1. Scope of Applicability
The user of the resmio online reservation and income management system (hereinafter the “Application”) is governed exclusively by the following general terms and conditions, the service description and based on the pricing set forth on the website. This also applies to any use from a location outside of the territory of the Federal Republic of Germany.
These terms apply to future agreements with the user even if their applicability is not expressly referenced again, unless resmio stipulates deviating terms and conditions for future agreements.
2. Subject-Matter of Agreement
The subject-matter of this Agreement is the provision of an online-based reservation and income management system for the restaurant sector. The resmio application consists of the widget for use on the website of the user and potentially third parties (“Affiliates”), the integrated reservation application for use on the websites of Affiliates, the income management and reservation system developed by resmio which the user can access via a web interface and a ticket function which enables the user to generate tickets to events and offer them on the internet. The application enables the user to accept reservations via the widget and/or the ticket function and to manage the pricing of the offers published via the website in accordance with its estimated occupancy rate. Depending on the selected tariff, individual services (consulting, marketing support) may be the subject-matter of the Agreement, as well.
A reservation by a guest via the widget and/or the ticket function constitutes an offer to enter into a service agreement between the guest and the user. resmio merely transmits the respective declaration of the guest. Accordingly, a purchase or service agreement can only be concluded between the user and the respective guest. As technical service provider, resmio is in particular not responsible for damages, non-performance or improper performances arising from the mediated agreement or an agreement which failed to be concluded.
Each user is solely responsible for verifying whether the pricing suggestions determined by resmio are suitable to serve as basis for the pricing models vis-à-vis the customers. The user acknowledges that the pricing suggestions of resmio are prepared only on the basis of an analysis of a limited number of parameters and that they do not allow any conclusions on the prices which may actually be achieved within a certain period. resmio provides the users with own information and data via the application. This information and data serves only information purposes; the user cannot cite or rely on the validity, correctness, accuracy, relevance or completeness of the information.
The application can be changed, modified, updated or wholly or partly withdrawn at any time. In case of a major change, the user may terminate this Agreement with a notice period of four weeks to the end of the month.
Within the available capacities and the scope of the tariff selected by the user, resmio will advise the user with respect to the use and integration of the application and provide technical support.
The user is responsible vis-á-vis the customer for compliance with applicable data protection laws.
resmio grants the user a non-exclusive, non-transferrable, global license to use the application for the term of this Agreement. The license is limited to the use of the application for one bar/restaurant operation of the user. Upon request and subject to a separate agreement, licenses for the use of the application for multiple bars/restaurants may be purchased.
resmio will provide a password for access to the application control to the user. The user undertakes to store this password diligently and not to enable third parties to access the password.
The user acknowledges that the application and all its components are the sole property of resmio. The application or each part of the application may not be reproduced, decompiled, changed, modified or provided, sold, hired out to third parties or otherwise commercially used without prior written consent of resmio. The rights under Section 69e of the German Copyright Act remain unaffected. Any documentation and information about the application and its functionalities provided to the user may not be disclosed to third parties without the prior written consent of resmio.
Employees of the user are not considered as third parties within the meaning of this paragraph.
To the extent it is necessary for the provision of the services owed by resmio, the user grants resmio and the Affiliates of resmio the temporal, non-exclusive, revocable right to use, make publicly accessible, edit, reproduce and disseminate during the term of this Agreement the name, data and labels (in particular the marks, logos, brand names) of the user and/or the operation of the user, as well as the materials which may be required for performance of the services owed by resmio (e.g. images, photos, tests, graphics), solely for purposes of the contractual services. The user assures that such use is not opposed by third party rights and in case third parties assert such claims, the user indemnifies resmio from and against all associated costs (including the costs of legal defence).
4. Availability and Individual Services
The application is provided with an Availability of 95 percent on monthly average. The term “Availability” refers to the technical usability of the application without major obstructions at the transfer point of the reservation system for usage by the user. The following cases of non-availability are not considered for purposes of the Availability guaranteed under this section:
Pre-announced maintenance periods of up to 12 hours duration. resmio makes an effort to undertake maintenance works during night hours (10 pm to 6 am);
interruptions of the internet connection between resmio and the user and/or between resmio and the end customer;
cases of force majeure.
To the extent the tariff selected by the user includes individual services (consulting, marketing support), the scope of the services owed by resmio is determined by the respective tariff. If the customer uses individual services above and beyond the scope included in the respective applicable tariff, resmio may charge separately for these services utilized in excess of the scope included in the tariff, in accordance with the respective applicable price list for additional services. The user is obligated to fulfil all cooperation duties which may be necessary when utilizing individual services and provide all necessary information and declarations to resmio which are required to provide the individual services. If the user fails to meet its cooperation duties temporally or permanently, resmio is released from its obligation to provide the respective services for the period the cooperation duty is not fulfilled.
resmio Free Version: The user may use the application free of charge. The duration of free use is set forth in the respective valid offer at the respective beginning which can be viewed on www.resmio.com. During the resmio Free use, the user may use the application free of charge, albeit with restrictions; however, there is not right to individual services of other tariffs (e.g. consulting). During the use of the resmio Free Version, the agreement may be terminated at any time without stating reasons. If the Agreement is not terminated, the contractual relationship shall continue.
The prices and fees valid at the time the Agreement is concluded and published on the website www.resmio.com, shall apply. Non-use based fees are payable monthly in advance. Use-based fees become payable upon invoicing after expiration of the respective billing period. All fees and prices are net amounts payable plus VAT.
To the extent the user utilizes services from resmio which are not included in the respective tariff, the price list for additional services valid at the time of such utilization shall apply.
Settlement shall take place monthly via invoicing. resmio may send invoices and payment reminders via email or online invoice. Payments of the user to resmio for undertaken reservations and other products within the system are made by electronic direct debit or credit card payment. The user authorizes resmio to directly debit amounts payable by the user from an account or credit card to be designated by the user. In case direct debits fail or in case of chargebacks, resmio reserves the right to charge a flat-fee of EUR 15.00 per direct debit or chargeback.
Default interest in the amount of 8% above the respective base interest rate p.a. is charged. resmio reserves the right to assert higher default damages.
resmio may increase the use-based fees no earlier than upon expiration of twelve (12) months after the effective date of this Agreement by providing six weeks´ written notice to the beginning of the next following month. The user may terminate the contractual relationship by written termination declaration within a period of four (4) weeks after receipt of such notice. resmio will inform the user about this termination right in each such notice.
No-Shows: reservations which are subject to a fee and which are not honoured (“no-shows“) can be marked by the user within the application up to 24 hours after the reservation date. Marked no-shows will be credited to the user for the following month, up to a maximum share of 10 percent of the total reservations. Credits which are not used in the following month expire without compensation. The monetary value of the credits will not be refunded. resmio reserves the right to question end users about whether they honoured their reservation. If for two consecutive months, the share of no-shows stated by the user exceeds the average share of no-shows stated by users with bar/restaurant businesses of comparable orientation in the same period by more than 25 percent, resmio may terminate this Agreement extraordinarily in accordance with section 8 (3) of this Agreement.
6. Failure to fulfil Specific Performance Obligations
If resmio fails to fully meet the agreed obligations, the following terms apply.
Should resmio be in default with the initial operable provision of the application, the user may rescind the Agreement if resmio fails to meet a grace period of two weeks set by the user, i.e. if resmio does not provide the full agreed functionality of the application within the grace period.
If after the initial operable provision of the application resmio wholly or partly fails to meet the agreed obligations, the user shall receive a credit note in the amount of a share of the monthly non-use based fee which corresponds to the period during which the application was not or not fully available. Use-based fees are only incurred for transactions which were actually undertaken by using the application despite the limitation or the discontinuation of the services. If this non-performance is attributable to resmio the user may also claim damages pursuant to section 7.
If use of the application is not restored within three days after resmio became aware of the defect, the user may extraordinarily terminate the contractual relationship without adhering to a notice period, regardless of the reason for such non-performance; however, this does not apply if it is solely due to force majeure.
If the user failed to inform resmio about the service outage, it bears the burden of proof that resmio otherwise became aware thereof, if resmio disputes that it was aware thereof.
In case of wilfull intent or gross negligence the parties are liable vis-á-vis each other without limitation for all damages caused by a party and its statutory representatives or vicarious agents.
In case of simple negligence, the parties are fully liable in case of injury to life, body or health.
Apart from that, a party is only liable to the extent it breached a material contractual duty (Kardinalpflicht). In these cases, liability is limited to compensation of the foreseeable, typically incurred damages. For defects, which existed upon formation of the Agreement, strict liability of resmio for damage compensation (Section 536a of the German Civil Code – BGB) is excluded; paragraphs 1 and 2 remain unaffected.
Liability pursuant to the German Product Liability Act remains unaffected.
The liability of the parties in case of gross negligence and wilful intent, breach of material contractual duties and personal injury is unlimited in its amount.
To the extent the liability of resmio is excluded or limited pursuant to the preceding paragraphs, this also applies for the benefit of the employees of resmio if claims are directly asserted against them by the user.
Apart from that, in case of direct property damage caused by employees of a party or third parties involved by a party, the parties are liable vis-á-vis each other for any legal reason whatsoever up to a maximum of the license fees incurred under this Agreement in one contractual year.
8. Term, Termination
This Agreement takes effect upon (i) signing of the application form or (ii) completion of the registration process on the website www.resmio.com or (iii) expiration of the test phase, if the termination right is not exercised during the test phase. Depending on the selection of the user, the Agreement has an initial term of twelve (12) months, twenty-four (24) months or thirty-six (36) months, unless otherwise stated in the terms and conditions of the selected tariff. It shall automatically extend by another twelve (12) months (or, if a different extension period is stated in the terms and conditions of the selected tariff, by such period), respectively, unless it is terminated with a notice period of six (6) weeks to the end of the contractual term. The termination notice requires text form. Agreements in the free tariff resmio Basic can be terminated at any time.
Each party may terminate this Agreement extraordinarily without adhering to a notice period in case of important cause. An important cause is in particular constituted for resmio if the user is in arrears with the payment of the license fees pursuant to section 5 for a period exceeding two (2) months or if the user states an excessive number of no-shows pursuant to section 5 (4).
9. Applicable Law, Venue
This Agreement is subject to the laws of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods (CISG). The parties agree Nuremberg shall be the exclusive venue for all disputes arising under or in connection with this Agreement.
If a provision of this Agreement is invalid, the invalid provision shall be replaced by such valid provision which most closely resembles the parties´ economic and legal intention.