Новата поредица семинари под марката „Форум Иновативен Хотел“ стартира в началото на новия летен сезон с 3...
To assist with the booking processes in his hotel business, the customer requires individual software and a certain memory capacity for the storage of the application data generated in those processes.
For a fee, the provider offers the temporary use of such software applications on its computers and a facility for the storage of application data.
In this contract, the parties agree that the provider shall provide the customer with both a facility for use of the required software applications with access via a telecommunication connection and memory capacity for his application data.
§ 1 Subject
In this contract the provider agrees to provide the customer with the software application ibelsa4rooms (hereinafter referred to as 'the APPLICATION') for the use of its functionalities and grants the latter rights of use relating to the APPLICATION on payment of the agreed fee.
The APPLICATION provides a booking system for hotel businesses which handle all their bookings and other internal processes resulting therefrom via the APPLICATION.
§ 2 Provision of APPLICATION and memory capacity for APPLICATION DATA
(1) As from the date on which the contract is concluded, the provider shall hold in readiness on a central computer or several computers – these are hereinafter referred to as 'SERVERS' and may also be situated in non-European countries – the APPLICATION referred to in § 1, in the version current at the time when the contract is concluded, for use as governed by the following provisions.
(2) The provider shall be responsible for ensuring that the APPLICATION provided
is free of defects during the entire term of the contract
is in particular free of viruses and similar damage such as would render it unsuitable for use as provided in the contract.
(3) The provider has sent to the customer the agreed number of user names and user passwords.
(4) As from the point in time at which the contract is concluded, the provider shall hold in readiness on the SERVER sufficient memory capacity to accommodate the data generated by the customer in his use of the APPLICATION and / or the data required for use of the APPLICATION (hereinafter referred to as 'APPLICATION DATA').
(5) The APPLICATION and the APPLICATION DATA shall be saved on the SERVER at regular intervals. The customer shall be responsible for ensuring that data are duly preserved for the periods prescribed by commercial and fiscal law.
(6) The point of delivery for the APPLICATION and the APPLICATION DATA shall be the outgoing router port at the provider's computing centre.
(7) The provider shall not be responsible for the state of the required hardware and software on the customer's side, or for the telecommunication connection between the customer and the provider as far as the point of delivery.
(8) The provider shall make the APPLICATION available to the customer with an average availability of 95% during normal business hours, i.e. between 8 a.m. and 10 p.m.. Maintenance and updates shall – as far as possible – be carried out outside this period and are therefore not to be taken into account in the calculation of said availability.
§ 3 Rights of use
(1) Rights of use relating to the APPLICATION
(a) The customer shall receive simple, non-sub-licensable and non-transferable rights of use relating to the APPLICATION, limited to the term of this contract, as governed by the provisions listed below.
(b) Ownership of the APPLICATION shall not be transferred to the customer. The customer may only use the APPLICATION for his own business activities and via his own personnel.
(c) The customer shall only allow the APPLICATION to be used by the agreed number of persons at any given time.
(d) The customer shall not be entitled to carry out any alterations to the APPLICATION. However, this shall not apply to alterations necessary to the correction of errors, if the provider is in default with the rectification of the error, refuses to rectify it or is not in a position to do so because insolvency proceedings have been opened regarding his assets.
(e) If during the contract term the provider creates new versions, updates, upgrades or other replacements of the APPLICATION, the abovementioned rights shall also apply to these.
(f) The customer shall not be entitled to any rights not expressly granted to him above. In particular, he shall not be entitled to use the APPLICATION in a greater scope than that agreed, allow it to be used by third parties, or render it accessible to third parties. He shall not be permitted to copy the APPLICATION, sell it or surrender it for any limited period of time or, in particular, hire it out or lend it.
(g) Moreover, the so-called 'freeplan' shall apply. Under the freeplan, the APPLICATION will only function in a limited way if payment of the fee has been discontinued. The customer will only be able to carry out bookings for the first two rooms on the list. He will be able to access the remaining rooms together with all the data which have been entered, but no longer to carry out bookings for them. The use option will be restored when the fee has been paid. This facility is to be pointed out to the customer explicitly on conclusion of the contract; the same shall apply if and whenever the freeplan comes into effect because of discontinued payment.
(2) Customer's obligations to ensure secure use
(a) The customer shall take the precautions necessary to prevent unauthorised persons from using the APPLICATION.
(b) The customer shall be responsible for ensuring that the APPLICATION is not used for racist, discriminatory or pornographic purposes, or for purposes which endanger the protection of minors, are politically extreme or otherwise unlawful, or which contravene official regulations or requirements, and that no data of the above nature, in particular APPLICATION DATA, are generated and / or stored on the SERVER.
(3) Violation by the customer of the provisions in § 3 (1) and (2)
(a) If the customer violates the provisions in § 3 (1) or (2) and is responsible for so doing, the provider shall, having advised the customer in writing, be entitled to block the latter's access to the APPLICATION or the APPLICATION DATA, if it can be shown that this will enable the violation to be remedied.
(b) If the customer is in unlawful breach of § 3 (2) (b), the provider shall be entitled to delete the data or APPLICATION DATA affected. In the case of unlawful breach by a user or users, the customer shall furnish the provider on demand and without delay with all information required for the filing of claims against said user or users, in particular the latter's name(s) and address(es).
If in spite of appropriate written warning from the provider the customer is in continual or repeated violation of the provisions in § 3 (1) or (2) and is responsible for so being, the provider shall have the right to give extraordinary notice of termination of the contract without being obliged to observe any period of notice.
(4) Customer's rights to newly created databases and database rights
If during the term of this contract, as a result of activities of the customer's such as are permitted thereunder, in particular by the compilation of APPLICATION DATA, one or more databases or database rights are created on the provider's SERVER, it is the customer who shall be entitled to all rights relating thereto. The customer shall furthermore remain the owner of said databases or database rights after termination of the contract.
§ 4 Liability for third-party rights
(1) The provider shall inform the customer without delay of any third-party rights and of any way in which they may prejudice the rendering of agreed performances, and shall enable him in an appropriate manner to access the APPLICATION DATA unrestrictedly.
(2) The customer shall, if and to the extent that said third-party rights prejudice him in his use of the APPLICATION, not be under any obligation to pay remuneration.
(3) Refusal to use the APPLICATION and / or the APPLICATION DATA for legal reasons as in § 4 (1) shall be regarded as non-availability.
If the provider is not or no longer in possession of the rights he requires in order to perform the contract in the due and proper manner, in particular those necessary to the use of software and documentation, and the APPLICATION is unusable for a period of more than 1 month, the fee shall be reduced as from the second month.
(4) The provider shall at the first request indemnify the customer against all third-party claims which result from the inability of the provider to render the agreed performances without prejudice because of the rights of said third parties. The parties shall inform each other in writing without delay if any claims are made against them.
(5) The provider shall not be liable for violation of the rights of any third parties by the customer provided that, and to the extent that, said violation results from the customer's overstepping the rights of use granted to him in accordance with this contract. In such a case the customer shall indemnify the provider against all third-party claims at the first request.
§ 5 Fee
(1) The remuneration for the rendering of performances, including the granting of use of the APPLICATION and the provision of memory capacity including data back-up, shall be 4 euros net per room and month plus value added tax at the current statutory rate. Payments shall be made via credit card. In Germany it will also be possible to agree payment via direct debit authorisation or debit note.
(2) The first 30 days of use of the APPLICATION, as from the point in time at which it is provided ready for use, shall be free of charge. The debit entry shall be made on the 31st day after said point in time. The customer shall be informed of this on the 20th day.
(3) The provider shall be entitled to increase the fee having given written notice of at least one month to the beginning of the following month provided that, and to the extent that, the costs he incurs in the proper execution of the contract have increased. The customer shall have the right to give notice of termination of the contractual relationship in writing within a period of one month after receipt of said notice. The provider shall remind the customer of this right each time he issues such notice.
(4) If the customer fails to pay the fee referred to in § 5 (1), the freeplan shall come into effect in accordance with § 3 (1) (g).
§ 6 Customer's obligations
The customer shall perform all obligations necessary to the execution of the contract. He shall
1. maintain secrecy on the use and access authorisation allocated to him and / or the users and the agreed identification and authentication safeguards, protect them against access by third parties and not pass them on to unauthorised users. These data are to be protected by means of suitable and customary precautions. The customer shall inform the provider without delay if he suspects that the access data and / or passwords may have become known to unauthorised persons;
2. create the necessary access conditions;
3. comply with the obligations regarding rights of use as in § 3, in particular
a. name all the users he expects to use the APPLICATION in accordance with § 3 and register any changes to said list of names;
b. not retrieve any information or data or allow such to be retrieved without authorisation, interfere in programmes operated by the provider or allow such interference to take place, or intrude in data networks of the provider's without authorisation or promote any such intrusion;
c. not make any improper use of the exchange of electronic news which is possible in the context of the contractual relationship and / or during the use of the APPLICATION for the unsolicited forwarding of news or information to third parties for advertising purposes;
d. indemnify the provider against third-party claims such as are based on unlawful use of the APPLICATION by the customer or arise from disputes caused by the latter relating to data protection law, copyright or other legal disputes associated with the use of the APPLICATION;
e. place the authorised users under obligation in turn to comply with such provisions of this contract;
4. ensure that he pays heed to all third-party rights relating to material used by him;
5. obtain the necessary consent of the party concerned in accordance with § 7 (2) if he gathers, processes or uses personal data in his use of the APPLICATION and there is no prevailing statutory circumstance which would render such gathering, processing or use permissible;
6. before sending data and information to the provider, check said data and information for viruses and deploy anti-virus programmes such as correspond to the current state of technology;
7. notify the provider without delay of any defects in contractual performance, in particular as governed by §§ 2 and 3. Failure by the customer to give timely notification for reasons for which he is responsible shall constitute contributory causation or contributory negligence. If the provider was not able to remedy the situation as a result of failure to notify or delayed notification, the customer shall not be entitled to retain or reduce the fee referred to in § 5 of the contract, demand compensation for loss or damage caused by the defect, or give extraordinary notice of termination of the contract on account of the defect without being obliged to observe any period of notice. The burden of proof of his not being responsible for the failure to notify shall rest with the customer himself;
8. pay the fee agreed in § 5 within the prescribed period or, if applicable, ensure that there are sufficient funds in the credit-card account or normal account to do so;
9. if he sends data to the provider for the generation of APPLICATION DATA with the aid of the APPLICATION, duly save said data at regular intervals and in a way that befits their relative importance, and create back-up copies of his own in order to enable the data and information to be reconstituted if they should be lost;
10. if and to the extent that the technical facility to do so is freely afforded to him, save the APPLICATION DATA stored on the SERVER at regular intervals by means of downloads; the provider's own obligation to save data shall however remain unaffected by this.
§ 7 Data security, data protection
(1) The parties shall pay heed to the respective applicable data protection regulations, in particular those in force in Germany, and place those of their employees who are deployed in the context of the contract and its execution under obligation to observe data secrecy in accordance with § 5 of the Federal German Data Protection Act (BDSG) if they have not already been placed under due general obligation.
(2) If the customer gathers, processes or uses personal data, he shall be responsible for ensuring that he is entitled to do so in accordance with the applicable regulations, in particular those governing data protection, and shall, in case of a breach, indemnify the provider against third-party claims. If the data to be processed are personal data, the processing is commissioned and the provider shall pay heed to the statutory requirements governing commissioned data processing and the instructions of the customer (for example to comply with obligations to erase and block data). Such instructions must be given in a timely manner and in writing.
(3) The provider shall take the technical and organisational security precautions and measures in accordance with the Annex to Section 9 of the BDSG. He shall in particular protect the services and systems to which he has access and the APPLICATION DATA which belong to or concern the customer and are stored on the SERVER and, if applicable, other data, against unauthorised disclosure, and against their being saved, altered, accessed or attacked in any other unauthorised way – be it by technical means, viruses or other detrimental programmes or data or by physical access – by employees of the provider or third parties, in whatever manner. To this end he shall take such measures as are suitable and customary, and advisable in accordance with the current state of technology, in particular protection against viruses and similar detrimental programmes, and other precautions to safeguard his establishment including protection against burglary.
(4) Following prior written announcement giving advance notice of not less than than 5 working days, the customer shall be entitled to demand access to the premises where the APPLICATION, the APPLICATION DATA and the SERVER are located. This shall not affect the access rights of the customer's data protection officer to verify that the requirements in the Annex to Section 9 of the BDSG are being complied with, and that the provider is otherwise handling the personal data in ways that conform to the law and the contract in his operation of the APPLICATION under this contract. There shall be no right of access if the SERVER is in a non-member state of the EU as in § 7 (7).
(5) The provider shall gather and use customer-related data only to the extent called for in the performance of this contract. The customer agrees to the gathering and use of such data to that extent.
(6) The obligations referred to in § 7 (1) to (4) shall also continue, for as long as APPLICATION DATA remain in the sphere of influence of the provider, beyond expiry of the contract. The obligation referred to in § 7 (5) shall also continue beyond expiry of the contract for an indefinite period of time.
(7) If the provider intends to carry out his data processing in a non-member state of the EU or relocate it there, he shall notify the customer of this in writing beforehand. If the customer agrees to the relocation, the standard contractual clauses II for the transfer of personal data from the community of third countries (Commission Decision 2004/915/EG of 27 December 2004) shall apply.
§ 8 Confidentiality
(1) The parties shall maintain silence on all information of the kind which needs to be treated confidentially and has come to their knowledge in the context of this contractual relationship or, as applicable, only use such information in their dealings with third parties – for whatever purpose – after having obtained written consent from the respective other party. Information which is to be treated as confidential includes both information expressly designated as such by the disclosing party and information whose confidentiality is obvious from the circumstances of its disclosure. The APPLICATION DATA in particular are to be treated as confidential by the provider if he should gain knowledge of them.
(2) The obligations referred to in § 8 (1) shall cease to apply for information, or parts of it, in relation to which the receiving party can prove that it
> was already known or generally accessible to said party before the date on which it was received;
> was already publicly known or generally accessible in the public domain before the date on which it was received;
> became publicly known or generally accessible in the public domain after the date on which it was received although the receiving party was not responsible for this.
(3) Public announcements by the parties regarding their working together shall only be made in prior mutual agreement.
(4) The obligations referred to in § 8 (2) shall also continue after expiry of the contract for an indefinite period of time, said period extending until such time as a circumstance which constitutes an exception as outlined in § 8 (2) can be shown to prevail.
§ 9 Insolvency and impending insolvency of one of the parties
(1) A party must inform the other party without delay if
1. it has applied for the opening of insolvency proceedings or intends to do so in the next 14 calendar days
2. an application has been made for the opening of insolvency proceedings by a third party or parties
3. it has become necessary for said party to cease payment on account of financial difficulties
4. measures have been taken against said party by third-party creditors toward the satisfaction of their claims in temporal connection with financial difficulties or
5. said party has, in temporal connection with financial difficulties, entered into agreements involving the satisfaction of claims by third-party creditors.
(2) If any of the circumstances outlined in § 9 (1) 3.– 5. prevail, the other party shall have the right to give extraordinary notice of termination of the contractual relationship without being obliged to observe any period of notice.
§ 10 Liability and limitations of liability
(1) In cases of intent or gross negligence, the parties shall be unrestrictedly liable to each other for all loss or damage caused by them or their legal representatives or employees.
(2) In cases of ordinary negligence, the parties shall be unrestrictedly liable in cases of injury to life, limb or health.
(3) Otherwise, a party shall only be liable to the extent to which it has violated a material contractual obligation (cardinal obligation). In such cases liability shall be restricted to compensation for foreseeable, typical loss or damage. The provider shall bear no liability for damages of the kind which makes no distinction as to actual culpability in the case of defects which were present on conclusion of the contract. § 10 (1) and (2) shall remain unaffected by this.
(4) Liability in accordance with the German Product Liability Act (ProdHaftG) shall also remain unaffected by this.
§ 11 Term, notice of termination
(1) The contractual relationship shall begin upon the signing of the contract and shall be concluded for an indefinite period of time. The performances shall be rendered as from the point in time agreed in § 2 (1).
(2) It shall only be possible to give extraordinary notice of termination on account of or in connection with breach of obligation after prior written notice of not less than than 30 working days.
If the party entitled to give extraordinary notice of termination has known about the circumstances which justify giving that notice for more than 14 working days, he shall no longer be entitled to found the notice on said circumstances.
§ 12 Obligations on and after termination of the contract
On termination of the contractual relationship at the latest, the provider shall be under obligation to make available to the customer in a current export format the APPLICATION DATA stored by the customer and, if applicable, other data stored on the bulk memory facility provided in accordance with § 2 (4).
§ 13 Force majeure
Neither of the parties shall be under obligation to perform its contractual obligations if and as long as circumstances of force majeure prevail. The following circumstances in particular are to be deemed force majeure in this context:
fire / explosion / flooding for which the party is not responsible
war, mutiny, blockade, embargo
industrial action which persists for more than 6 weeks and is not caused culpably by the party
technical Internet problems beyond the influence of the party.
Each of the parties must inform the other in writing without delay if a case of force majeure arises.
§14 Concluding provisions
(1) German substantive law shall apply to the contractual relationship, there being no recourse to the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) There are no collateral agreements outside this contract and its appendices. Any alterations or additions to this contract and its appendices are to be made in writing if they are to have any validity. This shall also apply to any move made to waive this necessity of submitting alterations in writing itself.
(3) If any individual provision or provisions of this contract should be invalid, this shall not prejudice the validity of the remaining contents.
(4) If in the practical application of this contract omissions of the kind not foreseen by the parties are found to exist, or if the invalidity of a provision should be established as legally binding or consensually ascertained by both parties, the parties undertake to rectify or, as the case may be, replace said omission or invalid provision in a businesslike way which is appropriate to the economic purpose of the contract.
(5) All disputes arising in the context of this contract or concerning its validity shall be finally resolved in accordance with the code of arbitration of the German Institution for Arbitration (DIS), there being no recourse to courts of law. The place of arbitration shall be Cologne. There shall be 3 arbitrators.