§ 1 Scope of services
1.1 Connected Destination Holding GmbH, a limited liability company under German law, Königstadt-Carree am Alexanderplatz, Mollstraße 32, 10249 Berlin, Germany (hereinafter: “CD”) operates a system in order to provide an opportunity to close agreements for services in tourist destination areas. “Service Providers” are all entrepreneurs in tourist destinations, who offer travel services of all kinds, in particular accommodation companies (e.g. hotels, guest houses, holiday homes), gastronomy, sport and trip organisers, town and country guides, car, bicycle or boat hirers or also providers of other leisure activities as well as those entrepreneurs, who provide services associated with the provision of travel services, in particular organisers and providers of entrance authorisations (tickets). The services offered by the Service Providers shall among others include accommodation, transport and thus associated services, in particular overnight hotel stays, gastronomy services, rental car, bicycle or boat rentals, leisure activities, excursions or sport courses, the sale of tickets and the planning and execution of events of all kinds (hereinafter: the “Travel Services”).
1.2 CD offers a web-based administration, booking and marketing software as a computer-controlled reservation platform (computer reservation system; hereinafter: “CRS”) for the SERVICE PROVIDERS via the web address www.connected-destination.com (hereinafter: “Website”) under the Connected Destination brand.
1.3 Via the CRS the TRAVEL SERVICES may demanded by remarketing companies, in particular tour operators, travel agencies (stationary or through an Online Travel Agency in the online distribution) or other intermediary platforms (together: “Travel Broker”).
§ 2 Scope and conclusion of contract
2.1 This Framework Agreement (hereinafter as: “AGB”) shall apply to all contracts between CD and the SERVICE PROVIDERS, of which the object is the use of the CRS and the thus associated bookings of the TRAVEL SERVICES (hereinafter: the “Contract of Use”).
2.2 Exclusively these AGB shall apply to the CONTRACT OF USE. General Business or Contractual Terms and Conditions of the SERVICE PROVIDER are and will not become included in the CONTRACT OF USE. Their Contractual and General Business Terms and Conditions shall respectively apply to services of third party providers. Insofar as services of third party providers become necessary for the use of the CRS services, this shall be recognisable for the SERVICE PROVIDER on the website.
2.3 The CONTRACT OF USE shall only be concluded between CD and the SERVICE PROVIDER in its capacity as entrepreneur within the meaning of Section 14 German Civil Code (BGB). CD shall not conclude any contracts with consumers.
2.4 The CONTRACT OF USE is to be concluded in a text form. For this purpose the SERVICE PROVIDER will register on the website. After the registration the SERVICE PROVIDER will receive a confirmation e-mail from CD, with which the CONTRACT OF USE and these AGB will be sent to the SERVICE PROVIDER. This confirmation e-mail represents at the same time the offer for the conclusion of the CONTRACT OF USE. In this e-mail a weblink is moreover transmitted. By clicking on this weblink the SERVICE PROVIDER accepts the offer for conclusion of the CONTRACT OF USE in a binding way. The conclusion of the contract will be confirmed by CD once again with a separate e-mail. Alternatively to this, the CONTRACT OF USE can also exclusively be agreed by e-mail.
2.5 After conclusion of the contract CD will activate the user account of the SERVICE PROVIDER, which the SERVICE PROVIDER can reach with his entered e-mail address and password (“Access Data”). The ACCESS DATA are to be kept secret by the SERVICE PROVIDER and may not be made accessible to third parties; the SERVICE PROVIDER has to ensure that his employees, to whom access data are made available, also subject themselves to the aforementioned non-disclosure obligation.
§ 3 Contents and scope of the use service
3.1 The CRS is operated by CD as a web-based reservation platform. CD shall make the software that is necessary for using the CRS available to the SERVICE PROVIDERS in its respective current version (“Transfer Point”) as well as the CRS. The provision of the software as well as the CRS shall only apply to the respective SERVICE PROVIDER, who has concluded the CONTRACT OF USE with CD. Moreover, CD shall provide the application as well as computer power and the necessary memory, storage and data processing set that are necessary for the use.
3.2 The SERVICE PROVIDER will be enabled to use the IT infrastructure stored and running on the servers of CD or a service provider commissioned by CD via an Internet connection during the term of the CONTRACT OF USE and to store and process his data with its help and to make these available via distribution channels to intermediaries, distributors as well as for the booking and reservation of a TRAVEL SERVICE of the SERVICE PROVIDER.
3.3 If enabled by the software and/or the CRS and after prior release by CD in a text form, elements of the CRS, such as for example registration masks, can be integrated into travel portals or own websites of the SERVICE PROVIDER.
3.4 CD does not assume any responsibility or liability for restrictions or impairments to services, which are beyond the scope of control of CD. This shall in particular include acts of third parties, which do not act by order of CD, technical condition of the Internet which cannot be influenced by CD as well as force majeure. The hardware and software and technical infrastructure used by the SERVICE PROVIDER can also have an influence on the services of CD. Insofar as such circumstances have an influence on the availability of the functionality of the services provided by CD, this shall have no implications on the contractual conformity of the provided services by CD.
§ 4 Input of travel data
4.1 The SERVICE PROVIDER will transmit the data of the relevant TRAVEL SERVICE, in particular the availability of services (e.g. rental cars, rooms, contingents for sports activities, etc.), type and amount of the consideration (e.g. daily room prices, prices for excursions, etc.), other contractual conditions (e.g. scope of the Travel Service, accommodation or excursion conditions, equipment, etc.), photographs for the TRAVEL SERVICE and description texts (hereinafter jointly: the “Travel Data”) electronically to CD. The electronic transmission is carried out by means of input in the CRS, by connection to the Property Management System or the Channel Manager by the software provided by CD for this purpose.
4.2 The SERVICE PROVIDER is exclusively responsible for the input and the content of the TRAVEL DATA, in particular, undertakes to ensure himself that the TRAVEL DATA entered with CD are complete and correct. CD does not otherwise assume any liability by complying with the regulation of § 14 for damages, which are suffered by the SERVICE PROVIDER due to a false or incomplete input of data.
4.3 The SERVICE PROVIDER undertakes to at least enter one photo and one description text into the CRS. The uploaded photos must correctly and clearly recognisable depict the respective offered TRAVEL SERVICE. The description text has to correctly and fully include the essential offered contents of the respective service. The SERVICE PROVIDER is not entitled to the input of a certain number or size of the photos, a certain length of the description text, the scope of the service description or certain TRAVEL DATA. CD is entitled to issue standard stipulations for the scope of the data that are to be entered, in particular description texts at its reasonable discretion.
4.4 All prices are to be entered with the actual daily rate; they have to be denominated in Euro. In addition to the respective prices of the TRAVEL SERVICES the SERVICE PROVIDER has to state additionally incurred taxes or fees or for certain destinations additional local customary duties such as e.g. tourist taxes or City-Tax.
4.5 The SERVICE PROVIDER is forbidden from entering inappropriate, offensive, faulty, misleading, competition-distorting description texts or photos in the CRS. CD is entitled to exclude the respective SERVICE PROVIDER from the use of the CRS or to delete the data entered by the SERVICE PROVIDER or to terminate the CONTRACT OF USE extraordinarily and without notice if the SERVICE PROVIDER breaches his obligations from this Subclause 4.5.
4.6 The SERVICE PROVIDER explicitly declares that he agrees that the entered TRAVEL DATA may be collected and stored by means of an aggregator software by CD. The SERVICE PROVIDER has been informed that TRAVEL BROKER have access to the respective TRAVEL DATA transmitted by him to CD.
4.7 CD regularly secures the TRAVEL DATA on a backup server. The SERVICE PROVIDER can export these data, insofar as made possible from a technical point of view by CD, at all times for backup purposes. If such a technical possibility exists, the SERVICE PROVIDER is responsible for carrying this export out at regular intervals. Insofar as an export of the TRAVEL DATA is not possible CD will make the TRAVEL DATA available to the SERVICE PROVIDER upon request as a backup.
§ 5 Ensuring the infrastructure by the Service Provider
5.1 The SERVICE PROVIDER has to ensure that the system prerequisites described by CD on the website for the use of the software or of the CRS have been fulfilled at the SERVICE PROVIDER. The SERVICE PROVIDER shall bear the responsibility for this himself.
5.2 The SERVICE PROVIDER undertakes to ensure himself that
5.2.1 the TRAVEL DATA deposited at CD can be read out, insofar as the obligation is not part of the service by CD and
5.2.2 that CRS can read out or transmit the actual daily contingents of the TRAVEL SERVICES in case of booking enquiries via the CRS. For this purpose the SERVICE PROVIDER has to constantly maintain the data connection between his IT systems and the TRANSFER POINT in order to enable an electronic call of the contingents of the TRAVEL SERVICES by the CRS at all times. CD does not in any way owe the establishment and maintenance of the data connection between the IT systems of the SERVICE PROVIDER and the TRANSFER POINT.
§ 6 Booking process
6.1 The data of the end customer transmitted by the TRAVEL BROKER to CD regarding the booked TRAVEL SERVICE, in particular name, date of birth, address, credit card details, type and scope of the TRAVEL SERVICE that is to be booked (“Booking Data”), will be compared to the TRAVEL DATA of the SERVICE PROVIDER electronically and checked for free contingents.
6.2 If CD is aware that the TRAVEL SERVICE that is to be booked is available CD will act as an intermediary to send the reservation of the end customer to the SERVICE PROVIDER and will inform the SERVICE PROVIDER hereof by a reservation confirmation.
6.3 With the sending of the reservation confirmation to the SERVICE PROVIDER the intermediary service by CD from the contract of use and from these AGB will have been fulfilled. The SERVICE PROVIDER has to ensure himself that the TRAVEL SERVICE for which CD acted as an intermediary is reserved in his company. CD does not owe a reservation at the SERVICE PROVIDER.
6.4 The contract concerning the TRAVEL SERVICE will be exclusively concluded between the end customer and the SERVICE PROVIDER. CD is not responsible for contractual terms and conditions, which the SERVICE PROVIDER lays down for the TRAVEL SERVICE towards the end customer or the TRAVEL BROKER. This shall in particular apply to prices, booking conditions or the actual availability of the TRAVEL SERVICES on site.
§ 7 Consideration for the use of the CRS
7.1 The consideration for use of the software as well as of the CRS is stipulated in the CONTRACT OF USE.
7.2 Further fees can be incurred for services of third party providers, which if applicable will be settled directly by the respective third party provider. This relates for example to fees for online payment services.
7.3 CD reserves the right to change the considerations for the use of the CRS or the software at all times at its reasonable discretion. The SERVICE PROVIDER will be informed hereof in a text form at least one month before the change. In the event of a change in the consideration outside of the limits of reasonable discretion the SERVICE PROVIDER can terminate the contractual relationship extraordinarily with a period of notice of seven days.
§ 8 Consideration for the intermediary service
8.1 CD expressively adverts the SERVICE PROVIDER to the fact that by fulfilment of the service by CD according to §§ 6.1 to 6.3, the TRAVEL BROKERS may have an entitlement against the SERVICE PROVIDER for each TRAVEL SERVICE booked for a remuneration in the form of a commission (the “Booking Commission”). The BOOKING COMMISSION is only be stated by the respective TRAVEL BROKER and is recorded in the CRS. Neither CD has any bearing on the BOOKING COMMISSION, nor is it liable for its legal cause or amount agreed.
8.2 The BOOKING COMMISSION will only be payable to the extent as the end customer has also actually made a payment to the SERVICE PROVIDER.
§ 9 Obligations of the Service Provider
9.1 The SERVICE PROVIDER is personally and exclusively responsible for all activities in connection with his user account at CD. He always has to keep the TRAVEL DATA entered in the CRS up-to-date.
9.2 The SERVICE PROVIDER undertakes to report function failures, interferences or impairments to the software or the CRS without delay and as precisely as possible to CD. If the SERVICE PROVIDER fails to make such a report, CD will not assume any liability for the damages thus suffered by the SERVICE PROVIDER.
9.3 In the interest of the end customers CD would like to make standard conditions for the cancellation of the TRAVEL SERVICES available. The SERVICE PROVIDER undertakes to grant the following conditions for the cancellation for the TRAVEL SERVICES offered by him:
– up to one week before the start of the first day of the TRAVEL SERVICE free cancellation
– from one week before the start of the first day of the TRAVEL SERVICE 100% of the total price
CD is entitled to amend the foregoing conditions for the cancellation of the TRAVEL SERVICES in his reasonable discretion.
9.4 Any amendments to the aforesaid cancellation conditions after an effected booking is prohibited.
§ 10 Support by CD
10.1 CD shall offer support and consultancy services with regard to the software, the website or the CRS to the SERVICE PROVIDER for each support case.
10.2 A “Support Case” exists if the software or the CRS does not fulfil the functions as per contract for its respective use.
10.3 If the SERVICE PROVIDER reports a support fall then he has to send an as far as possible detailed description of the respective interference to function to CD in order to enable an as far as possible efficient troubleshooting. The report has to be submitted by e-mail to email@example.com. The processing of support cases shall only be carried out by CD within the office hours from Mondays to Fridays respectively from 9:00am to 5:00pm.
10.4 CD shall not be liable for damages of the SERVICE PROVIDER, which were suffered due to a late report of a support case.
§ 11 Copyrights and rights of use
11.1 The SERVICE PROVIDER hereby guarantees towards CD by way of an independent guarantee promise, irrespective of fault, within the meaning of an independent contract that he is the originator of all TRAVEL DATA entered in the CRS, in particular of the texts, photos, illustrations, descriptions, presentations and videos (hereinafter the “Works”) or that he has an exclusive and unlimited transferrable right to the WORKS not limited with regard to location, time and contents for the use, reproduction, transmission, translation, editing and distribution.
11.2 The SERVICE PROVIDER shall hereby indemnify CD from all claims of third parties, no matter whether known, unknown, existing or in future, which result or may result from the inaccuracy of the guarantee submitted under Subclause 11.1.
11.3 The SERVICE PROVIDER grants CD to all WORKS within the meaning of Subclause 11.1 the exclusive and transferrable right, not limited with regard to location and time and contents, for the use, reproduction, transmission, translation, editing and distribution.
11.4 Apart from the right of use according to Subclause 11.3 this contract shall include the following exclusive secondary rights:
11.4.1 the right to the reproduction and distribution of the WORKS or parts thereof in all forms;
11.4.2 the right to use the WORKS or editing of the WORKS in one of the types of use as stated in this contract;
11.4.3 the right of the reproduction and distribution of the WORKS or parts thereof by using digital storage and playback media, irrespective of the technical equipment and including all digital or interactive systems (e.g. CD-ROM, CD-I, E-book and other forms of electronic publishing);
11.4.4 the right to feed the WORKS in full or in part into electronic databases, electronic data networks, telephone services, etc. and to store these and by means of digital or other storage and transmission technology to make these available to a multitude of users to the extent that these can receive the WORKS or parts thereof following a respective individual call at short notice by means of a computer, mobile phone and/or other devices including all transmission channels (cable, radio, microwave, satellite) and all processes (GSM, UMTS etc.) as well as including all protocols (e.g. TCP/IP, http, WAP, HTML, XML etc.);
11.4.5 the right to archive the WORKS in a physical or non-physical form, to record in collections and/or databases and to permit third parties the access to the WORKS, no matter in which form;
11.4.6 the right to edit and re-design the WORKS and/or to have these edited and re-designed, in particular the right to change, further develop the WORKS and to connect these with other contributions and works, to stipulate titles, to digitalise the WORKS, to underlay the WORKS with texts no matter of which contents as well as the fit the WORKS with interactive elements, in particular to underlay the image reproduction with hyperlinks as well as to evaluate these thus edited versions according to the rights of use granted in this contract;
11.4.7 the right to use the WORKS or editing of the WORKS in the scope of the granted rights, also free of charge, by full or partial playback, in particular in the Internet, for advertising for CD or third parties against payment or free of charge;
11.4.8 the right to distribute and publish the WORKS via all distribution channels;
11.4.9 the right to use the WORKS for own or third party advertising or marketing measures in the scope as granted in these AGB;
11.4.10 the right to grant licences for the exercising of the secondary rights under 11.4.1 to 11.4.9.
11.5 The SERVICE PROVIDER shall also assign rights to CD in view of the WORKS to types of use that are unknown at the time when the contract is concluded.
11.6 CD can assign the rights granted according to this AGB in full or in part to third parties, without the consent of the SERVICE PROVIDER being necessary in this respect.
§ 12 Data protection
12.1 CD shall comply with the statutory data protection provisions.
12.2 If and insofar as the SERVICE PROVIDER processes or has processed personal data on the IT systems, for which CD assumes the technical responsibility, he has to inform CD accordingly. CD shall not act as an order data processor. CD shall make all information concerning the collection, processing and storage of personal data by its systems available in the Privacy Statement.
§ 13 Disclaimer
CD shall not be liable for the proper fulfilment of the contract concluded between the end customer and/or the TRAVEL BROKER and the SERVICE PROVIDER, even if this contract has been concluded with the aid of the CRS operated by CD.
§ 14 Limitation to liability
14.1 The liability of CD for all damages, no matter for what legal grounds, including illicit act, more or less contractual obligation, contract or warranty, is excluded, insofar as the damages were not caused (i) by a culpable breach of duties which are essential for the contract by CD in a manner that jeopardises the contractual purpose, (ii) by a culpable injury to life, the body or the health or (iii) by gross negligence or wilful intent on the part of CD, in fulfilment or on the occasion of the services.
14.2 If CD is liable according to § 14.1 (i) for the culpable breach of duties which are essential for the contract, without a case of gross negligence or wilful intent, the total liability of CD is limited to those damages and such a scope of damages, the occurrence of which CD could typically foresee according to the circumstances known to it upon conclusion of the contract. In cases of liability according to § 14.1 (ii) no liability will exist of CD for indirect damages, consequently damages owing to defects or missed profit.
14.3 If CD is liable according to § 14.1 (ii) for gross negligence or wilful intent of employees or authorised agents that are not bodies or executives of CD, the total liability of CD is also limited to those damages and such a scope of damages, the occurrence of which CD could typically foresee according to the circumstances known to it upon conclusion of the contract. In the cases of this § 14.3 no liability will exist of CD for indirect damages, consequential damages due to defects or missed profit.
14.4 In the cases of § 14.2 and § 14.3 the total liability of CD is limited to EUR 10,000. Claims for damages shall become statute-barred one year after the time, at which the SERVICE PROVIDER has learned of the damaging event. This shall not apply to claims from illicit act.
14.5 The exclusion or the limitation of the liability for damages according to the aforementioned regulations shall also apply to possible claims against employees or authorised agents of CD.
§ 15 Contractual term and termination
15.1 The CONTRACT OF USE has a term of 36 months. The term of the contract shall be extended automatically by respectively one further year if the SERVICE PROVIDER does not terminate the CONTRACT OF USE with a period of notice of two months as of the respective end of the contractual term.
15.2 The rights concerning the extraordinary termination for good cause shall remain unaffected. Good cause for an extraordinary termination by CD shall exist in particular if the SERVICE PROVIDER, despite a warning, does not provide his service within two months since its maturity. If CD terminates the CONTRACT OF USE extraordinarily for good cause, the SERVICE PROVIDER has to pay the agreed remuneration minus the expenses saved by CD until the end of the respective contractual term.
15.3 Declarations of termination shall require a written form in order to be valid (scanned document with signature by e-mail is sufficient).
§ 16 Copyright
The parts of the CRS operated by CD are subject to the copyright and all property rights.
§ 17 Written form
Amendments and addendums to the CONTRACT OF USE have to be carried out in a text form. This shall also apply to the change or supplementation of this written form clause.
§ 18 Severability clause
Should one of the provisions of these AGB or the CONTRACT OF USE be or become invalid or unworkable in full or in part or feature loopholes, this shall have no effect on the validity and workability of the other provisions of the AGB or the CONTRACT OF USE. The respective invalid or unworkable provision is to be replaced by that valid and workable provision that is agreed and which shall as far as possible correspond with the commercial sense and purpose of the invalid or unworkable provision. The parties hereby agree – with the knowledge of the judgement of the Federal Court of Justice of 24 September 2002, File no. KZR 10/01 – that by this severability clause not merely a reversal of the burden of proof is to be achieved, but rather it is to be agreed hereby now already that for the event of the invalidity of individual clauses the other parts of the AGB or the CONTRACT OF USE shall continue to be valid. In the event of loopholes that provision is to be agreed, which shall correspond with that which would reasonably have been agreed according to the commercial sense and purpose of the CONTRACT OF USE and this AGB if the matter had been considered from the start.
§ 19 Choice of law; place of jurisdiction
19.1 The law of the Federal Republic of Germany shall apply to the CONTRACT OF USE and this AGB under the exclusion of its International Private Law and the UN Convention on Contracts for the International Sale of Goods (CISG).
19.2 The place of jurisdiction, insofar as an agreement in this respect is not excluded by mandatory statutory provisions, is Berlin, Germany.