPE OF THE GENERAL TERMS AND CONDITIONS
1.1 The offers of Hotelbird GmbH, Plinganserstraße 150, 81369 Munich, Germany (hereinafter “Hotelbird”, “We” or “Us” etc.) to hotels (hereinafter “Customer”) are based on these General Terms and Conditions (hereinafter also “GTC Hotel”). The Customer acts as entrepreneurs within the meaning of § 14 German Civil Code (“BGB”, Bürgerliches Gesetzbuch).
1.2 Customer’s general terms and conditions deviating from our GTC Hotel shall only be binding if we have expressly accepted them in writing.
1.3 The GTC Hotel may apply to all future transactions between the Customer and Hotelbird.
2. CONCLUSION OF THE CONTRACT
Unless otherwise stated in the offer, offers from Hotelbird are non-binding. The Customer is bound to its order for two weeks. A Contract shall be concluded by Hotel- bird’s acceptance of the order from the Customer by way of an Order Confirmation within this two-week period.
3. LICENSING OF THE SOFTWARE
3.1 Scope of the Licensing Agreement
3.1.1 The detailed description of the services shall be set forth in the order form.
3.1.2 The Scope of the agreement is the provision of the Hotelbird software (hereinafter “the Software”) for use of the agreed functionalities, the granting or procurement of rights to use the Software, support in setting up the system, interface integration, consulting, development, support, project management, training and travel expenses (hereinafter “Professional Services”), as well as the provision of additional accompanying services as described in the Agreement between the Parties, subject to payment to the respective agreed fee.
3.1.3 The Customer provides Hotelbird with a compatible system. Hotelbird integrates the Software into the Property Management System (“PMS”) used. The Customer shall independently procure and implement the necessary Software modules for the data interface with the PMS and for the operation of the check-in/check-out process.
3.1.4 If the Customer has ordered a connection to the locking system, the delivery, installation or operation of the locking system hardware, such as the locking terminals and the hotel management system associated with the locking terminals (hereinafter collectively referred to as “the Hardware”), shall not be subject of this agreement. The Customer shall procure and implement the Hardware required for the use of the Software in live operation on its own. The existence and enforceability of this agreement shall be independent of the procurement of the Hardware by the Customer. This shall also apply if we have arranged contact with hardware suppliers.
3.1.5 If the Customer has further questions about the operation of the Software or needs assistance with technical problems, he can contact the paid support of Hotelbird.
3.2 Period of the Agreement
3.2.1 The agreed term applies. The agreement shall be extended by another 12 months unless it is terminated no later than three months prior to the expiry of the current term of the agreement.
3.2.2 If the parties have not specified a term, the contractual relationship shall commence upon conclusion of the agreement and shall be concluded for an indefinite period. In this case, the contractual relationship may be terminated by either party in writing with 3 months’ notice to the end of the calendar year, but for the first time at the end of the calendar year following the calendar year in which the agreement was concluded.
3.2.3 Notwithstanding the foregoing, Hotelbird may terminate the contract without notice if the Customer has been in arrears with payment of the fee for two consecutive billing cycles. Additionally, Hotelbird may in such an event demand lump-sum payment amounting to one quarter of the remaining fees up to the expiry of the regular agreement term, due immediately. The Customer reserves the right to provide evidence of lesser damages.
3.3 Services and provision
3.3.1 Hotelbird makes the Software available to the Customer for use by the Customer in live operation for its own business purposes. The Customer is familiar with the Software, has tested it for functionality and usefulness for his own business purposes. The Software is provided as is at the time of the conclusion of the contract. Hotelbird is under no obligation to further develop the Software unless otherwise agreed between the parties in text form.
3.3.2 If the parties agree on installation of the Software by Hotelbird, the Customer will receive the Software in the version current at the time of conclusion of the contract for use in accordance with the following provisions from the agreed point in time (“installation date”) on the data processing equipment determined by the parties.
3.3.3 If 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 conclusion of the contract on a data carrier or via online ac- cess for installation.
3.3.4 We shall instruct the personnel designated by the Customer in the use of the Software. The place, type, scope and costs of the instruction will be specified either in order or separately by the parties.
3.3.5 If the Customer has had an App created specifically for him with his own brand (“White Label App”), the App shall be compatible with the general Hotelbird App.
3.3.6 The agreed system requirements and necessary interfaces on the part of the Customer result from the specifications provided by Hotelbird and must be provided 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 as a whole complies with the specifications provided by us or we have expressly assured compatibility in text form.
3.3.7 After the installation of the Software and provision of the necessary interfaces to the PMS as well as the locking system by the Customer, Hotelbird will activate the services.
3.3.8 Unless otherwise agreed, the Customer will perform an initial configuration. Subsequently, the license of the Customer is activated and the use of the services is enabled. If subsequent adjustments to the Customer’s configuration are necessary, Hotelbird will support the Customer in this process.
3.3.9 The Customer provides Hotelbird with the specific content and settings required to operate the Software.
3.4 Obligations of the Customer
3.4.1 The Customer shall provide the storage space required in the specifications on its data processing systems and shall ensure that the interfaces and licenses required for the use of the Software are available for its information technology systems, including its hotel management system and locking system for the connection of the Software and use. The Customer shall conclude any necessary contracts for use of the interfaces with third-party systems at its own expense. In particular, it shall ensure that the latest version of the PMS to be connected is made available for live operation. The Customer shall carry out the updates provided for by the manufacturer of the PMS.
3.4.2 The Software and the data generated by the Software shall be backed up by the Customer with the due care of a prudent businessman on a regular basis, at least every calendar day. In particular, he shall make a complete data backup of all system and application data immediately before each installation and/or other intervention by us or by third parties commissioned by us. The data backups shall be stored in such a way that it is possible to restore the backed-up data at any time. The Customer alone shall be responsible for compliance with retention periods under commercial and tax law.
3.4.3 The Customer shall take suitable measures to secure the Software and, if applicable, the access data for access against access by unauthorized third parties. In particular, all copies of the contractual Software as well as the access data shall be kept in a protected place.
3.5 Rights of use
3.5.1 We shall receive a simple, sub-licensable right of use to the contents and/or marks which the Customer transfers to the Software with the use of the Software, in each case for our own use of the contents and marks within the Software, in particular if the Customer uses the Software as a white-label solution under its brand and provides the corresponding and necessary contents for this purpose.
3.5.2 The Customer shall receive simple, non-sublicensable and non-transferable rights of use to the Software, limited to the term of this Agreement, in accordance with the following provisions.
3.5.3 The Customer may only use the Software for its own business activities. The Customer is not entitled to make changes to the Software. This shall not apply to modifications which are necessary for the correction of errors, provided that we are in default with the correction of the error, refuse to correct the error or are otherwise un- able to correct the error. The complete removal of the Software from one, several or all of the Customer’s data processing systems shall not be deemed a modification.
3.5.4 If we make new versions, updates, upgrades or other new deliveries with regard to the Software during the term of the contract, the above rights shall also apply to these.
3.5.5 The Customer is not entitled to use the Software beyond the agreed upon use or to have it used by third parties or to make the Software accessible to third parties. In particular, the Customer is not permitted to reproduce or sell the Software or to make it available for a limited period of time.
3.5.6 If and to the extent that databases or database works are created during the term of this Agreement through the use of the Software on the Customer’s data processing equipment, the Customer shall be entitled to all rights to such databases and database works. The Customer shall remain the owner of these databases or database works even after the end of the agreement. Hotelbird is entitled to data which is created or stored on Hotelbird’s systems within the scope of use and may continue to be used by Hotelbird even after the end of the agreement. The applicable regulations on data protection (in particular clause 3.10) remain unaffected.
3.5.7 The Customer shall only be entitled to decompile and reproduce the Software if this is provided for by law. However, this shall only apply under the condition that we have not made the necessary information available to the Customer upon request within a reasonable period of time.
3.6 Fee and due date
3.6.1 The Customer shall owe the agreed remuneration for the ongoing license fees.
3.6.2 If monthly remuneration has been agreed as the payment frequency, the remuneration shall be due monthly in advance from the beginning of the term.
3.6.3 If annual remuneration has been agreed as the payment frequency, the remuneration shall be due in advance pro rata for the current year with the installation date. Thereafter, the remuneration shall be due for payment in advance, in each case no later than on the 25th day of the last month of the previous year, unless otherwise agreed.
3.6.4 The Customer shall owe the agreed fee for the Professional Services and other agreed services The fee shall be due upon conclusion of the contract
3.6.5 Services outside the agreed scope of performance or subject matter of the contract shall be remunerated separately by the Customer. Our respective current and applicable costs and remuneration rates shall apply.
3.6.6 In case of services, the remuneration is settled according to the effort at the end of the month. Hotelbird informs the Customer about the provided services and the in- voiced amount. The remuneration is due two weeks after sending the invoice.
3.6.7 Unless otherwise agreed, we shall be entitled to reimbursement of the outlays and expenses required for the performance of the services, in particular travel costs and expenses, in addition to the remuneration.
3.6.8 All prices are net, i.e. excluding any applicable VAT.
3.6.9 If the contract ends prematurely, Hotelbird is entitled to the remuneration correspond- ing to its services provided until the termination of this contract.
3.6.10 If the agreed fee is based on booking transactions or key creations in the system, the number determined in the system shall be deemed to be correct unless one party provides proof to the contrary that the number is incorrect or proof that the number is different.
3.6.11 The Customer may only set off claims that are undisputed or have become res judicata.
3.7 Integration of third-party offers / affiliate programs
3.7.1 We are entitled to integrate third-party service offerings and/or apps (collectively or in each case “Third-Party Offerings”) into our Software and/or app. The integration of third-party offers means in particular the integration of apps or offers that can be ac- cessed and activated directly from our Software and/or app or that can be integrated into our Software or app as independent applications, for example by framing.
3.7.2 The integration of the third-party offers into the Software can also take place subsequently (in particular after conclusion of the contract). We are entitled to cancel the in- integration of third-party offers at any time and solely at our own discretion and without any obligation to the Customer.
3.7.3 Third-party offers are offers of third parties in the sense of §§ 7 ff. German Telemedia Act (“TMG”, Telemdiengesetz). We are therefore not liable for the third-party offers and their content, provided that we have no knowledge of illegal acts or the information or have acted immediately to remove the information or block access to it as soon as we have obtained such knowledge.
3.7.4 Insofar as we integrate third-party offers, in particular within the framework of third- party affiliate programs, and the Customer participates in the revenues from the respective affiliate program, we reserve the right to modify or terminate the integration and/or the agreement on participation at any time.
3.7.5 We always collect and/or process usage data that is collected and/or processed through the integration of third-party offers in our Software and/or app ourselves as the responsible party, even if we operate the Software or app as an order data pro- cessor for the customer. The Customer shall be obligated to point out this circum- stance in its data protection declaration used for the use of the Software or by other suitable means in an informative manner to the Users. We shall provide the Customer with the necessary information upon request.
3.8 Reference naming Upon conclusion of the contract, we shall be entitled to publicly state the name and logo of the Customer as a reference, taking into account the confidentiality regulations (Clause 3.9) and data protection (Clause 3.10). Mentions may be made in particular on the Internet, in printed marketing material, at trade fairs and congresses or also at presentations/pitches.
3.9 Confidentiality The contracting parties shall maintain secrecy about all information to be treated as confidential which has come to their knowledge in the course of the cooperation. The information to be treated as confidential shall include information expressly designated as confidential and such information whose confidentiality is clearly evident from the circumstances of the transfer. In particular, all information concerning the functioning of the Software shall be treated as confidential by the Customer. Data protection obligations shall remain unaffected by this confidentiality provision.
3.10 Data protection and data security
3.10.1 The parties shall comply with the respective applicable provisions of data protection law. As the responsible entity, the Ordering Party itself is responsible for collecting and/or processing and/or using the personal data in its business operations in ac- accordance with the applicable data protection law. The Orderer shall indemnify Hotel- bird against any claims brought against Hotelbird by data subjects in connection with the collection, processing or use of personal data.
3.10.2 In accordance with Art. 28 of the General Data Protection Regulation (“GDPR”), the parties shall conclude the agreement on the data processing associated with this contract, which is attached to this contract as an annex entitled “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.
3.10.3 The Customer shall take the necessary precautions to prevent the use of the Software by unauthorized persons. The Customer shall take the technical and organizational measures required to (1) prevent unauthorized persons from gaining access to the data processing systems with which the Software is operated, (2) prevent such data processing systems and the Software from being used by unauthorized persons, (3) ensure that the Software and the Data Processing Equipment can only be ac- cessed by persons authorized to use the Software and the Data Processing Equipment, (4) ensure that the Software and the data generated by the Software cannot be read, copied, modified or removed by unauthorized persons, (5) ensure that the data is protected against accidental destruction or loss.
3.11.1 Hotelbird shall be liable to the Customer without limitation in the event of intent or gross negligence for all damage caused by Hotelbird (including its legal representatives or vicarious agents).
3.11.2 Furthermore, Hotelbird shall be liable to the Customer without limitation in the event of slight negligence in the case of injury to life, limb or health. Otherwise Hotelbird shall only be liable insofar as Hotelbird has breached a material contractual obligation (“Cardinal Obligation”). A contractual obligation is material if its fulfillment makes the proper execution of the contract possible in the first place, its violation endangers the achievement of the purpose of the contract and on whose compliance the Customer regularly relies. In such cases, liability shall be limited to compensation for the foreseeable, typically occurring damage. Hotelbird’s strict liability for damages (§ 536 a BGB) for defects existing at the time of conclusion of the contract is excluded, whereby paragraphs 1 and 2 remain unaffected.
3.11.3 Liability under the Product Liability Act remains unaffected.
3.11.4 For the avoidance of doubt and without limiting or derogating from the foregoing liability provisions to the detriment of the Purchaser: We shall not be liable for third party system failures, third party conduct or the performance of third parties whose services we do not use to fulfill our obligations to the Purchaser. These are in particular the providers or operators of PMS, payment providers, locking system suppliers, third party providers as defined in clause 3.7 (e.g. providers of apps that are integrated into the Software) or “Customer Reservation Systems”.
3.12 Uptime, error classification and response times, warranty
3.12.1 We ensure that the Software will be available for use by Customer in a form and function consistent with general industry standards during the term of this Agreement in accordance with the specifications and in compliance with applicable law. However, we do not warrant or represent that the Software will meet Customer’s business requirements or that the Software will operate error-free and uninterrupted at all times.
3.12.2 We shall provide an uptime of 97.5% for the Software on our servers and systems in relation to each calendar month. Uptime means that the Customer’s hotel guests are able to check-in to the Customer’s hotel via the Software and to receive the electronic key, as well as to carry out the check-out. Uptime is calculated as follows:
3.12.3 Total Minutes is the number of minutes in the calendar month. Downtime is the number of minutes within the calendar month that the Software is unavailable on our servers and systems (including Excepted Downtime). Excluded Downtime is: (a) the scheduled Downtime time of which we have given the Customer at least 24 hours’ notice, up to a maximum of 240 minutes per calendar month; and (b) any unavailability caused by circumstances beyond Hotelbird’s control, including, but not limited to, hardware or network failures not operated by us, and hacker attacks and denial of service attacks.
3.12.4 If the uptime of the Software on our servers and systems in a calendar month is below the uptime defined in clause 3.12.2, the Customer shall receive a credit in the equivalent of the following percentages on the fee for the month concerned: Uptime Credit Less than 97.5% but more than or equal to 96.5%. 5 % Less than 96.5% but greater than or equal to 95.5 10 % Less than 95.5% but greater than or equal to 94.5 15 %
3.12.5 Further claims for damages of the Customer due to defective performance are excluded, whereby the liability according to Clause 3.11 remains unaffected. The clarification in Clause 3.11.4 shall also apply in this context.
3.12.6 The parties agree on the following error classifications and response times: (a) Error class 1 – Defects preventing operation: The defect prevents business operations at the Customer. There is no workaround. We shall start eliminating the error within one working day of the error message and shall continue to do so with vigor until the error has been eliminated during normal working hours (8:00 a.m. to 5:00 p.m. on weekdays). (b) Error class 2 – Operationally obstructive errors: The error significantly ob- structs the Customer’s business operations. However, the use of the Software is possible with workarounds or with temporarily acceptable restrictions or difficulties. We will begin correcting the error within two business days and continue to do so until the error is corrected within normal working hours. We can first demonstrate a workaround solution and eliminate the error later if this is reasonable for the Customer. (c) Error class 3 – Other errors: In the case of all other errors, we shall begin to eliminate the error within one week or shall eliminate the error only with the next version of the Software if this is reasonable for the Customer.
3.12.7 In the case of update, upgrade and new version deliveries, the claims for defects shall be limited to the innovations of the update, upgrade or new version delivery compared to the previous version status.
3.12.8 The limitation period for claims for defects is twelve months.
3.13 Legal defects
3.13.1 The Software delivered or provided by us shall be free of any third party rights that may prevent its use in accordance with the contract. 3.13.2 If third parties are entitled to such rights and assert them, we shall defend the Software against the asserted rights of third parties at our expense. The Customer shall notify us in writing without delay of the assertion of such third party rights and grant all powers of attorney and authority required to defend the Software against the asserted third party rights. 3.13.3 To the extent that defects in title exist, we shall be entitled (a) at our option (i) to eliminate by lawful means the rights of third parties which impair the contractual use of the Software, or (ii) to eliminate their assertion, or (iii) to modify or replace the Software in such a way that they no longer infringe third-party rights, if and to the extent that the functionality of the Software owed is not significantly impaired thereby, and (b) to reimburse the Customer for the necessary recoverable costs of legal action incurred on the basis of the German Lawyers’ Fees Act (“RVG”, Rechtsanwaltsvergütungsgesetz).
4. PURCHASE OF HARDWARE TERMINALS
4.1 Scope of the contract
4.1.1 The Customer may purchase from us a hardware Terminal for automated check- in/out, payment and access control via key cards (“Terminal”).
4.1.2 The condition of the Terminal and the operating conditions of the Terminal result from the service description. Illustrations, advertising statements and recommendations that are merely promotional in nature do not constitute quality specifications.
4.1.3 Unless otherwise agreed, the Terminal shall be installed and commissioned by the Customer.
4.1.4 Hotelbird reserves the right to provide further services at the request of the Customer (in particular preparation for use, installation and demonstration of successful installation, instruction, training and consulting). These services are generally remunerated according to expenditure.
4.2.1 Unless otherwise agreed, the Terminal shall be delivered at the expense and risk of the Customer ex warehouse, which is also the place of performance for the delivery. If the goods are shipped, the Customer shall bear the transport risk even in the case of carriage-paid delivery. The decision on the appropriate form of shipment (transport route) lies with Hotelbird.
4.2.2 The delivery period is agreed individually or stated by us upon acceptance of the order. Binding delivery dates and deadlines must be expressly agreed in writing.
4.2.3 If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Customer of this without delay and at the same time notify the Customer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the Customer. A case of non-availability of the performance in this sense shall be deemed to be in particular the failure of our supplier to deliver on time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case. If strikes or lockouts or any other cause for which we are not responsible or an event of force majeure (collectively “disruption”) affects the delivery date, the dates shall be postponed by the duration of the disruption, including a reasonable restart phase of a maximum of two weeks.
4.2.4 The goods are insured for transportation in the amount of 5.000,00 EUR.
4.2.5 Transport damage and transport losses that have occurred must be reported immediately in the presence of the carrier and only acknowledged after they have been recorded in the carrier’s system, otherwise the delivery shall be deemed to have been approved. Later damage notifications are not permissible.
4.3 Obligations of the Customer
4.3.1 The Customer is required to pay the agreed fee for the purchase of the Terminal.
4.3.2 The Customer shall establish the necessary operating conditions for the Terminal. The required operating conditions result from the service description or other contractual provisions. In order to be able to use the Terminal, the Customer must acquire the necessary partner licenses and provide additional Software and hardware (locking systems, PMS and payment providers).
4.3.3 The Customer shall dispose the Terminal properly at its own expense after the end of use in accordance with the statutory provisions.
4.4 Warranty for defects
4.4.1 The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as im- proper assembly or defective assembly instructions), unless otherwise stipulated be- low.
4.4.2 As a matter of principle, we shall not be liable for defects of which the Customer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the Customer’s claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). The Customer must notify Hotelbird in writing of recognizable defects im- mediately, but no later than 12 days after delivery of the Terminal, and of hidden defects immediately after discovery, the latter no later than within 6 months. If the Customer fails to duly inspect and/or report defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions.
4.4.3 The warranty is limited to a period of 12 months.
4.4.4 Hotelbird does not provide any guarantees in the legal sense.
4.4.5 Subsequent performance shall include, at Hotelbird’s discretion, either rectification of defects or new delivery. The interests of the Customer shall be given due consideration in the choice. Ownership of parts replaced on the basis of subsequent performance shall pass to Hotelbird.
4.4.6 Transport costs shall in principle be borne by the Customer even in the case of justified warranty claims. For any rectification of defects, the Customer shall immediately provide all information necessary for fault diagnosis and rectification upon request.
4.4.7 Section 3.13 shall apply accordingly to defects of title concerning the Terminal.
4.5 Purchase of Software and Terminal If the Customer acquires both the Software and a Terminal, the Software and Terminal shall be acquired as individual components and not as belonging together, unless otherwise agreed individually. The Customer itself shall be responsible for installing the Software on the Terminal. Defects in the Software or the Terminal shall not entitle the Customer to assert warranty claims with regard to the respective other defect-free component.
5. CHOICE OF LAW AND PLACE OF JURISDICTION
5.1.1 The exclusive place of jurisdiction for all disputes concerning and arising from the contract is Munich. However, we also have the right to sue the contractual partner at any other place of jurisdiction applicable to him.
5.1.2 The entire contractual relationship shall be governed by the law of the Federal Republic of Germany, unless another legal system applies. The application of the Uniform Law on the International Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods is excluded.
6. PARTIAL INEFFECTIVENESS
Should individual provisions of these contractual terms and conditions be or become invalid, for whatever reason, this shall not affect the validity of the remaining provisions. Ineffective clauses shall be replaced by such clauses that come closest to what was intended between the contracting parties.
Last Changed: January 2021