General terms and conditons for the use of the travel service platform by Triplemind.com

§ 1General 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.
1.2These 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.
1.2.1Changes 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.
§ 2Platform operators´ services
2.1The 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.
2.2The offerers´ services include amongst others
2.2.1preparation of the possibility to use the marketplace after the admission accordant to § 3;
2.2.2enabling of presentations and contract conclusions on the marketplace through an announcement that has been initiated by the user according to § 4;
2.2.3Creation of the possibility of information or communication between the users and the end customers;
2.2.4Advisory service and assistance service for the user after separate agreement with the supplier.
2.2.5The 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.
§ 3Admission and access to the marketplace
3.1Precondition 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.
3.2The 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.
3.3If the users´ data change after the registration he is obligated to adjust the statements immediately for the supplier.
3.4The 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.
3.5The 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.
3.6All 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.
§ 4Prices, payment practices
4.1If 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.
4.2The 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.
4.3The 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.
4.4Unless 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.
4.5The 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.
4.6The cash discount can only been taken if it has been a separate written agreement.
4.7The user agrees with the storage of the billing data for later documentation and/or for the legal due of saving.
§ 5Contract conclusion on the marketplace
5.1User 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.
5.2ontract conclusions about the user´s offert services happen only in user/end customer relation without the supplier´s participation.
5.3The 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.
5.4All 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.
5.5No 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.
5.6The 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.
§ 6The users´ duties
6.1An announcement may not take place if
6.1.1specifications are so incomplete that matter and price can not be qualified;
6.1.2the 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.
6.2Accommodations 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.
§ 7The supplier´s liability
7.1The 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.
7.2The supplier is not liable for failures intrasystem the grid-type network he is not to blame for.
7.3The 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.
7.4The 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.
7.5As 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.
7.6The 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.
7.7The asforsaid limitation of liability are basically applicable in favour of employees, representatives and auxilary persons of the supplier.
§ 8Outside contents, viruses
8.1The 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.
8.2TThe supplier does under no circumstances adopt foreign contents, unless to use the contents for own purposes according to § 10.7.
8.3The 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.
8.4The 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.
§ 9Other users´ duties
9.1The User is obligated,
9.1.1to 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;
9.1.2to communicate the supplier immediately the technical changes in his area which can disturb the service provision or the supplier´s marketplace security.
9.1.3to participate in clarification when third parties attack the marketplace, as far as necessary.
9.2The 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.
§ 10Data security and privacy policy
10.1The 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.
10.2The 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.
10.3The 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
10.3.1retains 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.
10.3.2retains 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;
10.3.4retains non personal data concerning the transaction content and transmits them to other users and makes them available for registered and not registered users.
10.4Over 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.
10.4.1The 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.
10.4.2With 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
11.1A partly or total subrogation of the users´rights from the contract with the supplier to a third party is impossible.
11.2The user is only entitled to setoff against the supplier with undoupted or legally binding counter claims.
§ 12Contract duration
12.1As 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.
12.2The 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:
12.3.1the 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.
12.3.3default payment over more than 6 weeks for the user´s duty of payment according to 3.2. and 3.3
12.3.4constant 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.
§ 13Applicable law, jurisdiction, severability clause
13.1The 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

使用条款通则

§ 1一般准则
1.1 公司Triplemind GmbH, Berliner Straße 2, 63065 Offenbach am Main, HRB B43729, HR Frankfurt am Main (以下称: 服务提供商), 提供给房屋经营者和旅行社(以下称: 服务使用者)合同规定范围内的服务, 即使用本网站(以下称: 在线市场)在线宣传推广房屋.
1.2本使用通则适用于服务提供商和使用者在合同中所签订的所有服务协议,不符合相关条款的协议只有在服务提供商予以书面确认后方能生效.使用者对条款理解上的偏差不影响本通则的效力.
1.2.1 本使用通则若有变更,提供商会以传真或邮件等书面形式通知使用者.使用者如果在接到变更通知的四周内没有提出反对,则表示认同变更.条款变更后使用者同样会被告知拥有发对的权力以及沉默所带来的法律结果.
§ 2平台运营
2.1 在线市场是个供旅游业经营者活动的平台,它拥有促进用户和终端客户间信息交流的综合自动系统以及管理控制合同的丰富功能.
2.2 提供的服务还包括
2.2.1 根据条款3做好网站使用的各项准备;
2.2.2根据条款4为使用者提供使其能够展示描述和在线签订合同的服务;
2.2.3 提供使用者与终端客户间信息交流的机会
2.2.4根据特定协议为使用者提供咨询和协助服务.
2.2.5提供商确保年均95%的网站可供访问率.其他情况主要指由于技术原因和其他提供商不可控制的原因所造成的网站服务器失灵.对于各种含有不安全隐患的行为,服务商有权限制其访问网站.
§ 3网站访问
3.1 访问网站需要服务商授权.本网站只供房屋运营和旅游服务等专业机构使用.
3.2 申请使用本网站时使用者需要命名其公司资料.使用申请的接受会以传真或邮件形式确认.申请被批准后,提供商和使用者间将签订使用合同.
3.3 使用者如果在注册后更改用户资料,必须立即通知提供商.
3.4 使用者对其在使用申请过程中所做出的声明的真实完整性负责,并且对于任何变更,应该立即通知提供商.
3.5 如果使用者违反使用条款,提供商有权取消其使用权限;对于此情况,使用者可以提供未违背条款的证明材料并承担相应费用.
3.6 只有被授权的使用者可以登录使用网站,使用者有责任秘密保管并正确使用其登录名和密码,避免第三方获悉和破坏以及信息丢失等后果.若怀疑或发现第三方盗用登录信息的情况,使用者须立即通知提供商,以便服务商能够快速限制并阻止非法登入行为. 必要时提供商有权更改登录名和密码并迅速通知相应使用者.对于使用者未能保管其登录信息所造成的损失,产生的相应成本由使用者承担.
§ 4价格与支付
4.1对于需要付费的服务,使用者须根据网站上所标识的价格支付.
4.2 提供商可以在使用者同意的基础上最多一季度一次调整价格.提供商务必将价格变更通知到使用者,使用者如果在接到价格调整通知后的四周内没有提出反对则表示认同.
4.3付款须在接到帐单的十个工作日内完成,拖延支付需承担相应法律后果.
4.4 除非另有说明,标价均为需要另外加税的净价格.
4.5 委托人可以用无争议的并具有法律效力的账款抵消提供商账款.
4.6现今折扣只能在特定书面协议下形成.
4.7为了方便日后证明所需,支付信息将被保存.
§ 5缔结合同
5.1 使用者可以向终端客户提供服务,此服务不具有约束力.
5.2 使用者商业合同的签订只取决于使用者和终端客户,提供商不予参与.
5.3在本网站所缔结的合同的交易执行由使用者和终端客户负责.提供商不保证使用者与终端客户间合同的最终履行并且不负责合同的违约行为.
5.4在特定用户登录下的对用户有正面或负面影响的声明有效,声明发表者不具有发表权力的情况出外.
5.5 提供商不对使用者身份的真实性和支配权限负责,若有任何疑问,合同双方的使用者和终端客户需自行解决.
5.6 提供商有权在不影响合同履行的情况下对本平台的内容和结构以及相应的用户界面进行变更,此变更须通知给使用者.
§ 6 使用者义务
6.1 以下情况下的描述无效
6.1.1 价格或房屋信息不完整;
6.1.2 描述或说明不合法不合规;在这种情况下提供商有权将相应文字从本网站上取消.
6.2 对于某些需要合法证明的房屋或服务,只有在提供了相关法律证明文件后才可以展示在本网站上.
§ 7 提供者责任
7.1 提供商对故意疏忽过失负全责, 对于轻微过失的赔偿以合同规定为限,除非对人员的生命健康造成了损害.
7.2 对于不是由提供商引起的故障,提供商不予负责.
7.3 在使用者采取了适当数据保护措施的前提下出现的不可避免的数据丢失现象有提供商负责.
7.4 对于用户非法或不正当使用所造成的破坏提供商不负责.
7.5 对于导向其他数据库,网站或服务商的链接,本提供商既不对其可访问性,状态以及安全性负责,也不对其内容负责. 尤其对于这些数据库,网站或服务商所提供内容的法律效力和真实完整性,本提供商不予负责.
7.6根据7 TKV提供商的责任范围如下:对于提供商无意违反通信法律及相关行政法规的行为,为维护委托人的安全和利益,提供商承担最高12500欧元的经济损失。提供商为所有合作伙伴所承担的总经济赔偿上限为一千万欧元,如果因为同一事件对所有赔偿对象所承担的损失总额超过这一上限,则每一个赔偿对象得到的补偿金额按相应比例均等降低,故意过失所造成的损害不受此限制。
7.7上述有限赔偿责任基于提供商雇员和管理层的利益.
§ 8外部内容,病毒
8.1 使用者不得在本网站发表违反法律,法规和道德风俗的内容(比如插入违法链接)和侵害第三方权利,尤其是版权和产权的内容.
8.2提供商不接受外来内容,除非根据条款10.7.为了自身的某些目的
8.3提供商有权封锁有明显犯罪意图的内容。
8.4提供商在打击违法违规内容过程中所产生的法律费用和经济成本由相应的使用者承担.
§ 9其他用户义务
9.1 使用者有责任,
9.1.1 在合同期间保管好个人资料,尤其是登录名和密码;
9.1.2对于使用过程中发现的影响网站服务和安全的技术变更,须立即通知提供商;
9.1.3当有第三方破坏本网站时,在必要情况下做出相应声明;
9.2使用者不允许做出任何破坏本网站的行为,不允许企图登入无权访问的区域. 此外,使用者应注意在本网站发送和发表信息的安全性,避免含有病毒的信息和数据.应疏忽以上职责所造成的损失要由使用者本人承担.
§ 10信息安全和隐私事宜
10.1 提供商的服务器是被防火墙保护的; 但是使用者要清楚,信息和数据传输过程中是有风险存在的,提供商不保证数据和信息的隐私性.
10.2 使用者同意提供商拥有保存使用者和终端客户匿名商业交易过程中的数据和信息的权力以及为了调查统计等市场活动匿名使用这些信息的权力.
10.3在遵循信息保护的前提下,提供商有权编辑保存双方商业交易过程中的信息和数据,具体而言,使用者同意提供商的以下行为
10.3.1保存使用者所提交的个人信息比如公司信息,帐户资料以及个人联系信息等;
10.3.2保存使用者独立登入的信息并根据其需求将信息公开;
10.3.3保存交易过程中的使用者个人信息并在必要时传给其他使用者;
10.3.4 保存交易过程中有关交易内容的非个人信息并在必要时传给其他使用者.
10.4在上述之外的情况下使用个人信息需征得使用者的特别同意,使用者有权随时取消上述同意。
10.4.1提供者在使用用户信息时要保护其隐私,然而在法律和行政要求下除外.
10.4.2 根据条款3.2使用者负责保证信息隐私事宜.
10.4.3 根据条款3.2使用者授权提供商为了自身目的使用其提供的图片和图表等信息.
§ 11权利转让和抵消
11.1不允许将合同中所规定的使用者的权利全部或部分地转让给第三方.
11.2账款抵消只能在无争议的或有法律约束力的声明下进行.
§ 12合同期限
12.1 只要服务符合合同中的协定,合同持续12个月,根据条款3以提供商的准许为开始.
12.2没有终止命令的前提下,合同每12个月一更新,终止命令须提前一个月给出,条款12.3规定的特殊说明不受此限制.
12.3 因为重要原因任何一方都有权终止合同,对于提供商而言,重要原因包括:
12.3.1 使用者违反规则和条款, 并在规定期限内不清除违规内容;
12.3.2使用者的侵权行为比如欺诈行为;
12.3.3根据条款3.2.和3.3使用者有付款义务时,拖欠付款超过6周;
12.3.4超出提供商控制范围的连续扰乱, 比如自然灾害, 火灾, 非认为的网络中断;
12.4提供商明确表示取消时有权要求使用者在取消同时的合同期内支付75 %的报酬,除非使用者能够证明提供商没有受到损害或实际损失低于该数额.
12.5协议的终止需要书面协议.
§ 13法律声明
13.1除联合国国际货物买卖法之外,德意志联邦共和国法律适用.
13.2所有法律纠纷的司法审判权在奥芬巴赫.服务商同样有权在使用者所在地法院上诉.
13.3如果本使用通则中的某些条款无效或抵触法律法规,那么其它条款仍然有效.无效条款将由合同双方本着接近原经济意图的原则改为有效形式. 上述条款同样适用于规则漏洞.
创建:法律顾问 Dr. Tim Becker, lindemannpartner.de

 

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