Terms and Conditions
General Terms and Conditions of Hospitality Digital GmbH (Internet Services)
Hospitality Digital GmbH Metro-Strasse 1, 40235 Düsseldorf ("Hospitality") offers companies from the hotel and restaurant industry ("Principal") free services that are provided exclusively through the Internet and that are described in further detail below (the "Services"). Some Services may only become available once the Principal has registered.
1. Scope of Application
1.1 Hospitality shall provide the Services and other benefits only based on the terms and conditions below ("GTC").
1.2 Any deviating terms and conditions of the Principal shall not apply, even if Hospitality does not specifically reject these and/or provides the Services and/or other benefits without reservation in full knowledge of the contrary and/or deviating terms and conditions of the Principal.
2. Scope of Services
2.1 The Services include the following benefits provided by Hospitality for the term of the agreement:
(a) Hospitality shall provide the Principal with hosted storage space to be used on the systems of Hospitality, which the Principal may access via the Internet ("Hosted Storage Space"), see section 4.
(b) Hospitality shall grant the Principal online access to software that enables the Principal to create simple websites with pre-set layouts and to store these on the Hosted Storage Space, to manage the Hosted Storage Space, and/or to make it accessible to third parties ("Software"), see section 5.
(c) Hospitality shall offer to the Principal a sub-domain under the domain name "eatbu.com" of Hospitality in accordance with the sample xyz.eatbu.com, which the Principal may select depending upon availability and that is linked to the Hosted Storage Space ("Sub-Domain"), see section 6.
2.2 Hospitality may offer additional benefits to the Principal, the scope of which is to be coordinated with the Principal and which are provided subject to the provisions of these GTC.
2.3 Hospitality may adjust the Services and other benefits to the state of the art and technical developments or necessities, provided the respective adjustment is within reason for the Principal. Hospitality may discontinue the Services and other services with a reasonable notice period. Hospitality shall inform the Principal about the discontinuation of the Services in a timely manner.
3. Principal's Obligations
3.1 The Principal shall keep the business and contact information provided at the conclusion of the agreement current for the entire term of the agreement and shall promptly inform Hospitality of any changes. The Principal shall furthermore ensure that the e-mail address provided to Hospitality is regularly accessed in order to obtain information that is relevant for the agreement.
3.2 The Principal shall protect all access information received by the Principal from Hospitality against any access from unauthorized third parties. The Principal shall inform Hospitality as soon as the Principal has a reasonable suspicion or knowledge of a potential misuse of the access information provided.
3.3 The Principal is aware that their website may be associated with Hospitality. Therefore, the Principal shall take all steps necessary to keep the services offered by Principal and the services offered by Hospitality or third parties separate in terms of their content.
3.4 Should the Principal find out that their use of the Services or other benefits lead to a violation of the law, the Principal shall be required to immediately cease and desist from violating the law and delete any illegal content.
4. Special Hosted Storage Space Provisions
4.1 The Hosted Storage Space is provided to the Principal free of charge. Consequently, Hospitality cannot guarantee a particular availability of the Hosted Storage Space. Furthermore, the Hosted Storage Space shall be unavailable during necessary maintenance work. Hospitality shall strive to keep any impairment caused by maintenance work as low as possible. Hospitality shall provide the Principal with the other performance specifications of the Hosted Storage Space prior to the conclusion of the agreement.
4.2 The Principal undertakes and warrants that all files, including HTML and other documents, texts, pictures, graphics, fonts, videos, etc., ("Content") shall be stored, published, and/or made available on the Hosted Storage Space and/or with the help of the Software in accordance with applicable law. The Principal shall specifically only store Content on the Hosted Storage Space and/or with the help of the Software for which the Principal holds the required rights, including use and exploitation rights under copyright law, and that such Content does not infringe any personal rights of third parties. Furthermore, the Principal shall not store, publish, and/or make available on the Hosted Storage Space and/or with the help of the Software any Content that is of an immoral, in particular pornographic, racist, or discriminatory nature. Hospitality shall be entitled to delete any Content that is stored on the Hosted Storage Space and/or with the help of the Software in violation of this section 4 and of which Hospitality is informed by government agencies, courts, the holder of rights, or other third parties or of which it gains knowledge in another way.
4.3 The Principal shall grant Hospitality the necessary rights to all Content that the Principal stores, publishes, and/or makes publicly available on the Hosted Storage Space and/or with the help of the Software, in particular the rights required to store the Content, to make technical adjustments to it, to make it publicly available, and to copy it. Hospitality may only have access to the Principal's Content on the Hosted Storage Space to the extent this is technically necessary to provide and/or publish the Content and to the extent this corresponds to the contractually granted authorizations.
4.4 Furthermore, the Principal may not run or arrange to run any automated processes, scripts, software or other data and/or Content on the Hosted Storage Space and/or or take any steps or have any steps taken (with the help of the Software), which would more than even insignificantly impair systems, networks, and/or other hardware and software such as network components of Hospitality and/or third parties. In the event that Hospitality learns of such impairment, Hospitality shall be entitled to stop such impairment and/or prevent it.
4.5 The Principal shall perform data backups on a daily basis in order to be able to recover the Content of the Hosted Storage Space without any additional cost.
4.6 The Principal may only make websites publicly available on the Hosted Storage Space that were created with the help of the Software.
5. Special Software Provisions
5.1 The Principal shall be granted access to the Software exclusively for the creation of a website for the Principal and for the administration of their Hosted Storage Space. Hospitality shall grant access at the handover point to the public network.
5.2 The Principal may not access or use the Software on behalf of a third party or for other purposes. The Principal shall specifically not be authorized to copy the Software, to make it available to third parties, to disassemble the Software, or to modify it in any other way.
6. Special Sub-Domain Provisions
6.1 When registering the Sub-Domain with Hospitality, the Principal must comply with the requirements of the Internet Corporation for Assigned Names and Numbers ("ICANN"), which is the entity that assigns .com domains. The Principal may register a maximum of three Sub-Domains with Hospitality.
6.2 The Principal undertakes and warrants that the Sub-Domain shall be selected only in accordance with applicable law and that, in particular, the Principal shall only select names for the Sub-Domain for which the Principal owns the respective rights including trademark and/or name rights. The Principal shall furthermore not register any domain names for the Sub-Domain that are contrary to public policy or immoral. Hospitality shall be entitled to delete any Sub-Domains that were chosen in violation of this section 6.2 and of which Hospitality is informed by government agencies, courts, the holder of rights, or other third parties or of which it gains knowledge in another way.
7. Special Provisions for Additional Benefits
7.1 Notwithstanding section 2.1(c), the Principal may register their own domain name and/or use an already registered domain name and link it to the Hosted Storage Space. Hospitality shall refer the Principal to an external service provider for the registration. The agreement for the registration of such an own domain name is concluded between the Principal and external service providers. Hospitality shall be neither a contracting nor any other party to that agreement.
7.2 Hospitality shall provide the Principal with technical support for linking of their own domain name with the Hosted Storage Space.
8. Conclusion of the Agreement, Term, Termination
8.1 The agreement shall be deemed as concluded when the Principal accepts the offer for the conclusion of an agreement governing the Services and other benefits by Hospitality. Acceptance generally takes place by Hospitality commencing with the provision of the Services.
8.2 This agreement shall be concluded for an indefinite period and may be terminated by the Principal at any time and by Hospitality with a notice period of two (2) weeks.
8.3 Hospitality shall communicate terminations either in writing or by email. The Principal generally terminates by selecting in the Software the respective option to delete its content and then confirming it.
8.4 This shall not affect the Parties' rights to terminate the agreement without notice for good cause. Good cause is given in particular if the Principal does not meet one of the obligations set forth in sections 3, 4, 5, 6, 10.2, and 10.3.
8.5 Upon having terminated the agreement, regardless of the grounds, Hospitality shall delete all data stored by the Principal on the Hosted Storage Space within the context of the contractual relationship as well as the Sub-Domain within thirty (30) days, unless the Principal performs the deletion themselves with the help of the Software.
9. Warranty and Liability, Indemnification
9.1 With regard to the Services and benefits that Hospitality provides to the Principal free of charge, Hospitality shall reimburse the Principal only for damages incurred by the Principal due to fraudulently concealed defects. Hospitality shall not bear any further liability for defects of title and/or material defects for Services and benefits provided free of charge.
9.2 Hospitality, their vicarious agents, or their legal representatives shall be liable for the Services and benefits provided by Hospitality to the Principal free of charge only in cases of intent, gross negligence, or a culpable loss of life, bodily injury, or damage to health as well as for fraudulently concealed defects. In the event of lost data, the liability of Hospitality shall however only be limited to the recovery costs that would have been incurred if the data had been backed up on a daily basis. Liability pursuant to the German Product Liability Act and the Minimum Wage Act shall remain unaffected.
9.3 Only the Principal shall be responsible for the Content and the name of the Sub-Domain. Therefore, the Principal shall upon first request indemnify and hold Hospitality, their vicarious agents and legal representatives and all companies affiliated with Hospitality pursuant to Sec. 15 of the German Stock Corporation Act (AktG) harmless of any third-party claims asserted against Hospitality, their vicarious agents, legal representatives and/or companies affiliated with Hospitality due to or in connection with the Services and other benefits. This shall specifically apply for all trademark, copyright, data protection, and competition violations. This indemnification shall comprise the necessary legal costs including costs for arbitration proceedings as well.
10. Data Protection, Confidentiality
10.1 Hospitality shall only collect personal data within the context of this agreement for the execution of the agreement. In the event that the Principal asks Hospitality to process additional data on their behalf, the Principal shall enter into the required contractual agreement with Hospitality prior to performance.
10.2 In respect of third parties, the Principal shall be exclusively responsible for compliance with the respective data protection provisions, which includes compliance with existing obligations to furnish information in connection with the website that the Principal created with the Software.
10.3 The Parties shall not make any confidential information accessible to third parties for the duration of the agreement and two years thereafter and shall not use it for any purposes that do not serve the agreement. All information pertaining to technical information and know-how provided to the Principal as well as information that is identified by one of the Parties as confidential and that is of economic value shall be considered as confidential.
10.4 The duty to confidentiality shall not extend to information that became known to the other party without one of the Parties breaching confidentiality or that became or already is public knowledge or that must be made available to third parties due to statutory provisions, a court order, or an administrative order or that is reviewed by a third party, who has been sworn to secrecy, intending to purchase one of the companies.
11.1 The Principal shall not owe any remuneration for the provision of the Services by Hospitality. The Services shall be provided free of charge.
11.2 Any third party services provided within the context of expanded services shall not be affected by section 11.1.
12. Miscellaneous Provisions
12.1 Hospitality may have a part of or the entire performance they owe within the provisions of this agreement, in particular the Services, rendered by subcontractors. Hospitality intends to have these Services rendered by their subsidiary Hospitality.systems GmbH.
12.2 Hospitality may amend these GTC upon prior notification of the Principal, including intended amendments. Hospitality may only amend these GTC to the extent that this is reasonable for the Principal, such amendment does not apply to one of the main contractual obligations or to the extent that the Principal is not put in an overall inferior situation by the amendment. The already intended transferal of rights and obligations of Hospitality described herein to their subsidiary Hospitality.systems GmbH shall be deemed as reasonable. The Principal may challenge an amendment of the GTC within six (6) weeks from receipt of the notification or terminate the agreement without notice. Should the Principal not challenge the amendment of the GTC or not within the notice period, their consent to the amendment of the GTC shall be assumed. Hospitality shall inform the Principal of the consequences of a failure to challenge and the right to terminate the agreement without notice in all notifications applicable to an amendment of the GTC.
12.3 Should a provision of this agreement be or become, either in full or in part, invalid, ineffective, impracticable, or unenforceable ("Erroneous Provision"), the effectiveness and enforceability of the other provisions of this agreement shall not be affected. Instead, the Parties already now undertake to agree in place of the Erroneous Provision to such a provision, which, to the extent permitted by law, comes closest to what the Parties had wanted in accordance with the sense and purpose of the agreement, if they had recognized the error of the provision. If the provision is erroneous due to the extent of the service or the time, (deadline or due date) determined therein, the provision should be agreed with an extent permitted by law that comes closest to the original extent. The same shall apply to any loopholes in this agreement. It is the expressed intention of the Parties that this severability clause does not result in a mere reversal of the burden of proof, but that Sec. 139 of the German Civil Code (BGB) as a whole shall not apply.
12.4 This agreement and all claims and rights based on or in connection with this agreement shall exclusively be governed by German law and shall be interpreted and enforced under German law. The conflict of laws provisions shall not apply. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
12.5 This agreement has been concluded both in English and in [French / Italian] language. For the avoidance of doubt, the Parties agree that the English version shall prevail.
12.6 The exclusive place of jurisdiction for all disputes arising from or in connection with this agreement, its conclusion, or its execution shall be Düsseldorf - to the extent this is permitted under the law.