OF THE HOTELKIT GMBH FOR THE INTRANET SOLUTION HOTELKIT
SCOPE OF APPLICATION
- On submission of the order and the activation of the approval button the customer acknowledges these TOU. Any possible general terms and conditions of the customer, unless they deviate from these TOU or changes and amendments confirmed in writing by the hotelkit GmbH, are explicitly excluded.
- hotelkit GmbH is entitled to change the terms of these TOU at any time without giving reasons, whereby such changes are announced on the platform and by sending of the treaty text via email at least 30 days before their entry into force. Should the customer not object to the alterations in writing via email within 30 days after receipt of the announcement, they are regarded as accepted. In the event of any amendments of these TOU, the customer is entitled to declare his withdrawal with immediate effect pursuant to § 10.5.
The subject matter of these TOU is the payment-based utilisation of the intranet solution HOTELKIT, which is available via the platform. HOTELKIT comprises in particular the following applications:
- each customer is provided access to his own network, whose contents can be personalized within the framework of pre-set features
- Hotelkit GmbH shall not acquire any right to the contents adjusted by the customer, in particular the copyright law and intellectual property shall remain with the customer. (More details on how data can be protected from access by third parties, are available under www.hotelkit.net/de/sicherheit-vertraulichkeit/). The customer acknowledges and entitles the hotelkit GmbH to possibly use, change or copy contents provided by the customer within the necessary framework for the supply of HOTELKIT and within HOTELKIT, but only to fulfill the contract with the customer.
- The pre-set features („basic version“) in each customers‘ network, where the customer can add his contents, comprise diverse areas for the collecting, structuring and extension of internal information. The hotelkit GmbH can extend the features of the basic version and/or change or adapt its name or content alignment at any time, in particular as a result of further technical development of HOTELKIT. The customer can purchase additional features, which are offered on the platform and go beyond the basic version, on request.
- The hotelkit GmbH reserves the right to limit and/or extend the nature, division as well as the extent of the customers‘ rights and duties within the scope of technical innovations. Subject to such alterations the users of hotelkit’s basic version are divided into „main-administrator“, in one or more „administrators“ and one or more „users“
- In the course of the set-up process the customer determines which user should take over the function of the main-administrator. The main-administrator is allowed to appoint any number of users to serve as administrators and can again withdraw their administrator rights. The main-administrator as well as the administrators are responsible for the customers‘ permanent access to HOTELKIT. The main-administrator has access to the entire rights and functions of HOTELKIT and is not subject to any control regulations through other users when using HOTELKIT. The customer can appoint the hotelkit GmbH [via email to email@example.com] with the transfer of the role of the main-administrator to another user free of cost
- Users of HOTELKIT can continually update their database, add contents to HOTELKIT and get in touch with other users within the framework of their HOTELKIT. The extent of their respective usage authorisation is determined by the administrator(s) and the main-administrator respectively. The customer is allowed to limit or withdraw the rights assigned to the users, including his access to HOTELKIT or the features that are contained herein. The users‘ access to HOTELKIT can either be deactivated by the administrator(s) or the main-administrator respectively or be deleted by the hotelkit GmbH on request of the administrator(s) or main-administrator respectively at any time.
CONTRACT CONCLUSION, ACCESS TO HOTELKIT
- By submitting his order to the hotelkit GmbH, the customer expresses his willingness to conclude a contract on the (fee-based) use of HOTELKIT. The contractual relationship is concluded by the electronic order confirmation (email) through the hotelkit GmbH.
- The offers on the platform are subject to change. The customers‘ order constitutes the offer with legal effect.
- After contract conclusion the customer shall receive the right to use HOTELKIT based on the conditions set in the TOU.
- A direct or indirect use of HOTELKIT through third parties – with exception of the users authorised by the customer– is not allowed. The users authorised by the customer are not contractual partners of the hotelkit GmbH. The customer is solely responsible for the users’ compliance of the obligations set in the TOU, in particular the correct and legal use referred to in § 4.2.
- The customer is obliged to ensure the platforms‘ accessibility via the Internet at his own expense. The hotelkit GmbH is not responsible for any connection problems to the customers‘ Internet provider or to HOTELKIT.
- In order to be able to access HOTELKIT, the customers‘ devices must be suitable for the services „http“ und „https“ and accept the parameter data transmitted by the HOTELKIT Server. The platform „https://www.hotelkit.net“ must be accessible via the customers‘ devices. The customer shall be solely responsible for the setting and maintaining of these configurations.
- In the course of the online-setup process represented on the platform, the hotelkit GmbH allocates the first user accesses to HOTELKIT. According to the respective procedure depicted on the platform, the customer can register additional users at any time during the term of the contract.
CUSTOMERS‘ RIGHTS AND OBLIGATIONS WHEN USING HOTELKIT
- HOTELKIT establishes an access authorisation for each user by determination of the user name as well as a password. The customer is responsible for preventing misuse of the access mechanism. In particular, the customer shall keep any access data secret and not provide those to third parties, with the exception of users authorised by the customer. The customer is solely responsible for the compliance of these safety regulations. In particular, he has to instruct the users to change their password immediately after the first login and periodically afterwards.
- The customer agrees to the legal and appropriate use of HOTELKIT and ensures that authorised persons fulfill those obligations as well. The customer shall expressly undertake
- to inform the hotelkit GmbH about any change of his contact data (such as company name, business address) within 14 days;
- to avoid misuse of the access options to HOTELKIT and to refrain from illegal actions;
- to secure the fulfillment of all legal regulations with regard to
- data protection and copyright, in particular to comply with generally accepted guidelines for data protection;
- to consider the respective conditions of the copy right and to secure in particular the adherence to user rights, legal regulations, moral standards and/or rights of third parties, when submitting contents (such as photos, pictures, videos, texts, etc.);
- to not upload any pictures that show other persons without their consent, and to ensure the immediate removal of the respective pictures from HOTELKIT after a possible later revocation;
- to not submit contents that harm company-, registered trademarks and other distinctive signs of third parties or any applicable provisions of competition law;
- to not submit and/or distribute illegal data or contents (such as texts, pictures, graphics, links), in particular not to download or make public any files including the presentation of violence, pornographic, discriminating, offensive, racist, defamatory and/or other illegal contents or presentations, and to not engage in offensive behaviour of a sexual nature (such as the sending of chain letters or sexually harassing messages);
- not to harm the functionality of HOTELKIT or facilitate or promote the possible harm through others (such as spamming, hacking-attempts, brute force attacks, spyware, virus attacks, worms, etc.);
- to immediately inform the hotelkit GmbH about identifiable deficiencies or damages (error messages) and to take all appropriate measures in order to allow the identification of deficiencies and damages as well as their sources or facilitate or accelerate the elimination of the error.
- The customer shall ensure the users‘ adherence to the duties of these TOU with regard to the use and operation of HOTELKIT through appropriate measures. In the event of violations of these rules the hotelkit GmbH has the right – without prejudice to § 10.4 – to warn the user acting illegally at its own discretion via the customer and/or to block the users‘ access to HOTELKIT temporarily or permanently. The hotelkit GmbH has the right to immediately eliminate any illegal contents without prior warning or announcement.
RIGHTS AND OBLIGATIONS OF THE HOTELKIT GMBH
- The hotelkit GmbH ensures the security of data, which are set up in HOTELKIT, according to legal provisions (Austrian data protection law, European data protection law as well as the respective data protection regulations).
- The hotelkit GmbH undertakes to use the HOTELKIT contents exclusively within the framework of this contract with the customer and to return them solely to the customer or submit them only after the customer’s written order.
- The hotelkit GmbH undertakes to ensure that all persons involved in the operation of the platform observe to maintain data secrecy before the start of their activity. In particular, the confidentiality obligation of the persons involved in the operation of the platform remains in place even after their duties have ceased or they have left the hotelkit GmbH.
- The hotelkit GmbH undertakes sufficient security measures in order to avoid disorderly use of HOTELKIT contents and access by unauthorized third parties. The hotelkit GmbH is obliged to inform the customer about any systematic and serious illegal use of HOTELKIT contents from the platform immediately after notification.
- The customer agrees to the use, change or copying of his contents to the extent that this is necessary in order to maintain the customer’s legitimate interest and the purpose of this contract. This also includes the anonymised use and statistical evaluation of HOTELKIT contents for the purpose of improving the platform.
- The hotelkit GmbH is allowed, within the scope of HOTELKIT, to assign third parties with the processing of data; those shall not be considered contracting partners of the customer. Information on third parties appointed by the hotelkit GmbH as well as on standards with regard to safety, availability and confidentiality, which the hotelkit GmbH receives from these third parties, are available under: www.hotelkit.net/de/sicherheit-vertraulichkeit/. Any changes of the persons involved in the third parties assigned by the hotelkit GmbH are announced on the platform and via email to the customer at least 30 days before they enter into force. If the customer does not object to the alterations in written form via email within 30 days from the announcement, they are regarded as accepted. In the event of a change of persons involved in the third parties assigned by the hotelkit GmbH, the customer is entitled to terminate the contractual relationship with immediate effect in accordance with § 10.5.
- After termination of the contractual relationship the HOTELKIT data must be provided to the customer free of cost as html documents and files uploaded in their original formats, if the customer requests it in written form within one month after termination of contract, or else these data is destroyed upon agreement with the customer.
SERVICE LEVEL AGREEMENT
- Subject to § 8.1, the hotelkit GmbH guarantees that HOTELKIT is fully operational 24 hours on 7 days a week with an average annual availability of 99.8%. The maximum permissible downtime is therefore 17,52 hours per calendar year (the „permitted total down times“).
- Upon receiving notification of a fault in accordance with § 4.2.4, the hotelkit GmbH will take the necessary fault clearance and maintenance measures within one hour on working days („working day“ shall mean any day on which Austrian banks are open to customers), and within 4 hours on all other days (in each case the „reaction time“).
- If the maximum permissible total downtime is exceeded, the hotelkit GmbH grants a 10% reduction of the monthly user fee for each commenced day of delay (24 hours), however, not more than 50% of the monthly user fee. For the assertion of any further claims for compensation § 8.2. applies.
- If the defined reaction time is exceeded, the hotelkit GmbH grants a 5% reduction of the monthly user fee for every started hour of delay (60 minutes), however, not more than 50% of the monthly user fee. For the assertion of any further claims for compensation § 8.2. applies.
DATA BACKUP THROUGH THE CUSTOMER
- The hotelkit GmbH regularly (several times per day) makes backups of the contents uploaded into HOTELKIT by the customer (detailed information on data backup measures are available under: www.hotelkit.net/de/sicherheit-vertraulichkeit/). As an additional security measure the customer is regularly (once a week) informed and instructed via message in HOTELKIT to store the data uploaded by him and available via his access to HOTELKIT, as a non-portable database file (SQL-Dump) on appropriate storage media.
- After termination of the contract the hotelkit GmbH provides the HOTELKIT data free of cost upon the customer’s written request within one month after termination of contract.
- The hotelkit GmbH shall not be responsible for any access delays or denials as a result of force majeure or due to events which make the access opening of HOTELKIT significantly more difficult or impossible for the hotelkit GmbH, this especially includes strike, lockouts, official orders, the breakdown of communication networks, disturbances in the telecommunications companies – even if they occur at the cooperation partners and subcontractors respectively. The hotelkit GmbH is entitled to postpone the access for the duration of the delay, plus an appropriate start-up period.
- The liability for personal injury and client damages, which have been caused by willful intent or extreme gross negligence of the hotelkit GmbH, is unlimited.
- The liability for client damages, which have been caused by the hotelkit GmbH through plain gross negligence (within the scope of gross negligence that is not that extreme that it must not be expected on usual daily life experience and established practices) or slight negligence, is, to the extent permitted by law, limited to the maximum amount of the basic- and utilization fees, in accordance with § 9, paid by the customer to the hotelkit GmbH in the past 3 months before the event causing such liability.
- The hotelkit GmbH is not liable for indirect damages and consequential damages, in particular lost profits and claims by third parties. The hotelkit GmbH is not liable for any damages on the hardware and software used by the customer to access HOTELKIT. Furthermore, the hotelkit GmbH accepts no liability for faults caused due to unsuitable or inappropriate use, changed operating system components, interfaces and parameters, inappropriate organizational resources and data carriers used by the customer, etc.
- The hotelkit GmbH does not check the contents uploaded by the customer for using HOTELKIT with regard to legal conformity or content accuracy.
- The customer is liable for any infringements or any subsequent damage related to the use and handling of HOTELKIT according to the duties of these TOU caused by the persons having access. If a user’s action results in a damage for third parties, the customer holds the hotelkit GmbH harmless in this respect.
FEE AND PAYMENT
- The amount of the payment for the use of HOTELKIT is shown in the respective price list available on the platform of the hotelkit GmbH, unless a deviating individual offer has been made to the customer. All prices are exclusive of value added tax. The fees of the hotelkit GmbH constitute a integral part of these TOU in the respective applicable version. These fees can be changed by the hotelkit GmbH, whereby such amendments are announced on the platform and via email to the customer at least 30 days before they enter into force. In the case of a change of fees, the customer is allowed to terminate the contractual relationship according to § 10.5 with immediate effect.
- Upon the contract coming into force pursuant to § 3.1, a onetime set-up fee according to the current price list becomes due. The regular fees (monthly basic fee as well as monthly user fee), will be invoiced 3 months in advance. The right to receive payment shall have effect upon use of the service at the latest.
- The user fee is calculated on the maximum number of activated users within one month, counted from the day of contract conclusion (the „contractual month“). The aperiodic adjustments or credit notes resulting from the change of the user amount are taken into consideration in the next advance invoice. The fees of the advance invoice are calculated on the maximum number of activated users of the previous contractual month. Credit notes resulting from a subsequent clearing can be netted by the hotelkit GmbH against existing or following claims against the customer arising from the contract.
- Payments can be made via the methods shown on the platform. Invoices, new fees, reminders, etc. are saved online in the HOTELKIT customer account or are being sent to the electronical address provided by the customer. All invoices shall be due for payment immediately after receipt without deductions. The date of payment is 5 working days from the date of invoice.
- If the payment is not made within the stipulated period, following a warning sent to the email address announced by the customer, the hotelkit GmbH is entitled to charge interest in the amount of 12 % p.a. Furthermore, the hotelkit GmbH reserves the right to charge EUR 10,00, plus value added tax, per reminder. The hotelkit GmbH’s right to claim compensation for further damages shall remain unaffected hereby.
- If the payment is not made within the specified time, the access to HOTELKIT can be locked after 10 working days following an unsuccessful reminder, without having the contractual relationship terminated, unless the hotelkit GmbH has expressly stated the contract termination.
CONTRACT PERIOD, NOTICE OF TERMINATION
- The contract represents a continuous obligation for an indefinite period. The customer is allowed to terminate this contract without giving reason, complying with a 10 working days cancellation period, in written form via registered letter to [hotelkit GmbH, Jakob-Haringer-Straße 1, 5020 Salzburg] or via email to firstname.lastname@example.org at the end of each contractual month.
- The hotelkit GmbH is allowed to terminate this contract complying with a 3-month cancellation period in written form via registered letter or via email to the address indicated on the customer’s order at the end of each calendar month. The participation ends upon effectiveness of the termination or with the termination of HOTELKIT.
- Any misuse through the customer and the persons having access respectively entitles the hotelkit GmbH to terminate the contractual relationship with immediate effect via registered letter or via email to the address indicated on the customer’s order.
- Misuse is any failure by the customer and the persons having access respectively to fulfill the obligation of proper and efficient utilisation (§ 4.2), or if the customer does not meet his payment obligations in spite of a reminder.
- In the case of modifications of these TOU in accordance with § 1.3, the circle of persons of third parties assigned by the hotelkit GmbH in accordance with § 5.6, or the fee in accordance with § 9.1, the customer is entitled to terminate the contractual relationship with immediate effect via registered letter to [hotelkit GmbH, Jakob-Haringer-Straße 1, 5020 Salzburg] or via email to email@example.com.
- Upon termination of the contract any credit of the customer resulting from the payments made in advance (monthly basic fee as well as user fee) will be credited to a customer’s bank account, that has been notified by him in writing, within a period of two months. The set-up fee will not be refunded to the customer upon termination of this contract.
The contractual partners agree to keep trade and business secrets strictly confidential. In particular, they undertake to keep all data entrusted to them secret and use them exclusively within the scope of this contract. The confidentiality agreement remains applicable even after termination of this contract.
- The customer is not entitled to offset any counterclaims against the claims of the hotelkit GmbH or withhold payments due to alleged deficiencies.
- The exclusive place of performance is the hotelkit GmbH‘s registered address. The sole juridical venue is A-5020 Salzburg. Unless expressly authorised by applicable law, Austrian law shall apply exclusively, excluding the reference provisions of the IPRG as well as the UN Convention on the International Sale of Goods (BGBl 1988/96).
- Alterations, amendments and ancillary agreements to these TOU require the written form in order to be valid. This is equally true for agreements to waiver this formal requirement.
- The customer agrees to be included by the hotelkit GmbH in the customer directory, which is used for reference- and acquisition purposes.
- The contractual text is not automatically saved by the hotelkit GmbH within the scope of this contract. The customer is obliged to save the contractual text valid at the time the contract was concluded, which is available on the platform, on an appropriate data carrier, to make a printout or to archive the contractual text in some other way.