§ 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”).
1.4 The CRS may be provided by CD in way of pooling the TRAVEL SERVICES in holiday packages towards SERVICE PROVIDERS as well as single services towards TRAVEL BROKERS.
§ 2 Scope and conclusion of contract
2.1 This Framework Agreement (hereinafter as: “AGB”) shall apply to all contracts between CD and the TRAVEL BROKERS, of which the object is the 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 TRAVEL BROKER are and will not become included in the CONTRACT OF USE.
2.3 The CONTRACT OF USE shall only be concluded between CD and the TRAVEL BROKER 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 written form. For this purpose the TRAVEL BROKER may demand the CONTRACT OF USE as a form or individually negotiated document from CD or as download on the WEBSITE. The TRAVEL BROKER offers the conclusion of the CONTRACT OF USE vis-à-vis CD by filling the form or the document and transmitting it to CD. The transmission may be done via post, telefax or e-mail (as scanned document).
2.5 The acceptance of the offer will be confirmed by CD via post, telefax or e-mail (as scanned document).
§ 3 Contents of the Service
3.1 Content of the service by CD under the CONTRACT OF USE is the provision of an electronic based platform for the conclusion of contracts between the SERVICE PROVIDERS and the TRAVEL BROKERS. agency of TRAVEL SERVICES vis-à-vis costumers shall neither subject to this AGB nor to the CONTRACT OF USE.
3.2 Provided nothing else is agreed between the Parties in this AGB, CD is neither direct provider or organiser of TRAVEL SERVICES, nor responsible for contractual conditions of the SERVICE PROVIDERS or for other conditions with respect to the TRAVEL SERVICES. In particular, CD do not act as partner, trustee, representative or subcontractor of distributors, the TRAVEL BROKER or the SERVICE PROVIDER. Neither CD, nor the respective operator of the information-technologically based reservation system (“Reservation System Operator”) is responsible for the fulfilment of the agreements intermediated by CD.
§ 4 Intermediation Process
4.1 The SERVICE PROVIDER transmits 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. CD collects and stores the TRAVEL DATA by way of an aggregator software.
4.2 The TRAVEL BROKER may be able to have access to the TRAVEL DATA provided by the SERVICE PROVIDER without the conclusion of the CONTRACT OF USE. This possibility shall not constitute any claim to the booking of TRAVEL SERVICES.
4.3 The TRAVEL BROKER has no claim to the provision of certain TRAVEL DATA. The TRAVEL BROKER undertakes to ensure himself that the TRAVEL DATA stored by CD can be read out. CD does not otherwise assume any liability by complying with the regulation of § 9 for damages, which are suffered by the TRAVEL BROKER due to a false or incomplete transmission of data to the TRAVEL BROKER.
4.4 The TRAVEL BROKER transmits the data of the customer 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”), via the CRS to the IT-system of the SERVICE PROVIDER.
4.5 If CD or the RESERVATION SYSTEM OPERATOR is aware that the TRAVEL SERVICE that is to be booked is available CD will inform the SERVICE PROVIDER hereof by a reservation confirmation.
4.6 With transmission of the reservation confirmation to the TRAVEL BROKER the obligation of CD under this CONTRACT OF USE and under this AGB is fulfilled. The contract concerning the TRAVEL SERVICE will be concluded between the customer and the SERVICE PROVIDER by transmission of the reservation confirmation by CD.
§ 5 Booking Commission
5.1 By fulfilment of the service by CD according to § 4, the TRAVEL BROKERS may have an entitlement against the SERVICE PROVIDER, Collector Agency or Agency 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 TRAVEL BROKER. The amount of the BOOKING COMMISSION is to be registered with the CRS in a way that the SERVICE PROVIDER has the opportunity to assess the relevant BOOKING COMMISSION prior to each booking. Neither CD has any bearing on the payment of the BOOKING COMMISSION, nor is it liable for its legal cause or amount agreed or its effective payment.
5.2 The TRAVEL BROKER acknowledges and accepts that the BOOKING COMMISSION will only be payable to the extent as the customer has also actually made a payment to the SERVICE PROVIDER.
§ 6 Obligations of CD
6.1 CD is not responsible for contractual terms and conditions, which the SERVICE PROVIDER lays down for the TRAVEL SERVICE towards the customer or the TRAVEL BROKER. This shall in particular apply to cancellation conditions, prices, booking conditions or the actual availability of the TRAVEL SERVICES on site.
6.2 Cancellations of TRAVEL SERVICES by the TRAVEL BROKER on behalf of the customer exclusively have to be made via the CRS or the Service Center of CD; otherwise CD is not liable for costs incurred due to cancellations.
6.3 If a cancellation is declared directly towards the SERVICE PROVIDER, CD is not obliged to give notice to the TRAVEL BROKER about circumstances that are not known by him in a positive sense. This applies in particular to information about possible discrepancies with respect to the time point or the cause of the cancellation.
6.4 If bookings are made by transmitting incomplete, doubtful or obviously false BOOKING DATA or by persons that already did not make use of TRAVEL SERVICES without cancellation (so called NoShows) or already did not pay or did not pay in full invoices of SERVICE PROVIDERS, CD is entitled to reject or cancel the booking in its own discretion. In this case the TRAVEL BROKER has no entitlement to performance of the booking or to the payment of the BOOKING COMMISSION. The TRAVEL BROKER is to be informed about the non-performance of the booking or the cancellation respectively.
6.5 In the interest of the customers CD would like to make standard conditions for the cancellation of the TRAVEL SERVICES available. The SERVICE PROVIDER granted vis-à-vis CD 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. The Travel Broker is prior to each booking obliged to inform himself about possible amendments to the cancellation conditions by assessing the entered data with the CRS.
Any amendment to the aforesaid cancellation conditions after an effected booking is prohibited.
§ 7 Transmitted Data
7.1 All information about the TRAVEL DATA are based on the statements of the SERVICE PROVIDER. CD has no influence to such statements and is not liable for its correctness and/or completeness.
7.2 All prices for TRAVEL SERVICES transmitted by the SERVICE PROVIDERS are actual daily prices and apply for all bookings via the CRS. The prices are exclusively determined by the respective SERVICE PROVIDER. CD is neither responsible, nor liable for the fact, if the transmitted prices include additionally incurred taxes or fees or for certain destinations additional local customary duties such as e.g. tourist taxes or City-Tax. The prices are denominated in Euro.
7.3 CD is not obliged to inform the TRAVEL BROKER about the fact that the customer is not able to make use of the TRAVEL SERVICES due to statutory regulations, in particular, passport, visa, customs, foreign exchanges or health regulations. The TRAVEL BROKER as well as the customer are responsible to comply with all possible regulations on this behalf.
7.4 Prior to the transmission of the BOOKING DATA, the TRAVEL BROKER is obliged to ensure that the customer is comprehensively informed about the payment and cancellation conditions of the SERVICE PROVIDER and that CD is legally entitled to submit the credit card information of the customer towards the SERVICE PROVIDER. By transmitting the BOOKING DATA to CD, the TRAVEL BROKER indicates vis-à-vis CD that he is entitled to such transmission, in particular the transmission of the customer’s credit card data.
§ 8 Disclaimer
CD or the RESERVATION SYSTEM OPERATOR shall not be liable for the proper fulfilment of the contract concluded between the 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.
§ 9 Limitation to liability
9.1 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.
9.2 If CD is liable according to § 9.1 (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 § 9.1 (ii) no liability will exist of CD for indirect damages, consequently damages owing to defects or missed profit.
9.3 If CD is liable according to § 9.1 (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 § 9.3 no liability will exist of CD for indirect damages, consequential damages due to defects or missed profit.
9.4 In the cases of § 9.2 and § 9.3 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 TRAVEL BROKER has obtained knowledge of the damaging event. This shall not apply to claims from illicit act.
9.5 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.
§ 10 Termination
10.1 Provided nothing else is agreed between the Parties, the CONTRACT OF USE may be terminated with termination notice of one (1) month to the end of each quarter. The rights concerning the extraordinary termination for good cause shall remain unaffected.
10.2 Declarations of termination shall require a written form in order to be valid (scanned document with signature by e-mail is sufficient).
§ 11 Copyright
The parts of the CRS operated by CD are subject to the copyright and all property rights. The usage of websites and the CRS operated by CD as well as the therein stored Travel Data is only be permitted in order to make a booking via CD.
§ 12 Written form
Amendments and addendums to the CONTRACT OF USE as well as to the AGB have to be carried out in a text form. This shall also apply to the change or supplementation of this written form clause.
§ 13 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.
§ 14 Choice of law; place of jurisdiction
14.1 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).
14.2 The place of jurisdiction, insofar as an agreement in this respect is not excluded by mandatory statutory provisions, is Berlin, Germany.