1. AREA OF APPLICATION
1.1. These General Business Terms and Conditions ("T&Cs") shall apply for the availment and use of the offers ("offers") provided by zadego GmbH (FN 311496 h), a company based in Innsbruck with the business address Tschamlerstraße 4, 6020 Innsbruck ("zadego GmbH") with regard to the EASYBOOKING product through customers of these offers (the "customers"; every customer and zadego GmbH are together termed the "contractual partners"). The entirety of all the offers provided by zadego GmbH including all software connected with these offers is hereinafter designated as "EASYBOOKING".
1.2. zadego GmbH does not close contracts with consumers in terms of the Consumer Protection Act (KSchG). The customer expressly declares that they shall close the contractual relationship with zadego GmbH for the operation of their accommodation facility as entrepreneur.
1.3. With the closure of this contract acc. Point 2 of these T&Cs, the customer confirms that they have read the T&Cs and understood them, and that they expressly acknowledge these T&Cs. Should contradictions emerge between an individually-made written agreement with the customer and these T&Cs, the individual agreements shall take priority. Should contradictions emerge through other agreements, business terms and conditions or customer conditions, then these T&Cs shall apply exclusively. zadego GmbH acts exclusively as mediator between the customer as the accommodation facility and their guest. We hereby declare that no contractual relationships whatsoever are generated between zadego GmbH and the guest.
1.4. zadego GmbH reserves the right to alter these T&Cs at any time without stating reasons, whereby such alterations must be announced at least 60 days prior to their coming into force on the EASYBOOKING website. In addition, zadego GmbH shall inform customers of such alterations via Email, to the Email address stated by the customer in their order or the last Email address announced by the customer. In case of an alteration to these T&Cs which puts the customer at a disadvantage, the customer has the right to terminate the contractual relationship within 60 days after announcement of the alterations with immediate effect. Once the 60 days have expired, the alterations to the T&Cs shall be considered accepted by the customer, and their right to terminate the contractual relationship shall expire.
2. CLOSURE OF CONTRACT
On reception of the order note/offer completed and signed by the customer at zadego GmbH, the contractual relationship pertaining to the aforementioned shall be formed between zadego GmbH and the customer. After closure of the contract, the customer receives the right to use EASYBOOKING to the conditions stated in these T&Cs. The direct or indirect use of EASYBOOKING through third parties is prohibited.
3. ISSUE OF A LICENSE
On closure of the contract, zadego GmbH shall issue the customer with a simple, non-exclusive, fixed-term license for the availment and use of EASYBOOKING subject to a fee. This use may not be transferred or sub-licensed.
4.1. The remuneration of the license fee by the due date authorises the customer to use EASYBOOKING and to receive “product updates” for the duration of the agreed contractual period from the date of closure of the contract. The basis for the license fee to be paid in advance is the respective current version of the price list, if no deviating individual offer is prepared. The license fee plus VAT to the respective legal sum comprises only the availment and use of EASYBOOKING; the costs of the installation or training are invoiced separately. The respective due date of the fee depends on the date when the contract was closed. In case of automatic contract extension, the respective sum shall be due prior to the start of the new contractual period. The fee information provided by zadego GmbH in the respective valid version shall constitute an integrated component of these T&Cs.
4.2. zadego GmbH must be notified of alterations in the number of customer guest beds without delay. Any related increase in the license fee authorises zadego GmbH to retroactive billing. In case of any related computational reduction of the license fee occurring during the contractual period, zadego GmbH shall not be obligated to repay any (fraction) of the license fee.
5. PRICES/DUE DATE
If nothing to the contrary is agreed, the prices listed in the order note/offer shall apply. Invoices shall be payable within 14 days after the invoice date. Invoicing shall be conducted electronically. This may mean that the customer is obligated to make an advance payment. All prices must be paid in advance in a single sum, unless another method has been agreed on. In case of default of payment, default interest is charged to the sum of 12% p.a. as well as dunning fees and collection charges. If a payment of the invoice sum has been agreed in monthly part payments, the payment of the monthly part payments shall be conducted via SEPA direct debit. To be able to conduct the SEPA direct debit, the customer is obligated to issue an order for the execution of the SEPA direct debit to zadego GmbH. This shall take place – if legally necessary – using an form made available to the customer by zadego GmbH, which is to be signed by the customer. In case of a default on payment of even only part of the sum, or in case the debt collection process fails (e.g. due to insufficient cover in the current account, due to deletion of the current account or due to unauthorised objections by the account owner), zadego GmbH shall be authorised– 14 days after zadego GmbH has informed the customer about the defaulted payment or the failed debt collection – to declare due all outstanding part payments to the end of the respective contractual year without further extensions of time. The customer must bear all costs incurred connected to the debt collection. It is not possible to offset costs against claims towards zadego GmbH. If the customer defaults on payments by at least sixty days, zadego GmbH is authorised to refuse the provision of services.
6. CUSTOMER PARTICIPATION AND PROVISION OBLIGATIONS
6.1. The customer obligates themselves to take all measures without charge and in time and to support zadego GmbH in all measures which are required on the customer’s part for the provision of the services through EASYBOOKING or zadego GmbH.
6.2. In case the setup of EASYBOOKING has been agreed on closure of the contract through zadego GmbH for the customer’s business, the customer is obligated to provide all data and information required by zadego GmbH to set up EASYBOOKING for the customer’s business to the full extent and at the latest 3 weeks subsequent to the associated request by zadego GmbH. If the customer does not provide the necessary information after one request by zadego GmbH, then zadego GmbH shall be authorised to put a “default” instance of EASYBOOKING into operation for the customer. In this case, the obligation for zadego GmbH to set up EASYBOOKING for the customer is rendered null and void. Other contractual obligations, for example the due date of the license fee, shall expressly remain valid in this case.
The customer is obligated to provide exclusively correct data to EASYBOOKING and to enter it into EASYBOOKING. Registration under a pseudonym, an incorrect address or Email address or an otherwise incorrect registration is not permitted. The customer is obligated to keep all entered information updated. zadego GmbH is authorised, but not obligated, to check the accuracy of the information given.
7.1. The customer confirms on entry of the data or content (e.g. photos, images or texts) in EASYBOOKING that they have not violated the rights of any third parties. The customer shall be held liable for the accuracy and legality of the data and contents they have entered. Should zadego GmbH suffer claims by third parties due to such a violation of rights, the customer shall indemnify and hold zadego GmbH harmless. The customer knows that zadego GmbH saves automatic data such as the so-called log files generated during the use of EASYBOOKING, and they hereby declare themselves in agreement with this.
7.2. The customer is obligated to maintain their data records, meaning that the customer shall consistently keep all data entered or made known within the scope of the use of EASYBOOKING updated. Changes to the customer data shall be corrected in EASYBOOKING without delay.
7.3. zadego GmbH is authorised to save, transfer, delete, process, use or block any data which the customer makes directly available to EASYBOOKING or which the customer enters during their use of EASYBOOKING, or which get into EASYBOOKING via an indirect route (e.g. via interfaces from connected external systems such as PMS or booking platforms) inasmuch as this is necessary, taking the customer’s interests and the purpose of this contract or the improvement and further development of EASYBOOKING into account. This concerns the use of data and information within the scope of the current business purposes, and also expressly future business purposes and models. Here the contractual partners obligate themselves to uphold the laws and in particular the applicable data protection regulations. zadego GmbH is in particular also authorised to save and use the customer data independent of the service for advertising, marketing and/or market research purposes. zadego GmbH is also authorised to offer additional products to the customer within the scope of communications between the customer and their guests (the "guests") via Email, which represent added value for the guest within the scope of a possible booking or the request by a potential guest (e.g. additionally bookable products such as travel cancellation insurance, flat rates, events etc.)
7.4. EASYBOOKING represents software protected by copyright. The customer is merely authorised to use for the duration of and within the scope of the agreement made concerning the provision of access to EASYBOOKING. The customer hereby procures a non-exclusive and non-transferable right of use for EASYBOOKING for the duration of the contractual relationship with zadego GmbH.
7.5. The use of the access may exclusively be conducted for the customer’s own purposes. Forwarding of rights and obligations is not permitted without the express consent of zadego GmbH. The customer shall ensure that their access data is carefully stored away. The customer shall receive access to the “Online Academy”, on which learning material for the correct use of EASYBOOKING is provided. Written documentation over and above this service is not part of the scope of services.
7.6. The use of EASYBOOKING requires a state of the art computer system with a functioning Internet access with sufficient data transfer volume. The customer hereby acknowledges that higher requirements shall be placed on the operating system in case of higher quantities of offers and requests, and shall bear responsibility for ensuring that both the hardware and software are equipped accordingly. We expressly state here that the use of Windows XP in accordance with the information from the software manufacturer is not recommended. zadego GmbH recommends the use of Google Chrome; however the customer can use other browsers as long as they permit functionality. Should a browser-based problem occur during correct use, and switching the browser would solve the problem, the customer is obligated to adapt their browser accordingly. A Flash Plugin is required for the respective browser. The customer is obligated to keep all systems up to date and to conduct any retrofits required. The customer obligates themselves to providing a commercially usable virus protection which is sufficient for the purpose and which accords with the latest technological developments. The customer is obligated not to undertake attacks on the functionality EASYBOOKING or to facilitate or promote such attacks (e.g. attempts at hacking, spyware, virus attacks, worms). The customer is obligated to reporting any defects or damage which might affect safety or malfunction-free operation without delay, and to take all measures which make the determination of the defects or damage and their causes possible or which relieve or accelerate the removal of the fault.
7.7. zadego GmbH is obligated to provide EASYBOOKING permanently at their own cost. Whatever the case, this provision shall be conducted permanently (365/7/24). Here an operationally-ready computer system (server hardware and operating system software) and storage space on a virtual server shall be provided. zadego GmbH shall operate and maintain EASYBOOKING and shall ensure connection to the Internet. Here everything shall be done to ensure a continuous provision of services. The constant availability and error-free function cannot be 100% guaranteed for technical reasons.
7.8. zadego GmbH shall make EASYBOOKING available under the aspects of appropriate care and reliability. For technical reasons, however, it is not possible to provide these services without any interruptions, to always generate the required connections or to retain saved data under all circumstances. Here zadego GmbH shall bear no liability unless they have acted with intent or with gross negligence. The other disclaimers or limitations shall remain unaffected. Restrictions or interruptions may occur in cases of force majeure, strikes, limitations to the services of network operators or in case of repair and maintenance work.
8. SUBJECT OF THE CONTRACT (HOSTING/WEBSITE)
zadego GmbH shall provide the customer with a virtual webserver and owes to the customer the attempt to make the data saved by the customer retrievable in accordance with the contract via the network to be maintained by zadego GmbH (designated as a whole as “webhosting services” or as “webserver”). The customer shall have neither material rights to the server hardware, nor the right to access to the rooms in which the server hardware is located. The provider shall guarantee availability 99% of the time on annual average. zadego GmbH is only responsible for availability insofar that any inability to retrieve the part of the network operated by them or the webserver itself is the intentional fault or the fault caused by gross negligence of zadego GmbH. zadego GmbH has the right to commission third parties for the provision of services at any time and to any scope.
9. CUSTOMER OBLIGATIONS (HOSTING/WEBSITE)
9.1. The customer alone shall bear responsibility for the domain itself and for all contents which the customer keeps for retrieval on the webserver or saves. Within the scope of their obligation for maintenance of the legal and contractual regulations, the customer is also responsible for the conduct of third parties, who act as commissioned by them, in particular for vicarious or procurement agents. This shall also apply for other third parties to whom the customer knowingly provides access data to the services and performances of the provider. zadego GmbH is not obligated to check the customer’s webserver for any violations.
9.2. The customer shall obligate themselves to keep the passwords received from zadego GmbH for access purposes strictly confidential and to notify zadego GmbH without delay as soon as they become aware that unauthorised third parties have knowledge of the password.
9.3. The customer obligates themselves to inform zadego GmbH in full and without delay should judicial or extra-judicial claims be made towards them through the use of the services which are the subject of this contract.
10. USE RESTRICTIONS AND THIRD PARTY RIGHTS (HOSTING/WEBSITE)
10.1. The customer must ensure that the Internet presences or data from other customers of , zadego GmbH and the server stability, server performance or server availability are not impaired. In particular, the customer shall not be permitted to operate banner programs (banner exchange, ad-servers etc.).
10.2. The customer is obligated within the scope of the legal regulations, in particular through maintenance of the KSchG (Consumer Protection Act), the ECG (E-Commerce Act) and the Media Act to state the specified information on their website or in EASYBOOKING.
10.3. The contents, saved data and keywords entered into search engines may not violate legal prohibitions, common decency or the rights of third parties (in particular immaterial goods such as brand, name and copyrights). The customer is not permitted to offer or have offered pornographic content and services targeted to obtain profit which have as their subject pornographic and/or erotic contents (e.g. naked images, peepshows etc.)
11. EMAIL RECEPTION AND DISPATCH, PROHITION AND CONTRACTUAL PENALTY FOR “SPAM” EMAILS
11.1. The maximum size of the Emails to be sent via EASYBOOKING and the websites hosted by zadego GmbH is restricted to 10 MB each.
11.2. The dispatch of information and advertising on activities and the range of service offers via Email through the customer to guests are only permitted if the guests have submitted appropriate consent. The verification of a consent for the respective guest acc. § 107 Sub-section 2 of the Telecommunications Law shall be the obligation of the customer.
11.3. zadego GmbH shall provide the customer with data protection provisions for guests which amongst other things include the consent of guests for the transfer of certain data from the guests to zadego GmbH. The customer shall obligate themselves to inform the guests of these data protection provisions. If a guest consents to these data protection provisions, the customer shall obligate themselves to transfer the guest data comprised in the consent to zadego GmbH.
12. DURATION OF CONTRACT, TERMINATION OF CONTRACT
If no deviating contractual period has been agreed in the contract between zadego GmbH and the customer, the minimum contractual period totals twelve months. The customer can terminate the contract, maintaining the period of notice of three months prior to expiry of the contractual period in writing by registered post or by Email without stating a reason. If the contractual relationship is not terminated on time, the contractual period shall be extended automatically by the originally-agreed contractual period. zadego GmbH can terminate the contract, maintaining the period of notice of three months prior to expiry of the contractual period, in writing by registered post or by Email, each to the address stated by the customer in their order, without stating a reason. In case of any misuse by the customer, zadego GmbH shall be authorised to terminate the contractual relationship with immediate effect by registered post or Email, each to the address stated by the customer in their order. Misuse shall include in particular if the customer violates a major provision in these T&Cs or the customer does not fulfil their payment obligations in spite of dunning. The contract termination through the customer prior to expiry of the agreed minimum contractual period is expressly excluded with the exception of premature termination for an important reason.
13. COPYRIGHT LAW
The customer hereby acknowledges that they do not procure ownership rights to EASYBOOKING or any intellectual property contained in it, and that zadego GmbH is the sole owner of the exclusive copyrights for EASYBOOKING. In case of a culpable infringement on the part of the customer, the customer shall be obligated to pay a contractual penalty to zadego GmbH. This shall total half the annual license fee which the customer has to pay acc. Point 4 in these T&Cs. Any claims for damages over and above this by zadego GmbH shall remain unaffected.
14. LIMITATIONS OF USE
14.1. The customer declares themselves in agreement that they shall not rent, lease, sub-license, forward in another manner, change or produce processed versions of EASYBOOKING, adapt EASYBOOKING or parts of EASYBOOKING, or combine, translate, convert, decompile or disassemble it with other software, or permit third parties to do so with EASYBOOKING or parts of EASYBOOKING unless this is intended due to the functionality of EASYBOOKING or if the customer has been expressly authorised to do so through a written declaration by zadego GmbH. In case of disregard of these provisions, the customer shall be held liable towards zadego GmbH for any damages thus incurred.
14.2. Should no express written declaration be submitted on the part of the customer, zadego GmbH shall have the right to mention the customer as a customer and to name them as a business reference. The customer is expressly in agreement that EASYBOOKING personal and company-related data can be collected, saved, processed and transferred within the scope of the legal provisions, if as this is required for the processing of contracts. zadego GmbH shall not be held responsible if third parties succeed in obtaining access to the data and information in an illegal manner. The customer declares themselves in agreement with zadego GmbH sending product-related information and advertising materials. If the customer no longer wishes this service, they can inform zadego GmbH of this accordingly in writing.
15. LIMITATION OF WARRANTY
(a) zadego GmbH guarantees that the function of EASYBOOKING primarily accords with the respective documentation, including the appropriate updates, ReadMe files and the provided online-release notifications (“Changelog”). The documentation concerned or the specifications determined in other documentation shall comprise neither express nor explicit guarantees. (b) The warranty period shall total 12 months from the first use of EASYBOOKING. (c) Within the warranty regulated in this section, zadego GmbH may choose whether to remedy errors, procure replacements, updates or version releases (“subsequent performance” in case of EASYBOOKING defects. Within the scope of the warranty, the customer shall not be able to claim for the replacement of damages or the replacement of futile expenditure. (d) The abovementioned warranty shall not apply if the customer uses EASYBOOKING contradictory to the intended purpose or misuses it, or if the customers uses EASYBOOKING in connection with other products or technologies which have not been determined or approved by zadego GmbH. (e) Should a defect become apparent, this must be reported without delay.
16. LIMITATION OF LIABILITY
16.1. (a) zadego GmbH shall not be held liable for damages, delays or hindrances in performance which lie outside their area of responsibility. (b) zadego GmbH shall not be held liable for damages which can be attributed to unsuitable, unprofessional use or use of the software not in accordance with the intended purpose acc. these T&Cs. (c) With the exception of injury to persons, zadego GmbH shall be held liable only for damages caused with intent or through gross negligence by zadego GmbH. The liability for damages caused by zadego GmbH through simple gross negligence (in terms of gross negligence which is not so severe that one could not expect it from experience of daily life and fair practice) shall be limited to the license fee paid annually by the customer in its scope. (d) zadego GmbH shall bear no liability for direct damages and subsequent damages cause through defects, in particular loss of profit and claims by third parties. This expressly includes doubled room reservations and damages arising through errors in interfaces with third party software. (e) Further liability of zadego GmbH is excluded.
16.2. It is hereby determined that zadego GmbH shall bear no liability for the contents provided by the customer. zadego GmbH shall not conduct any checks on the contents provided or used by the customer or the information provided by third parties or the services from third parties, and shall bear no liability of any kind for their contents and/or their availability and to data transfer errors, even if they fall within the sphere of zadego GmbH, in particular for any related doubled room bookings incurred by the customer. Damages which are caused through access delays or hindrances due to force majeure or due to events which make it much harder or impossible for zadego GmbH to open access to EASYBOOKING, and for which zadego GmbH is not responsible, in particular war, natural catastrophes, fire, strikes, sovereign acts, Internet malfunctions, power supply failures, telecommunications network or data line failures, system failures, network problems or booking errors occurring in the customer’s system shall not under any circumstances be the responsibility of zadego GmbH. Inasmuch as EASYBOOKING refers to information offers by third parties through links, system interfaces or other references, or promotes the services of third party providers, this shall not mean that zadego GmbH has made these contents and services a component of EASYBOOKING. zadego GmbH shall not be held liable for the correctness and completeness of the databases provided and for an incorrect search in the databases. zadego GmbH shall be under no obligation to update, correct or complete the databases.
17. INDEMNITY CLAUSE
The customer shall bear full liability for their entries in EASYBOOKING and the claims resulting from these. The customer shall obligate themselves to holding zadego GmbH, their shareholders, managing director or employees completely indemnified and harmless against claims by third parties, which arise through incorrect, false or untrue entries made by the customer in EASYBOOKING. This indemnification and holding harmless shall in particular apply for claims by third parties resulting from customer violations against these T&Cs.
18. PRODUCT UPDATES
Product updates shall apply as an integrated component of EASYBOOKING and are subject to the conditions in these T&Cs, inasmuch as zadego GmbH has not determined other conditions within the scope of their delivery, download or installation. Accordingly, product updates take the place of or replace already licensed copies of EASYBOOKING. Nothing in these T&Cs shall prevent zadego GmbH from offering modified versions of EASYBOOKING or other products as a new product subject to an additional fee.
19. PLACEMENT OF ADVERTISEMENTS
On request from the customer, zadego GmbH offers, subject to a separate fee and acc. the conditions laid down in a separate agreement, the advertisement of the customer’s holiday accommodation on the online booking platforms of the HomeAway Deutschland GmbH, Baseler Straße 10, 60329 Frankfurt.
The customer may not transfer, assign or sub-license to third parties, included related companies, any rights of use, claims or obligations from the contractual relationship with zadego GmbH without previous written agreement from zadego GmbH.
21. SEVERABILITY CLAUSE
Should individual provisions in these T&Cs be declared in court acc. applicable law completely or partially ineffective, null and void or unenforceable, the remaining T&Cs shall not be affected, and the rest of the provisions in the T&Cs shall remain effective. The same shall apply for any gaps in the T&Cs. Instead of the ineffective provision, a provision shall be used which is closest in economic terms to the provision which has been rendered ineffective. The same shall apply for any existing gaps.
22. APPLICABLE LAW AND PLACE OF JURISDICTION
These T&Cs and all disputes which may arise from or with relation to the contractual relationship between zadego GmbH and the customer shall be exclusively subject to Austrian Law with the exception of references to foreign law and with the exception of the IPRG (International Private Law Act) and the UN Sales Law. The exclusive place of jurisdiction for all disputes which may arise from or with relation to the contract is Innsbruck.
Changes, supplements or the annulment of these T&Cs or any other agreements between the contractual parties shall require the written form. This shall also apply for complete or partial changes to or annulment of this written form requirement.