General Terms and Conditions
Latest update: December 8th, 2020
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”). Customers of resmio are exclusively entrepreneurs in the sense of Sec. 14 of the German Civil Code (BGB) and not consumers in the sense of Sec. 13 of the German Civil Code (BGB).
resmio allows Customers to (i) offer reservations for store locations via dependent web applications (“Widget”), (ii) accept orders for on-site pickup or deliveries to the Guest, provide contactless ordering at the table, (iii) enable the sale of tickets or vouchers.
The services provided by resmio include the provision of the Widgets, which can be accessed by the Customer’s contract partner (“Guest”) via Internet.
resmio only forwards reservation requests and orders of the Guest to the Customer. A contractual relationship concerning restaurant services or similar services is only established between the Customer and the respective Guest.
1. Scope of Application
1.1 The use of the Application is exclusively based on these GTC, the service description and the prices shown on the website. This also applies to any 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. GTC of the Customer or a third party only become part of the contract if and insofar as resmio has expressly agreed to their validity. This requirement of consent applies in any case, in particular if resmio is aware of such terms and conditions and accepts the deliveries and services of the Customer or a third party without reservation.
2. Subject Matter of the Contract
2.1 Only Customers who have accepted these GTC upon conclusion of the contract can use the Application.
2.2 The subject matter of the contract is the provision of the Application. The Application enables the Customer to accept reservations and orders via Widgets. Customers are also 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 from 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 may be changed by resmio at any time.
2.4 Within the scope of the available capacities, resmio will advise the Customer with regard to the use and integration of the Application and provide technical support.
2.5 The Customer is solely responsible for compliance with the applicable data protection provisions vis-à-vis the Guests as the controller within the meaning of Art. 4 (7) of the General Data Protection Regulation (“GDPR”). resmio processes the data generated in the process as a processor pursuant to Art. 4 (8) of the GDPR in conjunction with Art. 28 of the GDPR. For this purpose, the Customer must conclude a data processing agreement (“DPA”) with resmio.
3. Conclusion of the Contract, Contract Language
3.1 The presentation of goods and services on resmio’s website does not constitute a legally binding offer, but an invitatio ad offerendum. The Customer may submit a binding offer to conclude a contract as follows:
- (i) by signing the application form and sending it to resmio by e-mail.
- (ii) by registering via resmio’s website or app.
3.2 Immediately after sending the binding offer, the Customer receives a confirmation from resmio. However, this confirmation does not constitute an acceptance of the contractual offer. In principle, a contract between resmio and the Customer is concluded as soon as resmio accepts the Customer’s binding offer by a separate e-mail.
3.3 The Customer uses the PREMIUM tariff free of charge for 30 calendar days (“trial period”) from the beginning. After the end of the trial period, the Customer will be downgraded to the free BASIC tariff, unless the Customer decides to keep PREMIUM, which is now subject to charges, or to upgrade to ULTIMATE, which is also subject to charges. The Customer can find the specific contractual conditions for resmio’s free and paid tariffs in the service description and the currently valid price sheet.
3.4 A contract between resmio and the Customer can also be concluded verbally. For this purpose, the Customer has to verbally confirm resmio’s verbal offer. The contract negotiations are recorded by resmio with the “Aircall” VoIP software to document the conclusion and the content of the contract. Following the conclusion of the contract, a confirmation is sent to the Customer by e-mail.
3.5 The language provided for the conclusion of the contract is exclusively German. Translations into other languages serve only to inform the Customer. In the case of contradictions between the German text and the translation, the German text prevails.
4. Scope of the Right of Use
4.1 resmio grants the Customer a non-exclusive, non-transferable, worldwide license to use the Application (“simple right of use”) for the term of this contract. 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 multiple bars/restaurants can be purchased. The rights are granted only to the Customer as the person responsible for the content of the Customer’s website and can neither be transferred nor sublicensed without the consent of resmio.
4.2 resmio allows the Customer to generate an individual password to access the Application. The Customer undertakes to keep this password in a safe place and not to enable any third parties to access the password.
4.3The Customer is obligated to observe the applicable law when using the Application and in particular not to violate the rights of any third parties.
4.4 When using the Application, the Customer is prohibited from any action that violates applicable law, infringes the rights of third parties or violates the principles of the protection of minors. In the event of a violation, resmio will block the Application for the Customer. The following actions are prohibited in particular:
- distributing viruses, Trojans and other harmful files;
- sending junk or spam mails as well as chain letters;
- disseminating lewd, offensive, sexually oriented, obscene or defamatory content or communication, as well as such content or communication that is likely to promote or support racism, bigotry, hatred, physical violence or illegal acts (in each case explicitly or implicitly);
- harassing other persons, e.g. by contacting them personally on multiple occasions without or contrary to the reaction of the other person, as well as promoting or supporting such harassment;
- soliciting others to disclose passwords or personal data for illegal or unlawful purposes;
- transmitting above-average amounts of data and, in particular, the continuing 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 thereof may not be reproduced, decompiled, changed, modified or loaned, sold, rented to third parties or otherwise commercially used without the prior written consent of resmio. The rights under Sec. 69e of the German Copyright Act (UrhG) remain unaffected. Any documentation and information about the Application and its functionality provided to the Customer may also not be disclosed to third parties without the prior written consent of resmio. Employees of the Customer are not considered 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 to use names, images, data and labels (in particular registered trademarks, logos, or other industrial property rights) of the Customer or the Customer’s business during the term of this contract. This right serves to provide the contractual services owed by resmio and, if applicable, to produce 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 in case third parties assert such claims, the Customer indemnifies resmio from any and all associated costs (including the costs of legal defense). The Customer agrees that resmio may also use the aforementioned rights for positive marketing purposes (references, etc.).
5. Availability and Individual Services
5.1 The Application is provided with an availability of 95 percent on monthly average. For the parties, the term “availability” refers to the technical usability of the Application without significant restrictions at the transfer point (router output at the provider’s data center) of the reservation system for use by the Customer. The following cases of non-availability are not considered for purposes of the availability guaranteed under this section:
- a. Announced maintenance periods of up to 12 hours. resmio endeavors to undertake maintenance work during night hours (10 p.m. to 6 a.m., time zone: Europe/Berlin – Central European Time (CET));
- b. Interruptions of the Internet connection between resmio and the user and/or between resmio and the end customer;
- c. Cases of force majeure.
5.2. Insofar as the tariff selected 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 obligated to comply with any and all cooperation duties required for the provision of the services. If the Customer temporarily or permanently fails to comply with its cooperation duties, resmio is released from its obligations to provide the respective service for the period the cooperation duty is not fulfilled.
6. User Fee
6.1 The tariffs valid at the time of the conclusion of the contract and published on the website www.resmio.com apply. These tariffs will be attached to the respective contract as an annex.
6.2 Unless otherwise agreed between the parties, invoicing will take place monthly.
6.3 All user fees are payable plus the applicable value added tax.
6.4 Insofar as the Customer uses services from resmio which are not included in the respective tariff, the price list for additional services valid at the time of such use applies.
6.5 resmio may send invoices and payment reminders via e-mail or online invoice. The Customer undertakes to regularly check its spam folder in this regard.
6.6 Payments by the Customer to resmio are made by electronic direct debit or credit card payment. The Customer authorizes resmio to directly debit amounts payable by the user from an account or credit card to be designated by the Customer. In case direct debit fails or in the case of chargebacks, resmio reserves the right to charge a processing fee of EUR 10.00 per direct debit or chargeback. Default interest will be charged at a rate of 8% above the respective base interest rate p.a.. resmio reserves the right to assert higher damage caused by default.
6.7 resmio is entitled to increase the user fees for the first time after the expiration of twelve (12) months after the effective date 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 such notice if the Customer does not agree to the contractual change. resmio will inform the Customer about this right of termination in each such notice.
7. Warranty and Liability
7.1. The rights of the Customer are determined in accordance with the statutory provisions unless otherwise stipulated below.
7.2 The Customer must notify resmio immediately of any occurring defects. Insofar as resmio was unable to remedy the situation as a result of 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 incurred as a result of the defect or to terminate the contract. This however, only applies to significant defects which impair the use or nullify the usability. The Customer has to prove that it is not responsible for the omission of the notification. For defects existing at the time of the conclusion of the contract, the strict liability of resmio for damages (Sec. 536a of the German Civil Code – BGB) is excluded.
7.3 resmio is fully liable for damages caused by resmio, its employees and vicarious agents intentionally or through gross negligence, in the event of fraudulent concealment of defects, in the event of the express assumption of a guarantee as well as for damages arising from injury to life, body and health. Any liability under the German Product Liability Act (Produkthaftungsgesetz) remains unaffected.
7.4 Liability for damage to property caused by negligence is limited to the amount of the agreed annual fee; this does not apply to liability under Section 7.3.
7.5 Liability for consequential damages and other collateral damages as well as for indirect damages is excluded, as is any claim by the Customer for reimbursement of expenses, to the extent permitted by law.
7.6 Claims for damages expire one year after they arise. The period commences 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, Termination
8.1 The contractual relationship runs for a fixed period from the time of conclusion of the contract in accordance with the respective tariff provisions. It automatically extends by another 12 months, unless it is 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 Against payment of an additional EUR 5.00 net per month, the Customer can terminate the fixed-term contractual relationship with a notice period of one month to the end of the billing month. Contracts in the free resmio Basic tariff can be terminated at any time.
8.4 Each party has the right to terminate this contract without notice for good cause. Good cause on the part of resmio exists in particular if the Customer is more than two (2) months in default with the payment of the user fee.
8.5 The termination must be in writing.
9. Final Provisions
9.1 This contract 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 that Nuremberg will be the exclusive place of jurisdiction for any and all disputes arising out of or in connection with this contract.
9.2 If a provision of this contract is invalid, the invalid provision is to be replaced by such valid provision which most closely resembles the parties’ economic and legal intention.
9.3 resmio reserves the right to change the GTC with effect for the future, in particular in the following cases:
- if and insofar as the market situation has significantly changed from resmio’s point of view in terms of calculation or technology after the conclusion of the contract.
- if resmio wishes to improve, expand or change the offer and services in favor of the Customers.
The changes to the GTC will be announced with a notice period of four (4) weeks and then changed.
9.4 Amendments or additions to the contract must be made in writing. This also applies to the amendment or cancelation of this clause.