1. SCOPE

1.1
The services provided by Hotelbird GmbH, Plinganserstraße 150, 81369 Munich, Germany (hereinafter “Hotelbird”, “we” or “us” etc.) to hotels (hereinafter “Orderer”; Hotelbird and Orderer hereinafter also individually a “Party” and jointly the “Parties”) are based on these General Terms and Conditions (hereinafter also “GTC Hotel”). The Orderer is considered a business within the meaning of section 14 German Civil Code (Bürgerliches Gesetzbuch).

1.2
These GTC Hotel apply in particular to agreements on (i) the temporary provision of standard software from Hotelbird to the Orderer (see Section 3) and (ii) the purchase of hardware terminals. Hotelbird offers both software that Hotelbird provides to the Orderer for a fee (hereinafter “Paid Software”) and software that Hotelbird provides to the Orderer free of charge (hereinafter “Freeware” and, together with the Paid Software, “Software”).

1.3
These GTC Hotel apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Orderer shall only be binding if and insofar as we have expressly acknowledged their validity in writing (Textform). Individual agreements made with the Orderer in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these GTC Hotel. Subject to proof to the contrary, an agreement or our confirmation in writing (Textform) shall be decisive for the content of such agreements.

1.4
Unless otherwise agreed, the GTC Hotel apply in the version valid at the time of the Orderer’s order, in any case in the version last communicated to the Orderer, and shall also apply as a framework agreement for all similar future transactions between the Orderer and Hotelbird, without Hotelbird having to refer to the application of these GTC Hotel in each individual case.

1.5
References to the application of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are expressly excluded in these GTC Hotel or the GTC Hotel directly deviate from them.

2. CONCLUSION OF THE AGREEMENT

2.1
General

2.1.1
Unless otherwise stated in the offer, Hotelbird’s offers are subject to possible modifications and non-binding. This also applies if we have provided the Orderer with product descriptions or documents – also in electronic form.

2.1.2
The order of producty by the Orderer shall be deemed to be a binding contractual offer.

2.2
Conclusion of the Agreement for the Provision of Paid Software or the Purchase of Hardware Terminals

2.2.1
Orders for the provision of Paid Software and/or the purchase of hardware terminals are placed by the Orderer by declaration (verbally or in writing [Textform]) to Hotelbird.

2.2.2
The Orderer is bound to its order for two weeks after receipt of the order by Hotelbird. The agreement is concluded when Hotelbird accepts the order by means of an order confirmation.

2.3
Conclusion of the Agreement for the Provision of Freeware

2.3.1
The Orderer places orders for the provision of Freeware by registering on the Hotelbird website (https://my.hotelbird.de/register) or another website or in an app for the use of the Freeware. By registering, the Orderer agrees to the validity of these GTC Hotel.

2.3.2
As a rule, we accept orders for Freeware by sending an activation code to the Orderer or by activating the Freeware for the Orderer or by sending a confirmation e-mail.

3. LICENSING OF THE SOFTWARE

3.1
Subject Matter of the Agreement

3.1.1
The exact scope of the subject matter of the agreement results

a. for the provision of Paid Software: from the service description in the Hotelbird offer;
b. for the provision of Freeware: from the functional description provided as part of the order.

3.1.2
The subject matter of the agreement is

a. for the provision of Paid Software: the provision of the Paid Software for the use of the functionalities listed in the service description, the granting of rights of use to the Paid Software, support with system setup, interface integration, consulting services, development services, support, project management and training (hereinafter “Professional Services”), as well as the provision of other accompanying services, as described in the agreement between the Parties, against payment of the agreed fee in each case;

b. for the provision of Freeware: The provision of Freeware free of charge for the use of the functionalities listed in the functional description as well as the granting or procurement of rights of use to the Freeware.

3.1.3
If the subject matter of the agreement is the provision of Paid Software or Freeware for the execution of the checkin/checkout (hereinafter “Checkin-Freeware”), the Orderer shall provide Hotelbird with a compatible partner system. This does not apply if a check-in/check-out without a compatible partner system is agreed in the functional description. The Orderer may integrate the Paid Software into the property management system (hereinafter “PMS”) used by it. The Orderer shall independently procure and implement the necessary software modules for data exchange with the PMS used and for carrying out the check-in/check-out.

3.1.4
Insofar as it is agreed in the case of the Checkin-Freeware that it is used together with a booking platform, an agreement with the platform operator is a requirement for the use. In this case, Hotelbird provides an interface to the booking platform and the Orderer instructs Hotelbird to retrieve the data of the Orderer’s customers (hereinafter “Guests”) from the PMS via the interface, to check via the booking platform whether the Guests have booked via the booking platform and to inform the Guests via the booking platform about the possibility of online check-in. The Orderer also instructs Hotelbird to transmit a successful check-in and check-out to the PMS.

3.1.5
If the Orderer has ordered an interface to the locking system, the delivery, installation or operation of the locking system hardware, such as in particular the locking terminals and the hotel management system associated with the locking terminals (hereinafter collectively referred to as the “Hardware”) is not subject of the agreement. The Orderer shall procure and implement the Hardware required for the use of the Software in productive operation under its own responsibility. The existence and enforceability of the agreement are independent of the procurement of the Hardware by the Orderer. This shall also apply if we have arranged contact with hardware suppliers.

3.1.6
If the Orderer has further questions regarding the operation of the Software or requires assistance with technical problems, it may contact Hotelbird’s fee-based support. Warranty claims of the Orderer remain unaffected.

3.2
Term of the Agreement, Termination

3.2.1
If the subject of the agreement is the Paid Software, the following shall apply for the term of the agreement:

a. The term agreed in the agreement applies. The agreement is extended by a further 12-months-period in each case if it is not terminated at least three months before the end of the current term of the agreement.

b. If the Parties have not specified a term, the contractual relationship shall commence upon its conclusion and shall be concluded for an indefinite period. In this case, the contractual relationship can be terminated by either Party in writing with a notice period of 3 months being effective at the end of a calendar year, but not before the end of the calendar year following the calendar year, in which the agreement was concluded.

c. Notwithstanding the foregoing, the Parties may terminate the agreement for cause without notice (außerordentliche Kündigung), Hotelbird in particular if the Orderer is in default of payment of the fee for Paid Software for two consecutive billing cycles. In this case, Hotelbird may additionally demand damages due immediately in one lump sum in the amount of one quarter of the remaining fees until the end of the regular term of the agreement. The Orderer reserves the right to prove that no damage or only significantly less damage has been incurred. Any claim for damages by Hotelbird in excess of the lump-sum damages shall remain unaffected.

3.2.2
If subject of the agreement is the provision of Freeware, the agreement is concluded for an indefinite period, unless the Parties have agreed otherwise. The agreement may be terminated by either Party at any time with three months’ notice being effective at the end of a month.

3.2.3
The Orderer may switch from an agreement for Freeware to an agreement for Paid Software at any time without a notice period. The agreement for the Paid Software is governed by Section 2.2. The agreement on the Freeware ends automatically when the agreement for the Paid Software comes into effect, unless the Parties explicitly agree otherwise.

3.3
Services and Provision

3.3.1
Hotelbird provides the Software to the Orderer for the productive use by the Orderer for its own business purposes. The Orderer is familiar with the Software and has tested it for functionality and use for its own business purposes. The Software is provided as is at the time of the conclusion of the agreement. Hotelbird is under no obligation to further develop the Software, unless otherwise agreed between the Parties in writing (Textform). However, Hotelbird is entitled to further develop the Software at its own discretion, provided that this does not impair or remove any essential functions of the Software.

3.3.2
If the Parties agree on an installation of the Software by Hotelbird, the Orderer shall obtain the Software in the version current at the time of the conclusion of the agreement for use in accordance with the following provisions from the agreed date (hereinafter “Installation Date”) on the data processing systems 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 Orderer itself. The Orderer shall obtain 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.

3.3.4
If agreed in writing (Textform), we shall instruct the personnel designated by the Orderer in the use of the Software. The location, type, scope and costs of the instruction shall be specified in the order or shall be agreed separately by the Parties.

3.3.5
Hotelbird provides the Orderer with an open interface (hereinafter “Open API”), which enables the Orderer to integrate functionalities of the Software into its own software (hereinafter “Orderer Software”). At the request of the Orderer, Hotelbird may support the Orderer in the integration of the Open API for a separate fee. The scope and costs of the support services are set out in the order or are provided by the Parties in a separate agreement.

3.3.6
The agreed system requirements and any necessary interfaces for the connection of the PMS, the locking system and any other third-party software on the part of the Orderer are set out in the specifications provided by Hotelbird and must be established by the Orderer at least four weeks prior to the Installation Date (hereinafter “System Readiness”). Hotelbird must be notified in writing (Textform) of the establishment of the System Readiness. We are not responsible for the compatibility of our Software with the Hardware provided by the Orderer, unless the Hardware corresponds to the specifications provided by us or we have expressly guaranteed compatibility in writing (Textform).

3.3.7
Unless otherwise agreed in writing (Textform), the Orderer shall carry out the necessary configuration. Subsequently, Hotelbird will activate the use of the agreed services, provided that the necessary interfaces to the PMS, the locking system and any other third-party software have been provided by the Orderer. If adjustments to the Orderer’s configuration are subsequently necessary, Hotelbird shall support the Orderer in this – insofar as the subject of the agreement is the provision of Paid Software. In case of Freeware, the Orderer can find configuration assistance on the helpdesk page provided by Hotelbird at https://my.hotelbird.de/helpcenter.

3.3.8
The Orderer shall provide Hotelbird with the specific content and settings required for the operation of the Software, in particular logos, images and address data of the hotel.

3.4
Payment Processing

3.4.1
Hotelbird has integrated payment systems into the Paid Software via a payment service provider (hereinafter “Payment Service Provider”). The services of the Payment Service Provider allow Guests to choose from various payment systems/methods. No direct agreement is concluded between the Orderer and the Payment Service Provider for the payment processing service; rather, the Payment Service Provider is commissioned by Hotelbird as a subcontractor. Notwithstanding this, productive use of the Paid Software requires that the Orderer successfully completes the Payment Service Provider’s onboarding process after installing the Paid Software and concludes a separate agreement with the Payment Service Provider on the basis of the Payment Service Provider’s general terms and conditions. During the onboarding process, the Orderer must provide information about its company for the purposes of identity checks and verification in accordance with anti money laundering and other regulations.

3.4.2
Payment processing for the Software can only be carried out via the Payment Service Provider in accordance with Section 3.4.1 unless the Parties have agreed otherwise. As far as the Parties agree that the Orderer can integrate its own contractually agreed payment service provider via an interface, the provisions on the Orderer Software shall apply to the integration of this own payment service provider, in particular the provisions under Sections 3.3.5, 3.3.6 and 3.3.7.

3.4.3
Hotelbird is entitled to change the Payment Service Provider. In this case, the Orderer shall take all actions and make all declarations necessary to implement the change. In the event of a change of Payment Service Provider, the Orderer shall not have a right to terminate for cause, unless the new Payment Service Provider is used under conditions that differ significantly to the disadvantage of the Orderer from the conditions of the previous Payment Service Provider and an agreement on a change to a separate Payment Service Provider is not reached.

3.4.4
Hotelbird may provide the Payment Service Provider with personal data that is necessary for the payment processing. In all other respects, the provisions in Section 3.13 apply.

3.4.5
The Orderer undertakes not to offer or sell any goods or services that violate the law or are included on any existing list of prohibited or restricted goods and services of the Payment Service Provider. Hotelbird shall provide the Orderer with such a list of the Payment Service Provider upon conclusion of the agreement and subsequently upon request.

3.4.6
If the Payment Service Provider reports violations by the Orderer of its or our general terms and conditions, Hotelbird is entitled to take necessary measures at its reasonable discretion, in particular the removal of certain payment methods and the reversal of transactions. Violations by the Orderer of the general terms and conditions of the Payment Service Provider shall otherwise be deemed to be violations of these GTC Hotel.

3.5
Obligations of the Orderer, Indemnification

3.5.1
The Orderer shall provide the necessary infrastructure on its data processing systems, in particular the necessary storage space set out in the specifications, and shall ensure that the system requirements, necessary interfaces and licenses to its information technology systems, including its hotel management system and locking system, which may be necessary for the use of the Software and the connection with it, are available. The Orderer shall conclude the necessary usage agreements for the interfaces with third-party systems at its own expense. In particular, it must ensure that the latest version of the PMS to be connected is made available for productive use. The Orderer shall carry out the updates provided for by the manufacturer of the PMS.

3.5.2
The Orderer itself is responsible for the hardware and software operated by it and the provision of interfaces for connecting the PMS, the locking system and any other third-party software, in particular also for the connection of the Software to the Orderer Software via interfaces, in particular also the connection of the Orderer Software via the Open API. As far as license fees or other costs are incurred for the provision of an interface for a specific Orderer Software, which the provider of the corresponding Orderer Software charges to Hotelbird, the Orderer shall reimburse Hotelbird for these costs. If the Orderer requires support in connecting the Orderer Software via the Open API, Hotelbird may, upon request, support the Orderer in the integration of the Open API against payment. With regard to the remuneration for such support services Section 3.3.5 applies accordingly. The Software and the data generated by the Software shall be backed up by the Orderer with the diligence of a prudent businessman on a regular basis, at least every calendar day. In particular, it shall carry out 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 must be stored in such a way that the backed-up data can be restored at any time. The Orderer is solely responsible for compliance with retention periods under commercial and tax law. Hotelbird is not obliged to additionally secure data that the Orderer processes in the Software and to provide backup solutions.

3.5.3
The Orderer shall take reasonable measures to protect the Software and, if applicable, the access data from access by unauthorized third parties. In particular, all copies of the Software and the access data must be stored in a protected location.

3.5.4
The Orderer shall indemnify Hotelbird against all claims of third parties due to violations of applicable law, specifications and regulations of credit card companies (e.g. Mastercard, VISA), so-called “Scheme Rules”, and shall reimburse Hotelbird for the reasonable costs of a legal defense.

3.6
Rights of Use

3.6.1
The Orderer grants us a non-exclusive, sublicensable right of use, limited to the duration of this agreement, to use the content that the Orderer processes with the Software or transmits to Hotelbird, regardless of whether it is subject to a intellectual property right, in particular to copyrighted content and trademarks (hereinafter “Orderer Content”), for the use of the Orderer Content within the Software by us, including the right to carry out the necessary acts of reproduction and distribution and, insofar as this corresponds to the agreed function of the Software, the right to make it publicly available, in particular also if the Orderer uses the Software as a white label solution under its own brand and provides the corresponding and necessary content for this purpose.

3.6.2
The Orderer obtains the non-exclusive, non-sublicensable and non-transferable right, limited to the term of this agreement, to use the Software as designated and to make it available to the Orderer’s employees and Guests for their designated use.

3.6.3
The Orderer may not use the Software for purposes other than those specified in these GTC Hotel and must protect the Software from unauthorized access by third parties. Without limiting the generality of the foregoing, the Orderer is in particular not entitled (i) to use the Software or parts thereof for purposes other than for the processing of its own data, (ii) to distribute, sell, resell, lease, rent, lend or otherwise transfer, sublicense or lease the Software or parts thereof to third parties without the prior written consent of Hotelbird, rent, lend or otherwise transfer, sublicense or assign rights thereto, (iii) disclose or make available the Software or parts thereof to third parties or allow access in any way to persons other than its employees and Guests of the Orderer, (iv) modify, supplement, change or adapt the Software, (v) reverse engineer, decompile, translate the Software or any part thereof, disassemble or disassemble data formats that are part of the Software and/or otherwise attempt to obtain the source code of the Software or any part thereof (except as permitted under Section 3.6.4); (vi) make copies of the Software or any part thereof, except to the extent necessary to use the Software in accordance with the agreement; (vii) use the Software to develop a competing product or service; (viii) disable any license management system or security mechanism provided with the Software, (ix) access or use the Software to provide data processing or batch processing services to others, or (x) remove, alter or conceal any proprietary or copyright notices, trademarks or other marks of Hotelbird or third party rights holders. The right of the Orderer to connect Orderer Software via the Open API pursuant to Section 3.3.5 shall remain unaffected, provided, however, that the Orderer is explicitly prohibited from (i) from modifying the Software itself or interfering with it in any other way and (ii) from distributing, selling, reselling, leasing, renting, lending or otherwise transfering, sublicensing or assigning rights to or making available to third parties or granting them access to or, unless necessary for the Orderer’s own intended use, reproducing the Orderer Software as fas as it contains functionalities of the Software via the Open API.

3.6.4
The statutory rights of the Orderer pursuant to section 69d (2) and (3) and section 69e German Copyright Act (Urhebergesetz) remain unaffected, provided, however, that (i) any decompilation of the Software pursuant to section 69e German Copyright Act may only take place after prior written request to Hotelbird in which the Orderer requests the necessary information and Hotelbird does not provide the necessary information within two weeks, and (ii) the Parties enter into an appropriate confidentiality agreement which ensures the protection of the Software and the source code from access by third parties.

3.6.5
If we make new versions, updates, upgrades or other new deliveries with regard to the Software during the term of the agreement, the above rights shall also apply to these.

3.6.6
Hotelbird is entitled to use the Orderer Content for its own purposes, in particular for analysis purposes and to improve the service. Insofar as personal data is concerned, Hotelbird will comply with data protection regulations; data protection agreements between the Parties remain unaffected. Should further data protection agreements be necessary, the Orderer is obliged to conclude these with Hotelbird, provided that statutory data protection regulations are complied with, the agreement does not cause the Orderer any costs and is not unreasonable for the Orderer for other reasons.

3.6.7
The Orderer is responsible for the Orderer Content in accordance with the following provisions:

a. The Orderer must ensure that the Orderer Content does not violate or impair any statutory provisions and/or third-party rights, in particular the intellectual property of third parties, their personal rights, competition law or data protection regulations.

b. Should the Orderer violate the obligations under a., Hotelbird is entitled to demand that the Orderer no longer processes infringing content with the Software and deletes infringing conent. To the extent necessary, Hotelbird is entitled to delete the infringing Orderer Content without prior notice. Furthermore, the Orderer shall indemnify Hotelbird against any third-party claims arising from the infringement, reimburse Hotelbird for reasonable legal defense costs and provide Hotelbird with all information, documents and declarations necessary for the legal defense.

3.7
Fee, Due Date and Price Adjustment

3.7.1
The Orderer shall owe the agreed fee for the provision of the Paid Software as well as transaction-based fees for the use of the payment system (within the meaning of Section 3.4.1) and, if applicable, any costs for interfaces to the Orderer Software (within the meaning of Section 3.5.2). The Orderer shall not owe any remuneration for the provision of Freeware.

3.7.2
If a monthly payment cycle has been agreed, the fee is due monthly in advance from the beginning of the term of this agreement.

3.7.3
If an annual payment cycle has been agreed, the fee is due in advance for the current year on a pro rata basis at the beginning of the term of this agreement. Thereafter, the fee is due for payment in advance, at the latest on the 25th of the last month of the previous year, unless otherwise agreed.

3.7.4
Fees for the use of the payment system (within the meaning of Section 3.4.1) shall be offset against payments made by the Guest that are credited to the Orderer, or refunds/chargebacks shall be invoiced. The Orderer agrees that the fees may be retained by the Payment Service Provider.

3.7.5
The Orderer shall owe the agreed fee for the agreed professional services and other agreed services. The fee is due upon conclusion of the agreement.

3.7.6
The Parties may agree on the provision of services outside the agreed scope of services or subject matter of this agreement, which shall be remunerated separately by the Orderer. The scope and costs of the provision of further services shall result from the order or shall be regulated by the Parties in a separate agreement.

3.7.7
Services are invoiced at the end of the month according to time and materials used. Hotelbird shall inform the Orderer of the specific services rendered. Payment is due two weeks after the invoice has been sent.

3.7.8
Unless otherwise agreed, we shall be entitled to reimbursement of the outlays and expenses required for the provision of the services, in particular travel costs and expenses, in addition to the remuneration.

3.7.9
All prices are net, i.e. excluding any applicable VAT.

3.7.10
If the agreement ends prematurely for a reason for which the Orderer is responsible, Hotelbird shall be entitled to remuneration corresponding to the services it has provided up to the termination of this agreement.

3.7.11
If the agreed fee is based on booking transactions or the creation of keys in the system, the number determined in the system shall be deemed to be correct unless one Party provides evidence to the contrary that it is incorrect.

3.7.12
The Orderer may only offset undisputed or legally established claims.

3.7.13
Hotelbird may charge the agreed fees and charges for the use of the integrated payment system of the Payment Service Provider in accordance with Section 3.4.1 to the extent that the Payment Service Provider adjusts its fees. This applies to increases and reductions. An increase may not exceed the additional costs for Hotelbird. Price adjustments shall take effect at the earliest two months after notification of the price adjustment, including notification of the date of change in text form. Insofar as a price increase affects an individual payment method, the Orderer may have this deactivated by Hotelbird by means of notification in text form.

3.8
Integration of Third-party Offers / Affiliate Programs

3.8.1
We are entitled to integrate third-party services and/or apps (hereinafter referred to in its entirety or in each case as “Third-party Services”) into our Software. The integration of Third-party Services means in particular the integration of apps or offers that can be called up and activated directly from our Software or that can be integrated into our Software as independent applications by framing, for example.

3.8.2
The integration of Third-party Services into the Software can also take place subsequently (in particular after conclusion of the agreement). We are entitled, at any time and at our sole discretion and without any obligation to the Orderer, to remove the integration of Third-party Services, provided that this does not restrict contractually agreed functions.

3.8.3
We only establish the connection to Third-party Services. It is not part of our contractual obligations to make the Third-party Services available. We are therefore not responsible for their content.

3.8.4
If we integrate Third-party Services, in particular within the framework of third-party affiliate programs, and the Orderer participates in the proceeds from the respective affiliate program, we do so, unless otherwise agreed in text form, without legal obligation and we reserve the right to modify or terminate the integration and/or the agreement on participation at any time.

3.9
We collect usage data that is collected and/or processed through the integration of Third-party Services into our Software always ourselves as a controller (Art. 4 No 7 GDPR), even if we operate the Software as a processor (Art. 4 No 8 GDPR) for the Orderer. The Orderer is obliged to provie information about this in its data privacy policy for the use of the Software or in another suitable manner. We shall provide the Orderer with the necessary information on request.

3.10
Reference Citation

Upon conclusion of the agreement, we are entitled to publish the name and logo of the Orderer as a reference, taking into account the confidentiality regulations (Section 3.12) and data protection (Section 3.13). The name may be mentioned in particular on the Internet, in printed marketing material, at trade fairs and congresses or in presentations and pitches.

3.11
Contact with the Guest

The Orderer agrees that Hotelbird may contact the Orderer’s Guests directly. Hotelbird will comply with all data protection regulations.

3.12
Confidentiality

3.12.1
Each Party (“Receiving Party”) undertakes to treat Confidential Information of the other Party (hereinafter “Disclosing Party”) as strictly confidential. “Confidential Information” is information of which the Receiving Party becomes aware in connection with the performance of the agreement, regardless of the type of communication (oral, written), and (i) which has a commercial value, (ii) if there is a legitimate interest in its confidentiality and (iii) which is either marked as confidential by the Disclosing Party in its reasonable discretion or where a legitimate interest of the Disclosing Party in confidentiality arises either from the nature of the information or disclosure. This includes, as far as as the above requirements are met, in particular the following information of the Disclosing Party: business and trade secrets, know-how, technical data, the Software (including source code), specifications, data sheets, technical reports, marketing and sales methods, designs, strategies, technologies, identity of and information on employees, Orderers, suppliers and business partners, personal data of any natural person who is in an employment relationship with the Disclosing Party.

3.12.2
The Receiving Party is obliged to (i) keep all Confidential Information strictly confidential, treat it as strictly confidential and use it exclusively in connection with the performance of the agreement, (ii) disclose confidential information only to persons employed by or working for the Receiving Party who need to know such information in order to fulfill their obligations under the agreement, provided that they are subject to confidentiality obligations in accordance with this Section 3.12 and (iii) take reasonable measures to protect the Confidential Information and to prevent disclosure, unauthorized access to and use of the Confidential Information; without limiting the foregoing, the Receiving Party shall take at least the same measures that it takes to protect its own Confidential Information of a similar nature, but no less than generally reasonable measures to exercise due care.

3.12.3
The above confidentiality obligations shall not apply if and to the extent that the Receiving Party proves that (i) the information was already public knowledge at the time of receipt or became public knowledge after the time of receipt through no fault of its own, (ii) was already known to the Receiving Party at the time of receipt, (iii) was lawfully made available to it by a third party, (iv) the Disclosing Party has consented to the disclosure, (v) the recipient of the Confidential Information is under an appropriate statutory obligation of confidentiality, or (vi) the Receiving Party is obliged to disclose Confidential Information in the context of legal proceedings or other official proceedings. In the latter case, the Receiving Party must inform the Disclosing Party immediately and assist in preventing or restricting disclosure to the extent permitted by law.

3.12.4
The Receiving Party shall return the Confidential Information of the Disclosing Party to the Disclosing Party upon request, but at the latest after termination of the agreement without being asked, with written confirmation that no Confidential Information will be retained, unless the Disclosing Party has expressly permitted further use. All files or other types of storage shall be permanently deleted, provided however that copies required for documentation purposes and information on the regular data backup are not covered by this. These shall continue to be subject to confidentiality.

3.12.5
The confidentiality obligation does not end upon termination of the agreement, but remains in force for as long as the confidential information remains confidential, i.e. in particular as long as it is not publicly accessible.

3.12.6
Data protection regulations remain unaffected.

3.13
Data Protection and Data Security

3.13.1
The Parties shall comply with the applicable data protection regulations. The Orderer, as controller, is responsible for collecting and/or processing and/or using the personal data in its business operations in accordance with the applicable data protection law. The Orderer shall indemnify Hotelbird against any claims brought against Hotelbird by data subjects in connection with the collection, processing or use of personal data by the Orderer.

3.13.2
In accordance with Art. 28 GDPR, the Parties conclude the agreement attached to this agreement as an annex “Data Processing Agreement”. In the event of contradictions between these GTC Hotel and the Data Processing Agreement, the provisions of the Data Processing Agreement shall take precedence. The Parties assume that in the case of the Checkin-Freeware, the data will be transmitted by the PMS, whose provider is also the Orderer’s processor, to Hotelbird as a further processor and that this applies accordingly to the retransmission. Furthermore, the Parties assume that in this case a further transmission will be made by the booking platform, whose operator is an independent controller. The Parties assume that there is no joint controllership within the meaning of Art. 26 GDPR. Should another contractual agreement on data protection become necessary between the Parties, the Parties undertake to conclude an agreement that meets the legal requirements.

3.13.3
The Orderer shall take the necessary precautions to prevent the use of the Software by unauthorized persons. The Orderer shall take the technical and organizational measures necessary to (i) prevent unauthorized persons from gaining access to the data processing systems with which the Software is operated, (ii) prevent these data processing systems and the Software from being used by unauthorized persons, (iii) ensure that those authorized to use the Software and the data processing equipment can only access the data subject to their access authorization, (iv) to ensure that the Software and the data generated by the Software cannot be read, copied, modified or removed without authorization, (v) to ensure that the data is protected against accidental destruction or loss.

3.14
Liability

3.14.1
If the subject matter of the agreement is the provision of Paid Software, Hotelbird’s liability for damages and expenses shall be governed by the following provisions:

a. Hotelbird shall be liable to the Orderer without limitation for all damages caused by Hotelbird (including its legal representatives or vicarious agents) in the event of intent or gross negligence.

b. Furthermore, Hotelbird shall be liable to the Orderer without limitation in the event of slight negligence in the event of injury to life, limb or health. Otherwise, Hotelbird shall only be liable for slight negligence insofar as Hotelbird has breached a essential contractual obligation (cardinal obligation – Kardinalpflicht). An obligation is essential if its fulfillment makes the proper execution of the agreement possible in the first place, if its breach jeopardizes the achievement of the purpose of the agreement and if the Orderer regularly relies on its compliance. In such cases, liability is limited to compensation for foreseeable, typically occurring damage.

c. Liability under the Product Liability Act remains unaffected.

d. For the avoidance of doubt and without limiting or derogating from the foregoing liability provisions to the detriment of the Orderer: We shall not be liable for system failures of third parties, the conduct of third parties or the performance of third parties whose services we do not use to fulfill our obligations to the Orderer. These are in particular the providers or operators of PMS, locking system suppliers, third-party providers within the meaning of Section 3.8 (e.g. providers of apps that are integrated into the Software) or “Orderer Reservation Systems”.

3.14.2
If the subject matter of the agreement is the provision of Freeware, Hotelbird shall only be liable in accordance with the statutory provisions in the event of intent and gross negligence or if Hotelbird has fraudulently concealed a defect (sections 599, 600 German Civil Code).

3.14.3
The limitations of liability set out in Section 3.14. also apply in the event of breaches of duty by or in favor of persons for whose fault Hotelbird is responsible in accordance with statutory provisions.

3.15
Availability, Error Classes and Response Times, Warranty

3.15.1
If the subject of the agreement is the provision of Paid Software, the availability, error classes and response times as well as warranties shall be governed by the following provisions:

a. We warrant that the Software will be available for use by the Orderer during the term of this agreement in accordance with the service specifications and in accordance with applicable law. However, we do not warrant or represent that the Software will meet the Orderer’s business requirements or that the Software will operate error-free and uninterrupted at all times.

b. We owe an availability of 97.5% for the Software on our servers and systems in each calendar month. Availability means that Guests are able to check in to the Orderer’s hotel via the Software, receive the electronic key and check out. The availability time does not include downtimes caused by (i) announced maintenance work according to d., (ii) unforeseeable, urgent maintenance work, e.g. to eliminate security gaps, (iii) force majeure or other events beyond Hotelbird’s control which were not foreseeable and could not be prevented by Hotelbird, (iv) third parties who are not vicarious agents (Erfüllungsgehilfen) of Hotelbird, (v) the Orderer or the Software or Hardware used by the Orderer or its internet connection.

c.Availability is calculated according to the following formula:

(maximum availability – downtime) x 100
maximum availability

d. Hotelbird is entitled to carry out regular maintenance work, but shall attempt to keep interruptions to a minimum. Hotelbird shall inform the Orderer at least one week prior to commencement of the work. In urgent cases, for example to eliminate security vulnerabilities, Hotelbird may shorten the notice period or, if not otherwise possible, commence maintenance work without prior notice. If prior notice is not possible, the Orderer must be informed immediately after commencement of the work.

e. If the availability of the Software on our servers and systems in a calendar month is below the availability defined in Section 3.15.1b, the Orderer shall receive a credit note equivalent to the following percentages of the fee for the month in question:

AVAILABILITY	CREDIT
Less than 97.5 %, but more than or equal to 96.5 %	5 %
Less than 96.5 %, but more than or equal to 95.5 %	10%
Less than 95.5 %, but more than or equal to 94.5 %	15 %

f. Further claims for damages on the part of the Orderer due to defective performance are excluded, whereby liability in accordance with Section 3.14 remains unaffected. The clarification set out in Section 3.14.1d also applies in this context.

g. The contractual partners agree the following error classes and response times:

aa. Fault class 1 – faults that prevent operation:

An error prevents the Orderer from doing business. There is no workaround solution. We shall begin to rectify the error within one working day of the error being reported and shall continue to do so with vigor until the error is rectified during normal working hours (8.00 a.m. to 5.00 p.m. on working days).

bb. Fault class 2 – faults that hinder operation:

An error significantly prevents the Orderer’s business operations. However, the use of the Software is possible with workaround solutions or with temporarily acceptable restrictions or difficulties. We will begin to rectify the error within two working days and will continue to do so until the error has been rectified within normal working hours. We can initially demonstrate a workaround solution and eliminate the error later if this is reasonable for the Orderer.

cc. Error class 3 – Other errors:

In the case of all other errors, we shall begin to rectify the error within one week or shall only rectify the error with the next version of the Software if this is reasonable for the Orderer.

h. If a defect is remedied by an update, an upgrade or a new version delivery, Hotelbird is no longer responsible for defects in older versions from the time the new version is made available.

3.15.2
As far as Hotelbird provides the Software for rent, strict liability for damages that already existed when the Software was provided (section 536a para. 1 German Civil Code) and the right of the Orderer to remedy defects itself are excluded (section 536a para. 2 German Civil Code).

3.15.3
The statute of limitation for warranty claims is twelve months.

3.16
Defects of Title

3.16.1
The Software supplied or provided by us is free of third-party rights that would prevent it from being used in accordance with the agreement.

3.16.2
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 Orderer shall inform us immediately in writing of the assertion of such third-party rights and shall grant us all powers and authorizations necessary to defend the Software against the asserted third-party rights.

3.16.3
If there are defects of title, we are (a) entitled, at our discretion, (i) to take lawful measures to eliminate the rights of third parties that 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 this does not significantly impair the owed functionality of the Software, and (b) to reimburse the necessary reimbursable costs of legal action incurred by the Orderer on the basis of the German Lawyers’ Fees Act (Rechtsanwaltsvergütungsgesetz).

4. PURCHASE OF HARDWARE TERMINALS

4.1
Subject Matter of the Agreement

4.1.1
The Orderer can purchase hardware terminals for automated check-in/out, payment and access control via key cards from us (each or together “Terminal”). If the Orderer uses point of sale “POS” functions via the Payment Service Provider in accordance with Section 3.4.1 a Terminal for payment processing (hereinafter “Payment Terminal”) must be ordered via Hotelbird.

4.1.2
The quality of the Terminal and the operating conditions of the Terminal are set out in the service description (available at https://hotelbird.com/loesung/self-service-terminal/). Illustrations, advertising statements and recommendations that are merely promotional in nature do not constitute quality specifications. Available Terminals, the prices and functionalities and operating conditions.

4.1.3
Unless otherwise agreed, the Terminal shall be installed and put into operation by the Orderer.

4.1.4
Upon agreement of the Parties, Hotelbird shall provide further services (in particular preparation for use, installation and demonstration of successful installation, instruction, training and consulting), which shall be remunerated on a time and material basis, unless otherwise agreed. The Parties shall agree the details of the provision of further services and the remuneration in the order or by separate agreement.

4.2
Delivery

4.2.1
Unless otherwise agreed, the Terminal shall be delivered at the expense and risk of the Orderer ex warehouse, which is also the place of performance for the delivery. If Terminals are shipped at the Orderer’s request, the Orderer shall bear the transportation risk even in the case of carriage paid delivery. Hotelbird shall decide on the appropriate form of shipment (transportation route).

4.2.2
The delivery time shall be agreed individually or specified by us upon acceptance of the order. Binding delivery dates and terms must be expressly agreed in writing.

4.2.3
If we are unable to meet binding delivery time for reasons for which we are not responsible (non-availability of the service), we shall inform the Orderer of this immediately and at the same time inform the Orderer of the expected new delivery time. If the service is also not available within the new delivery time, we are entitled to withdraw from the agreement in whole or in part; we will immediately reimburse any consideration already provided by the Orderer. A case of non-availability of the service in this sense is in particular the non-timely self-delivery by our supplier if we have concluded a congruent hedging transaction (Deckungsgeschäft), neither we nor our supplier are at fault or we are not obliged to deliver in the individual case. If strikes or lockouts or another 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
Terminals are insured for transportation in the amount of EUR 5,000.00.

4.2.5
Transport damage and transport losses must be reported immediately in the presence of the shipper and will only be acknowledged after they have been recorded in the shipping system, otherwise the delivery shall be deemed to have been approved. Later damage reports are not admissible.

4.3
Obligations of the Orderer

4.3.1
The Orderer shall owe the agreed fee for the purchase of the Terminal.

4.3.2
The Orderer shall establish the necessary operating conditions for the Terminal. The required operating conditions result from the service description or other agreements. In order to be able to use the Terminal, the Orderer might have to acquire the necessary partner licenses and provide additional software and Hardware (locking systems and PMS).

4.3.3
The Orderer is obliged to properly dispose of the Terminal after termination of use at its own expense in accordance with the statutory provisions. Notwithstanding sentence 1, Payment Terminals shall be sent to Hotelbird or, if agreed, to the Payment Service Provider for disposal after termination of the agreement.

4.4
Liability

The provisions of Sections 3.14.1 and 3.14.3 apply accordingly to Hotelbird’s liability.

4.5
Warranty for Defects

4.5.1
Unless otherwise specified below, the statutory provisions shall apply to the Orderer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions).

4.5.2
We shall not be liable for defects of which the Orderer is aware or is grossly negligent in not being aware when the agreement is concluded (section 442 German Civil Code). Furthermore, the Orderer’s claims for defects presuppose that it has complied with its statutory duties of inspection and notification of defects (sections 377, 381 German Commercial Code – Handelsgesetzbuch). The Orderer must notify Hotelbird in writing of recognizable defects immediately, but no later than 12 days after delivery of the Terminal, and of hidden material defects immediately after discovery. If the Orderer fails to carry out the proper inspection 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.

4.5.3
The warranty is limited to a period of 12 months.

4.5.4
Hotelbird does not grant any guarantees in a legal sense.

4.5.5
Subsequent performance shall include, at Hotelbird’s discretion, either rectification or replacement. The interests of the Orderer shall be given due consideration in the choice. Ownership of parts that are replaced as a result of subsequent performance shall pass to Hotelbird.

4.5.6
Transportation costs shall be borne by the Orderer, even in the case of justified warranty claims. For any rectification of defects, the Orderer must immediately provide all information necessary for fault diagnosis and rectification upon request.

4.5.7
Section 3.16 shall apply accordingly to defects of title concerning the Terminal.

4.6
Provision of Software and Terminal

If the Orderer acquires both rights of use to Software and a Terminal, the right of use to the Software and the Terminal are acquired as individual components and not as belonging together, unless otherwise agreed individually. The Orderer is responsible for installing the Software on the Terminal. Defects in the Software or the Terminal do not entitle the Orderer to assert warranty claims with regard to the other defect-free component.

5. CHOICE OF LAW AND JURISDICTION

5.1
The exclusive place of jurisdiction for all disputes concerning and arising from the agreement is Munich. However, we also have the right to sue the Orderer at any other place of jurisdiction applicable to the Orderer.

5.2
These GTC Hotel and the contractual relationship between Hotelbird and the Orderer shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, and to the exclusion of private international law.

6. PARTIAL INEFFECTIVENESS

Should individual provisions of these GTC Hotel, for whatever reason, be or become invalid or unenforceable in whole or in part, or should a necessary provision not be included, the validity and enforceability of the remaining provisions of these GTC Hotel shall remain unaffected. In place of the invalid or unenforceable provision or to fill the loophole, a legally permissible provision shall apply that corresponds as closely as possible to what the Parties intended or would have agreed in accordance with the meaning and purpose of these GTC Hotel if they had recognized the invalidity or loophole.