| § 1 | General Regulations |
| 1.1 | The company Triplemind GmbH, Berliner Str. 2, 63065 Offenbach am Main, HRB
B43729, HR Frankfurt am Main ( hereinafter referred to as supplier), offers
accommodation operator and other travel services suppliers (hereinafter
referred to as user) within the limits of the contract of services the
possibility to use permanently its electronic intermediation of
accommodations on the provided online-marketplaces according to the
specifications of the terms and conditions. |
| 1.2 | These terms and conditions exclusively contain the conditions that are
applicable to the conditions that were agreed between the supplier and the
user for the supplier offered services. Agreements which do not comply with
these terms and conditions are only applicable if the supplier confirms them
in written form. This is also necessary when the supplier knows the
user´s conflicting or deviant terms and conditions but performs his
services without any reservation. With the admission accordant to §
3 the user accepts the terms and conditions as definitive. |
| 1.2.1 | Changes of these terms and conditions will be communicated to the user by
the supplier in written form, per fax or per e-mail. If the user does not
object such changes within 4 weeks after the message has come to his
attention the changes will be considered as agreed. In case the terms and
conditions have been changed the user will be informed separately about his
right of objection and the legal consequences of a silence. |
| § 2 | Platform operators´ services |
| 2.1 | The marketplace is a platform for offerers of services according to the
branch of tourism. The marketplace has a integrated, automatic system that
transmits information in order to simplify the communication between user
and the end customer as well as wide functionalities to administrate and
control the particular contracts. |
| 2.2 | The offerers´ services include amongst others |
| 2.2.1 | preparation of the possibility to use the marketplace after the admission
accordant to § 3; |
| 2.2.2 | enabling of presentations and contract conclusions on the marketplace
through an announcement that has been initiated by the user according to
§ 4; |
| 2.2.3 | Creation of the possibility of information or communication between the
users and the end customers; |
| 2.2.4 | Advisory service and assistance service for the user after separate
agreement with the supplier. |
| 2.2.5 | The supplier guarantees the server´s availability of 95 % annual
mean. Hereof excluded are times when the server is not available through the
internet because of a technical or an other problem that is out of the
supplier's sphere of influence (act of God, third party default). The
supplier is allowed to restrict the services if security of the netserver
operator demands the maintenance of the web integrity in particular to avoid
grave breakdowns of the wed, the used software or the stored data. |
| § 3 | Admission and access to the marketplace |
| 3.1 | Precondition for the use of the marketplace is the supplier´s
admission. The marketplace is only available for such accommodation
operators and other suppliers of travel services who perform their services
more than occasionally or just do it privately (contractor according to
§ 14 BGB) and who are totally contractually capable. A claim to
admission or use of the marketplace does not exist. |
| 3.2 | The user has to name his company data when he applies for the admission. The
admission application will be accepted per affirmation answer, per e-mail or
per fax. By acceptance will be concluded a service contract between the
supplier and the user for an indefinite time which accords to these terms
and conditions. |
| 3.3 | If the users´ data change after the registration he is obligated to
adjust the statements immediately for the supplier. |
| 3.4 | The user is responsible for the truth and the completeness concerning the
statements he did during the admission application according to §
3.2 and towards other marketplace users. He is obligated to inform
immediately the supplier about all changes in the future. |
| 3.5 | The supplier is authorized to withdraw the admission to a user or to block
the access if there is probable cause that he broke the terms of use. The
user can avert these measures if he is able to proof qualifiedly the
opposite and bears the costs. |
| 3.6 | All logins are individualized and may only be used by the authorized user.
The user is obligated to keep the login and the password a secret and to
keep it safe in an accurate way from a third party´s access and to
prevent fraudulant use and loss. The user has to communicate immediately the
supplier if there is suspicion that a third party is abusing it. As soon as
the supplier is informed about the unauthorized use he will block the
unauthorized access. The supplier reserves the right to change the
user´s login and password; in such a case the supplier will
communicate it immediately to the user. The user is responsible for the
costs which were caused by a third party who used the user´s access
identification. He is liable towards the supplier if he does not keep the
duties and liberates him from costs or third party´s claims, which
were caused by violating the asforsaid duties. |
| § 4 | Prices, payment practices |
| 4.1 | If the supplier´s performance is based on an offer with costs the
compensation that has to be paid by the user depends on the current price
condition which are visible on the marketplace. |
| 4.2 | The supplier is allowed to arise the compensation once a quarter. The
user´s acceptance is necessary. The acceptance is seen as given if
the user does not object the arise of price in the space of 4 weeks after
receiving the notice of change. The supplier assumes responsibility to
inform the user with his notice of change about the consequences of
refraiming an objection. |
| 4.3 | The amount invoice is payable in the space of 10 man-days after receiving
the bill. Concerning the consequences of default the legal rules are
applicable. |
| 4.4 | Unless otherwise agreed are the prices always net prices to which will be
add the legal taxes that are payable the day the bill is received. |
| 4.5 | The ordering party can only charge up a claim against the
supplier´s claim if it has not been disputed or it already has been
declared legal. |
| 4.6 | The cash discount can only been taken if it has been a separate written
agreement. |
| 4.7 | The user agrees with the storage of the billing data for later documentation
and/or for the legal due of saving. |
| § 5 | Contract conclusion on the marketplace |
| 5.1 | User have the possibility to offer services to the end customers. These
offers are not legally binding in terms of § 145 BGB but only an
invitation to make an offer (invitatio ad offerendum) unless otherwise
agreed. |
| 5.2 | ontract conclusions about the user´s offert services happen only in
user/end customer relation without the supplier´s
participation. |
| 5.3 | The transaction of the contracts that were concluded on the marketplace is
only business between the particular user and the end customer. The supplier
does not guarantee the fulfillment of a contract that has been concludet on
the marketplace and is not liable for defects in quality and in title of the
offert service. The supplier has no duty to make sure that the contracts
between the users will be fulfilled. |
| 5.4 | All declarations of intent that were done after using the particular login
of a user do affect for or against the user. This does not happen if the
declaration recepient knows about the absence of the right to act for the
user. |
| 5.5 | No responsibility is taken for the correctness of the true identity and the
user´s power of disposal. If there are any doubts the contracting
parties have to inform themselves in an way about the true identity and the
power of disposal of the other contracting party. |
| 5.6 | The supplier reserves the right to change the content and the structure of
the platform and to change or to expand the corresponding user interface if
the fulfillment of the purpose is not or not considerably affected. The
supplier will inform the user of the marketplace in conformity about the
changes. |
| § 6 | The users´ duties |
| 6.1 | An announcement may not take place if |
| 6.1.1 | specifications are so incomplete that matter and price can not be
qualified; |
| 6.1.2 | the announcement, the offer or the realization of the contract, according to
the particular intented contract applicable legal system, would violate laws
and regulations, licensing orders or contra bonos mores (inmoral contract).
The supplier is authorized to eliminate such an announcement from the
marketplace. |
| 6.2 | Accommodations or services which can only be offered if there is a lawful
certification, may only be offered or asked for on the marketplace if the
exigence of the certification is named on the announcement and the service
only takes place in exchange for the lawful exigenced certifcation. |
| § 7 | The supplier´s liability |
| 7.1 | The supplier is only liable unlimited for intent and gross negligence, for
simple negligence only if contract essential duties or life, body or health
have been violated. The liability for consequantal loss is limited to the
amount of the conventionary payment in case of simple negligence, except the
case that life, body and health have been injured. |
| 7.2 | The supplier is not liable for failures intrasystem the grid-type network he
is not to blame for. |
| 7.3 | The supplier is only liable for the loss of data according to the aforesaid
passages if such a loss had not been preventable by adequate measure of data
saving on the part of the user. |
| 7.4 | The liability does not extend to disturbances of the use according to
contract of services which have been rendered on the marketplace and have
been caused by the user because of an inappropriate or wrong usage. |
| 7.5 | As far as there is an opportunity through the marketplace to transmit to a
database, to websites, third party services etc., for example through
setting links or hyperlinks the supplier is not liable either for
accessibility, the continued existence or security nor for their content.
Above all does the supplier not be liable for their legality, correctness in
respect of intent, completeness and topicality. |
| 7.6 | The supplier´s liability according to § 7 THK is limited
in the following way: Does the supplier violate culpably the law of
telecommunication or other executive order laws that have been legislated
because of this law or official order of a regulatory authority for
telecommunication and post and does the prescription or the obligation
purpose the security of the ordering party the liability is limited to a
financial loss of 12.500 €. The supplier´s liability
towards all aggrieved parties is limited to 10 million Euros, for each
damage causing event. If the compensations to which many people are entitled
because of the same event exceed the rate ceiling, the compensation will be
reduced proportional as the total of all entitlements of damages are
proportional to the rate ceiling. The limitation of liability of the amount
is not to apply if the damage has been caused intentionally. |
| 7.7 | The asforsaid limitation of liability are basically applicable in favour of
employees, representatives and auxilary persons of the supplier. |
| § 8 | Outside contents, viruses |
| 8.1 | The users are not allowed to put contents (for example by links or frames)
on the marketplace which violate statutory provisions, official directives
or morality. They are neither allowed to announce contents with which they
impinge upon a third party right, in particular copyrights, industrial
property rights, utility patents and design rights. |
| 8.2 | TThe supplier does under no circumstances adopt foreign contents, unless to
use the contents for own purposes according to § 10.7. |
| 8.3 | The supplier reserves the right to block foreign contents if they are liable
to prosecution because of applicable laws or if they shall obviously suit
the purpose to prepare a criminal act. |
| 8.4 | The user will indemnify the supplier from all claims which third parties
assert against the supplier due to abusing their rights or violation of the
law which were caused by setting the offerts and/or contents. In this regard
the user has to bear the expenses of the supplier´s defence
including all court costs and legal fees. |
| § 9 | Other users´ duties |
| 9.1 | The User is obligated, |
| 9.1.1 | to arrange and to maintain the required data saving during the whole
contract duration. This relates essentially to the careful and religiuosly
handling of logins and passwords; |
| 9.1.2 | to communicate the supplier immediately the technical changes in his area
which can disturb the service provision or the supplier´s
marketplace security. |
| 9.1.3 | to participate in clarification when third parties attack the marketplace,
as far as necessary. |
| 9.2 | The user obligates himself to fail to do all measures which endanger or
derange the function of the marketplace and not to access data to which
access he is not entitled. He also has to exercise with all reasonable
carefulness to care that his information he send through the marketplace and
set data are not afflicted with any viruses, worms or Trojans. The user
obligates himself to make up for the damages which were caused by ignoring
these duties and furthermore to indemnify the supplier from all third party
claims including the legal fees and the court costs, which they assert
against the supplier because of ignoring these duties. |
| § 10 | Data security and privacy policy |
| 10.1 | The supplier´s server is secured according to the prior art, in
particular by firewalls; but the user knows that there is a risk for all
parties that on submitted data can be bugged in the transmission route. This
does not only count for the exchange of information through e-mail which do
leave the system but also for the integrate news system and all other kinds
of data transmissions. For this reason the data confidentially for the data
transmitted through the marketplace can not be guaranteed. |
| 10.2 | The user agrees to the supplier´s right to retain information and
data about the process of business transactions and the user´s and
end customer´s behaviour during the transactions in an anonymous
way and to use them only in this anonymous way for marketing functions, for
example for creating statistics and presentations. |
| 10.3 | The supplier is entitled to work on the users´ data which he got in
connection with the business connection and to retain them during this
contract runtime by considering the specifications of the replicable privacy
terms. In detail does the user agree to that the supplier |
| 10.3.1 | retains and works with the particulars the user gave him in connection with
the admission application concerning company data, bill data, the
user´s contact person and corresponding updates which the user
communicated. |
| 10.3.2 | retains the users´ data which he entered into the marketplace under
independent administration in connection with the wished company´s
representation in the retail sector and makes them available in the public
and close area of the marketplace for other registered and not registered
users; |
| 10.3.3 | retains the eventually during the transaction process used personal data
and transmits them to other users and makes them available for registered
and not registered users; |
| 10.3.4 | retains non personal data concerning the transaction content and transmits
them to other users and makes them available for registered and not
registered users. |
| 10.4 | Over and above the mentioned use other use of personal data requires the
user´s separate agreement. The user is authorized to cancel his
agreement he gave according to § 9.3 anytime as far as he agreed
hereby to the use of the personal data. |
| 10.4.1 | The supplier will by the way handle confidentially all data which concern
the user and were marked by him as confidential and only use them in line
with these terms of use. The supplier reserves the right to diverge
therefrom if he has to releave the user´s data because of legal or
official directives. |
| 10.4.2 | With the admission according to § 3.2 does the user guarantee the
supplier and all other users that concerning the data which were transferred
the exigence of the data privacy has been followed by the user and
indemnifies the supplier from all kind off claims, even those concerning
public law. |
| 10.4.3 | With the admission according to § 3.2 the user grants the supplier
the right to use the contents the user set on the page, particularly
pictures and graphics on an other place of the marketplace for his own
function. This right is not exclusively, not temporary, negotiable and in
the content unlimited. |
| § 11 | Assignment and setoff |
| 11.1 | A partly or total subrogation of the users´rights from the contract
with the supplier to a third party is impossible. |
| 11.2 | The user is only entitled to setoff against the supplier with undoupted or
legally binding counter claims. |
| § 12 | Contract duration |
| 12.1 | As far as the offer which underlies the contract does not arise something
different will the contract that underlies the terms of condition be
concluded for a duration of 12 months. It begins with the admission by the
supplier according to § 3. |
| 12.2 | The contract will be renewed for 12 months if it has not been terminate
before under observance of one month period of notice. The right to the
extraordinary notice according to § 12.3 remains unaffected. |
| 12.3 | Each party has the right to terminate the agreement without observing the
period of notice for an important reason. An important reason for the
supplier is in particular: |
| 12.3.1 | the offence of the regulations of the terms and conditions by the user,
which has not even after a deadline been eliminated. |
| 12.3.2 | the user´s act of tort or the attempt, for example fraud. |
| 12.3.3 | default payment over more than 6 weeks for the user´s duty of
payment according to 3.2. and 3.3 |
| 12.3.4 | constant operational disturbances as result of God act which is out of
control of the supplier, like for example natural disaster, fire,
independent of negligence breakdown of the mains. |
| 12.4 | In case of a from the supplier expresses the cancellation he is entitled to
demand an amount of 75 % from the sum of all hires, which the user had to
pay during the contract duration and simultaneous cancellation if the user
does not proof that the supplier did not suffer any damages or the real
damage is essentially lower than this amount. |
| 12.5 | Terminations of agreement must be in written form. |
| § 13 | Applicable law, jurisdiction, severability clause |
| 13.1 | The law of the Federal Republic of Germany is applicable to the exclusion of
UN-Convention of Contracts for the International Sale of Goods - CISG. |
| 13.2 | Jurisdiction for all legal disputes is Offenbach am Main. The supplier is
also authorized to file a suit at the user´s natural forum. |
| 13.3 | If there are or become several regulations of these terms of use invalid
and/or they are not compatible to the legal arrangements the rest of them
remains hereby valid. The invalid clause will be replaced amicably by the
parties to the contract through a clause which comes nearest to the economic
purpose of the unvalid clause in an operative way. The asforsaid regulation
also is accordantly applicable to loopholes. |
| | Created by the legal practitioner Dr. Tim Becker, lindemannpartner.de |