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- protel hotelsoftware GmbH, Dortmund, Germany
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General Terms and Conditions for licences, goods and services from protel hotelsoftware GmbH, Dortmund, Germany
1. Sphere of application
These terms and conditions shall apply for the supply of software, hardware and other products (contractual products), maintenance work and all other goods and services provided by protel hotelsoftware GmbH (protel) to hotels and other clients (clients), provided that no agreements are made to the contrary between protel and the client in the licence, maintenance agreements or other contract (contract). Any terms and conditions which may possibly be used by clients shall only apply in those cases in which they are expressly agreed by protel.
protel shall abide to written offers for three weeks. A delivery or performance obligation on the part of protel shall only materialise once the client has expressly accepted the offer. Delivery dates shall likewise only be binding, if they have been expressly named in the offer.
3. Price and fees
The prices and fees stated in the contract are exclusive of Valued Added Tax (VAT) and do not include any expenses such as the costs for materials, carriage, travelling expenses or managerial costs; these are to be reimbursed separately. In so far as the contract provides for remuneration to be paid on a time-related basis (hourly or daily rate), the actual time taken shall be instrumental when raising the invoice. Times stated in offers shall be regarded as estimates. For maintenance and other work by protel not mentioned in the contract, the client shall pay for the time taken by the staff assigned by protel in accordance with the protel price list valid at that time plus expenses and VAT. This shall apply in particular for adjustments to installation work on contractual products including networking if the installation work was not carried out by protel, whilst the client shall also have to pay for availing himself of the telephone support service he uses as this is not included in the contract. In the event of being in default with payment, the client shall be obliged to pay default interest amounting to 2% p.a. above the base rate charged at that time by the Deutsche Bundesbank (German Federal Bank).
4. Passing of risk, reservation of title
The risk of accidental loss or damage shall pass over to the client when the contractual products are handed over to the client. protel shall retain the title to all contractual products supplied to the client until they have been paid for in full.
The client shall refrain from using, reproducing, distributing, processing and undertaking other conversion work on the protel software products, insofar as this is not expressly permitted by a licence agreement with protel.
The client shall observe all of the applicable export controls of his own country and those of the United States of America should he possibly export the contractual products or technical products forming part of them, even by way of data transmission.
The client shall notify any defects there may be in the contractual products immediately and no later than within two weeks from identifying the defect. If notification is made on time, the defective contractual product shall either be replaced or repaired by protel. Should these measures go wrong, the client shall be entitled to reduce the remuneration paid for the contractual products (licence fee or purchase price) or to cancel the order for the defective contractual products at his choice.
protel, its salaried staff and vicarious agents, shall only have a contractual or non-contractual obligation to reimburse damages in compensation if, and provided that, the damage is attributable to gross negligence or intent. Any compulsory liability which may possibly apply from the aspect of the lack of a warranted quality, a breach of a contractual obligation which is at least attributable to ordinary negligence as well as for any possible legal defects thereof, shall not be affected. protel shall be liable for damage for which it is to blame altogether up to the amount of the system price to be paid in accordance with the order (protel licence fees plus protel service fees), whereby liability shall be limited to the price of the licence, if liability arises as a result, or to the service fees, if liability is in connection with them. The fees in force excluding VAT when the claim materialises shall prevail. protel shall not be liable for a lack of economic success, indirect damages and consequential damages and for damages arising from third party claims with the exception of claims arising from the breach of third party proprietary rights. protel shall only be liable for making good the loss of data if the client has ensured that this data is held ready in the form of computerised data stocks as required by proper data processing standards and can be reproduced at justifiable expense. The external back-up of data stock at the end of each working day is justifiable. protel shall not be liable for damage caused by contractual products in so far as this could have been avoided by checking the work results of the contractual products at regular intervals. Moreover, protel shall not be liable for damage caused as a result of using other programs which can change the data stocks saved in the protel programs. Any compulsory liability there may be under product liability shall not be affected. With the exception of claims for compensation for damages based on illegal acts, claims for compensation for damages shall become time-barred in accordance with the legal provisions (of Germany), and no later than two years from the installation of the protel programs at the client’s premises.
9. Data security
Being a payment card industry-DSS certified company, protel hotelsoftware has designed its products so that they help your business operations maintain PCI compliancy standards. Responsibility for adhering to all of the requirements, however, rests solely with the hotel operator. protel hotelsoftware GmbH will not assume any responsibility for the improper use of the software e.g. data-base fields not intended for the entry of credit card data, nor will it assume responsibility for resulting damages thereof, i.e., loss of PCI certification and/or monetary penalties resulting from rule violations or misuse, and/or third-party liability or damages claims resulting thereof.
10. Information vital to business
protel reserves the right to actively send information via email in urgent circumstances, even if the client has un-subscribed the protel newsletter. These service messages are labeled accordingly and serve the sole purpose of forwarding information vital to business and required by the client in order to maintain operational integrity. (Examples: altered technical requirements, necessary adjustments to the software configuration due to legal changes, status reports concerning the software utilized by the client etc.). The client is therefore obligated to provide a current email address and to inform protel about any changes made to it in a timely manner.
protel shall be entitled to appoint subcontractors for all work to be carried out in accordance with the contract. Insofar as protel gives the name of a maintenance company to the client for maintaining hardware, the maintenance company shall not be regarded as being a vicarious agent of protel.
12. Written form
All amendments and supplements to this contract must be made in writing. This shall also apply for a waiver of rights under the contract or under these terms and conditions including this requirement for written form. All declarations and notifications to be submitted in accordance with the contract shall only be valid if they are in writing.
With the exception of payment promises, the client shall only be entitled to assign the rights under the contract with the prior consent of protel. Consent may only be withheld if there is an important reason for doing so.
Accounts cannot be offset against protel unless they have been declared final and absolute in a court of law or are uncontested. The same shall apply for exercising a right of retention – including a commercial right of retention.
Should one or more provisions of the contract, or of these terms and conditions, be or become invalid or impractical, the validity of the remaining provisions shall not be affected as a result.
16. Choice of Law
The contractual relationships between the parties shall be governed by German law, with the exception of the UN convention on the international sales of goods.
17. Place of Jurisdiction
The courts in Dortmund, Germany, shall be the only courts having jurisdiction for all disputes arising from, or in connection with this contract or these terms and conditions, providing that the client is a registered trader or the place of residence or normal whereabouts of the client at the point in time at which legal action is taken is either not in Germany, or is unknown.