General Terms and Conditions
Last update: September 6th, 2022
The following General Terms and Conditions (“GTC“) govern the contractual relationship between resmio GmbH, Katzwanger Straße 150, 90461 Nuremberg, Germany (“resmio”) and all contractual partners (“Customers”) of resmio’s online reservation and management system (“Application”). resmio’s Customers are exclusively entrepreneurs in the sense of § 14 BGB (German Civil Code) and not consumers in the sense of § 13 BGB.
resmio enables customers to (i) offer reservations for store locations through the use of dependent web applications (“Widget”) (ii) accept orders for on-site pick-up or deliveries to the guest, ensure contactless taking of orders at the table (iii) enable the sale of tickets or vouchers.
The services of resmio include the provision of the widgets, which can be accessed by the contractual partner of the customer (“Guest”) via internet connection.
resmio exclusively transmits reservation requests and orders of the guest to the customer. A contractual relationship for a catering service or the like is exclusively between the customer and the respective guest.
1. Scope of Application
1.1 The use of the application takes place exclusively on the basis of these GTC, the service description and on the basis of the prices shown on the website. This also applies to use from a location outside the territory of the Federal Republic of Germany.
1.2 The validity of deviating, conflicting or supplementary GTC of the customer or a third party is hereby expressly excluded. General terms and conditions of the customer or a third party shall only become part of the contract if and to the extent that resmio has expressly consented to their application. This requirement of consent is valid in any case, especially if resmio accepts the deliveries and services of the customer or a third party without reservation in knowledge of such conditions.
2. Subject matter of the contract
2.1 The use of the application is only available to customers who have accepted these terms and conditions upon conclusion of the contract.
2.2 The subject of the contract is the provision of the application. The application enables the customer to accept reservations and orders via widgets in particular. Furthermore, customers are able to create tickets for events and coupons or vouchers via the ticket and voucher function and sell them to the guest. A reservation request by a guest via the widget or the ticket and voucher function constitutes an offer to conclude a contract (“invitatio ad offerendum”) between the guest and the customer.
2.3 The scope of the application can be changed by resmio at any time.
2.4 resmio will advise the customer within the available capacities regarding the use and integration of the application and provide technical support.
2.5 resmio distinguishes between the tariffs ULTIMATE, PREMIUM and BASIC.
2.6 resmio also distinguishes between additional services (“Add-On”), which are booked separately and can initially be used free of charge for 30 calendar days (“Test Phase”). During the test phase, booked add-ons can be cancelled separately. After expiry of the test phase, the add-ons shall be transferred to the respective tariff; separate termination of the add-ons shall not be possible thereafter.
2.7 In addition, there are always chargeable services (“Services“) which also include special conditions, do not correspond to the Add-Ons and can be optionally booked in the PREMIUM Tariff or in the ULTIMATE Tariff, but can also be cancelled separately according to the type of the respective Service. For details, please refer to the service description. The services cannot be tested separately.
2.8 The customer uses the ULTIMATE tariff plus the add-ons in accordance with the current service description at the time of conclusion of the contract within the test phase. After the end of the test phase, the customer will be downgraded to the free BASIC rate, unless the customer decides to keep the ULTIMATE rate, which is now subject to charges, or to reduce to the PREMIUM rate, which is also subject to charges.
2.9 Within the scope of the BASIC rate, the customer may not add or use any additional add-ons, either free of charge or subject to a charge.
2.10 If the customer opts for the chargeable PREMIUM plan, the customer can add add-ons separately via the customer account. The add-ons can only be used once free of charge during the contractual relationship of the customer with resmio and can also only be cancelled separately during the test phase. The customer can find the concrete contract conditions about free and chargeable tariffs, as well as the contents of the add-ons in the service description and the currently valid price sheet of resmio. Services are always subject to a fee and can be booked in addition to the ULTIMATE tariff or the PREMIUM tariff.
2.11 The customer is solely responsible for the compliance with the applicable data protection regulations towards the guests as a responsible person in the sense of Art. 4 No. 7 of the German Data Protection Regulation (“DSGVO”). resmio processes the thereby generated data as an order processor according to Art. 4 No. 8 DSGVO in conjunction with Art. 28 DSGVO for the customer. For this purpose, the customer must conclude the data processing agreement (“DPA”) with resmio.
3. Contract conclusion, Contract language
3.1 The presentation of goods and services on the website of resmio does not constitute a legally binding offer, but an invitatio ad offerendum according to section 2.2 of these GTC. The customer can make a binding offer to conclude a contract as follows:
- (i) Signing of the application form by the customer and sending it to resmio via e-mail to the respective contact person.
- (ii) Registration of the customer via the website or the app of resmio.
3.2 Immediately after sending the binding offer, the customer receives a confirmation from resmio, which, however, does not constitute an acceptance of the contractual offer. A contract between resmio and the customer is generally concluded as soon as resmio accepts the binding offer of the customer by a separate email.
3.3 A contract between resmio and the customer can also be concluded orally. For this purpose, the customer must also confirm resmio’s verbal offer verbally. The contract conversation is recorded by resmio with the help of the VoIP software “Aircall” in order to document the conclusion of the contract and the content of the contract. After the conclusion of the contract the customer will receive a confirmation by e-mail.
3.4 The language provided for the conclusion of the contract is exclusively German. Translations into other languages serve only to inform the customer. In the event of contradictions between the German text and the translation, the German text shall take precedence.
4. Proprietary Rights and Licences
4.1 resmio grants the customer a limited, non-exclusive, non-transferable, worldwide license to use the application (“simple right of use”) for the duration of this agreement. The same applies to add-ons during the test phase and to the Services. The license is limited to the use of the application for one (1) commercial enterprise of the customer. Additional licenses for the use of the application for several pubs/restaurants can be acquired for a fee. The rights are only granted to the customer as the person responsible for the content of his website and are neither further transferable nor sublicensable without the consent of resmio.
4.2 resmio enables the customer to generate an individual password for the access to the application. The customer agrees to keep this password carefully and not to allow third parties to access the password.
4.3 The customer is obliged to observe the applicable law when using the application and in particular not to violate the rights of third parties.
4.4 The customer is prohibited from any action when using the application that violates applicable law, infringes the rights of third parties or violates the principles of the protection of minors. In case of a violation resmio will block the application for the customer.
In particular, the following actions are prohibited:
- the distribution of viruses, trojans and other harmful files;
- the sending of junk or spam mails as well as chain letters;
- the dissemination of lewd, offensive, sexually oriented, obscene or defamatory content or communication, as well as content or communication that is likely to promote or support racism, fanaticism, hatred, physical violence or illegal acts (in each case explicitly or implicitly);
- harassing others, e.g., by making multiple personal contacts without or in opposition to the other person’s response, and encouraging or supporting such harassment;
- soliciting others to disclose passwords or personal information for illegal or unlawful purposes;
- the transmission of above-average amounts of data and, in particular, the sustained transmission of such amounts of data;
- any action that is likely to impair the smooth operation of the application, in particular to place a disproportionately high load on resmio’s systems.
4.5 The customer acknowledges that the application and all its components are the sole property of resmio. The application or any part of the application may not be reproduced, decompiled, altered, modified or lent, sold, rented or otherwise commercially exploited to third parties without resmio’s prior written consent. The rights from § 69e UrhG remain unaffected. Any documentation and information provided to the customer about the application and its functionality may also not be made available to third parties without the prior written consent of resmio. Employees of the customer shall not be considered as third parties.
4.6 To the extent necessary for the provision of the services owed by resmio, the customer grants resmio the non-exclusive, revocable right, limited in time to the term of this contract, to use names, images, data and labeling (in particular registered trademarks, logos, or other industrial property rights) of the customer or the customer’s business. This right serves the provision of the contractual services owed by resmio and, if applicable, the production of contractually owed materials (e.g. images, photographs, texts, graphics). The customer assures that such use does not conflict with any rights of third parties and indemnifies resmio in case of a claim by third parties from all related costs (including the costs of legal defense). The customer agrees that resmio may also use the aforementioned rights for positive marketing purposes (reference naming, etc.).
5. Availability and individual Services
5.1 The application is provided with an availability of 95 percent on a monthly average. The parties understand availability to mean the technical usability of the application without significant restrictions at the transfer point (router exit at the Provider’s data center) of the reservation system for use by the Customer.
The following cases of non-availability shall not be counted towards the availability guaranteed under this clause:
- a. Announced maintenance times up to a duration of 12 hours. resmio endeavors to carry out maintenance work during the night hours (10 p.m. to 6 a.m., time zone: Europe/Berlin – Central European Time (CET/MEZ));
- b. Interruptions of the internet connection between resmio and the user and/or between resmio and the customer;
- c. Cases of force majeure; resmio is released from the obligation to perform under this contract if and to the extent that the non-performance of services is due to the occurrence of circumstances of force majeure or other circumstances for which resmio is not responsible. Cases of force majeure are all unforeseeable events or such events which, even if they were foreseeable, are beyond the control of resmio and whose effects on the performance of the contract cannot be prevented by reasonable measures taken by resmio. resmio will inform the customer immediately. Any liability or other warranty claims against resmio shall be void.
5.2 As far as the plan chosen by the customer includes individual services, the scope of the services owed by resmio is determined by the respective tariff. When using the services, the customer is obliged to comply with all acts of cooperation that are necessary for the provision of the services. If the customer temporarily or permanently fails to comply with his obligations to cooperate, resmio shall be released from its obligations to perform in this respect for the duration of the failure to cooperate.
6. Fees and Payment
6.1 The valid plans published on the website www.resmio.com at the time of the conclusion of the contract shall apply. These will be attached to the respective contract.
6.2 Unless otherwise agreed between the parties, invoicing shall be monthly.
6.3 All usage fees are payable plus the applicable value added tax.
6.4 If the customer uses services of resmio which are not included in the respective tariff, the price list for add-ons valid at the time of use shall apply.
6.5 Invoices and payment reminders can be sent by resmio via e-mail or online invoice. The customer is obliged to check his spam folder regularly.
6.6 Payments of the customer to resmio shall be made by electronic direct debit or credit card payment. The customer authorizes resmio to debit the payments to be made by him to an account or credit card to be named by the customer. In case of return debits resmio reserves the right to charge a handling fee of EUR 10,00 per debit. Default interest will be charged in the amount of 9% above the respective base interest rate p.a.. The assertion of a higher damage caused by default remains reserved.
6.7 resmio is entitled to increase the usage fees for the first time after the expiration of twelve (12) months after the beginning of the contract with a written notice of six (6) weeks to the beginning of the following month. The customer has the right to terminate the contractual relationship in writing within a period of four (4) weeks after receipt of the notice, if the customer does not agree to the change of contract. resmio will inform the customer about this right of termination together with each announcement.
7. Limitation of Liability, Warranties and Disclaimers
7.1 The rights of the customer are determined by the legal regulations as far as nothing else is regulated in the following.
7.2 The customer has to inform resmio immediately about occurring defects. As far as resmio could not provide remedy due to the omission or delay of the notification, the customer is entitled to reduce the remuneration in whole or in part, to demand compensation for the damage caused by the defect or to terminate the contract only in case of significant defects which impair the use or which cancel the usability. The customer has to prove that he is not responsible for the omission of the notification. The strict liability of resmio for damages (§ 536a BGB) for defects existing at the time of conclusion of the contract is excluded.
7.3 resmio is liable without limitation for damages caused by resmio, its employees and agents intentionally or by gross negligence, in case of fraudulent concealment of defects, in case of explicit assumption of a guarantee as well as for damages resulting from injury to life, body and health. Any liability under the Product Liability Act shall remain unaffected.
7.4 Liability for damage to property caused by negligence shall be limited to the amount of the agreed annual fee; this shall not apply to liability under Section.
7.5 Liability for consequential damages and other incidental damages as well as for indirect damages shall be excluded, as shall any claim by the customer for reimbursement of expenses, to the extent permitted by law.
7.6 Claims for damages shall become time-barred one year after they arise. The period shall commence at the time at which the customer becomes aware of the circumstances giving rise to the claim and the person of the debtor or should have become aware without gross negligence.
8. Term and Termination
8.1 The contractual relationship shall run for a fixed period from the time of conclusion of the contract in accordance with the respective tariff provisions. It shall be automatically extended by a further twelve (12) months unless terminated by one of the parties at the respective end of the term with four (4) weeks’ notice to the end of the contract.
8.2 In the event that the customer acquires a monthly right of termination before the start of the contract against a payment of 5.00 EUR net p.m., resmio grants the customer the right to terminate the contractual relationship with a notice period of four (4) weeks to the end of the billing month. Contracts in the free BASIC tariff can be terminated at any time.
8.4 Each party has the right to terminate this contract without notice in case of an important reason. An important reason on the part of resmio is in particular if the customer is more than two (2) months in arrears with the payment of the usage fee.
8.5 The termination must be in written form.
9. Final regulations
9.1 This Agreement shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The parties agree that Nuremberg shall be the exclusive place of jurisdiction for all disputes arising from or in connection with this agreement.
9.2 Should any provision of this agreement be invalid, the invalid provision shall be replaced by a valid provision that comes as close as possible to the economic and legal intent.
9.3 resmio reserves the right to change the terms of conditions with effect for the future especially in the following cases:
- if and to the extent that the market situation has changed in a valid way after the conclusion of the contract in terms of calculation or technical aspects from resmio’s point of view.
- if resmio wants to improve, extend or change the offer and services in favor of the customers.
The changes of the GTC will be announced with a notice period of four (4) weeks in advance and then changed.
9.4 Changes or amendments to the contract must be made in text form. This also applies to the amendment or cancellation of this clause.