GT&C

General Terms and Conditions of Use of Gastfreund GmbH

(as of 23 February 2016)

General – Scope of Application

These Terms of Use form part of a contract between Gastfreund GmbH (hereinafter referred to as “Gastfreund”) and its customers for the use of the Gastfreund platforms and related software and services.

  1. Definitions and description
    1. “Platforms” are mobile applications, websites or other media that provide users with access to content.
    2. “Users” are users of the platforms and the entire offer who have access to the content of Gastfreund’s customers.
    3. “Customers” are organisations, institutions, municipal administrations, tradespeople or companies that post and publish content via the backend.
    4. Gastfreund operates online and cloud-based platforms that enable customers to enter content and offers and to use functions provided by Gastfreund.
    5. In all other respects, the scope of services is set out in the service description at https://www.guestfriend.com/.
  2. Rights and obligations of Gastfreund
    1. Gastfreund reserves the right to change its platforms at any time in a manner that is reasonable for the customer, e. g. in order to further develop them or improve their quality.
    2. Gastfreund reserves the right to change these Terms of Use / General Terms and Conditions at any time and without stating reasons. The amended terms and conditions will be sent to the customers by e-mail at least two weeks before they come into force. If the customer does not object to the validity of the new terms of use / GTC within two weeks after receipt of the e-mail, the amended GTC shall be deemed accepted. Gastfreund will separately inform the customers of the importance of this two-week period in the email containing the amended terms and conditions.
    3. Due to technical malfunctions and maintenance, there may be limited usability for a limited period of time. Gastfreund will always remedy any disruptions as quickly as possible in order to keep these times as short as possible and – where possible – inform the customer of foreseeable disruptions in good time.
    4. Gastfreund temporarily restricts its services if this is necessary with regard to capacity limits, the security or integrity of the servers or to carry out technical measures; this serves the proper or improved provision of the services (maintenance work). In these cases, Gastfreund takes into account the legitimate interests of the customers, such as by providing advance information.
    5. Gastfreund is entitled to use and store the data arising in the course of use for the purposes of evaluation, control, improvement of the offer, analysis, marketing and advertising.
    6. Gastfreund may take measures if there are concrete indications that a customer violates legal regulations, third party rights, the Gastfreund GTC or if Gastfreund has another legitimate interest, in particular to protect users from fraudulent activities.
    7. Gastfreund is permitted to name the customer as a reference from the time of the conclusion of the contract. This includes: Use of the customer’s name and logo, mention in media coverage and use of screenshots of the customer’s content.
  3. Rights and obligations of the client
    1. Approval
      1. The customer must provide all personal or company-related data to be collected in the registration process completely and truthfully. They are responsible for the correctness of their data and guarantee Gastfreund that it is correct and up-to-date.
      2. The customer must ensure that third parties cannot access their access data. The customer is solely responsible for any misuse of the access data.
    2. Licence and use
      1. The customer grants Gastfreund and its affiliates a royalty-free, non-exclusive, worldwide licence to use the content posted on Gastfreund pursuant to Section 15 of the German Stock Corporation Act. By doing so, the customer grants Gastfreund the right to use the posted content in media of all kinds, in particular the right to reproduce, distribute, make publicly available, broadcast and edit it, and to do so in a form that is not predetermined in terms of time, place and content. The aforementioned rights allow to use all known technical processes and all known forms of media.
      2. The licence ends 12 months after the contractual relationship between Gastfreund and the customer has been terminated.
      3. The customer is solely responsible for the content posted via their access. By registering, they confirm to be the legal representative of the customer or the customer themselves.
      4. The customer shall create a valid legal notice for their content in accordance with the statutory regulations and shall comply with the statutory data protection guidelines.
      5. The customer is not entitled to pass on or publish user data to third parties which arise in the context of the contractual relationship with Gastfreund or which arise in the context of use.
      6. The customer guarantees to Gastfreund that they hold the (usage) rights to all content posted by themselves and that they do not violate any legal regulations. In particular, they do not violate property rights and rights of use of third parties, e. g. copyright when using images, texts or other elements.
      7. The customer shall indemnify Gastfreund on first demand against all claims asserted against Gastfreund by other customers, users or other third parties for infringement of their rights by content posted by the customer on the Gastfreund platforms or for any other use thereof. In this case, the customer shall bear the costs of Gastfreund’s necessary legal defence, including all court costs and lawyers’ fees in the statutory amount. This shall not apply if the customer is not responsible for the infringement. In the event of a claim by a third party, the customer is obliged to provide Gastfreund immediately, truthfully and completely with all information required for the examination of the claims and a defence.
      8. The protection of minors in Germany, Europe and the countries in which the customer and user have their place of business or residence must be implemented by the customer. It should be noted that there is no age restriction for the Gastfreund platforms.
    3. Safety
      1. The customer undertakes not to send any spam messages and not to use any automatic electronic programs or robots or to make his guest friend access available for this purpose.
      2. The customer undertakes not to distribute or post any viruses, malware or harmful links, as well as links to illegal Internet sites and malicious content.
    4. Advertising and advertising guidelines
      1. Only the properties managed by the clients may be advertised. In order to advertise another property, a new object must be created with the existing Gastfreund account.
      2. The client is permitted to link to existing objects on Gastfreund’s network. Linking within Gastfreund is free of charge. No fees may be charged for linking. An advertisement that is additionally booked (“advertising tile”) may not refer to several objects, providers or offers.
      3. Advertising on Gastfreund must have a clear connection to the users and, for example, correspond to the typical interests of a guest on a trip or a local in their leisure time. At Gastfreund, advertising must be clearly assigned to at least one of the categories offered.
      4. The customer may only advertise with Gastfreund on the platforms, on the network and outside with the express prior consent of Gastfreund. This consent is given, for example, by providing website banners and widgets or marketing material for the respective use and can be revoked at any time.
      5. The advertising idea developed by the contractor for the placement of electronic advertising (Gastfreund TV) and computer graphic implementations are protected works under the German Copyright Act. The client is not entitled to use these works without the contractual basis for the use of Gastfreund TV. If the contractor and the client agree in the contract on a right of use following the placement time, this right of use includes the simple, irrevocable and non-transferable right, unlimited in time, to broadcast the work on the client’s own media platforms (web presence, in-house and store media, etc.). The Client shall be entitled to make any necessary changes to the work for broadcast on its own media platforms.
      6. The client is responsible for the form and content of the motifs and commercials as well as their harmlessness in terms of copyright and competition law. In this respect, the client shall indemnify the contractor against any claims by third parties and against all costs incurred by the contractor as a result. The contractor shall not be obliged to carry out an inspection.
  4. Remuneration, due date, default
    1. All prices are net, plus the statutory value added tax.
    2. Gastfreund can change the prices at any time. Price changes will be communicated to customers in writing in good time before they come into effect.
    3. The customer shall only have a right of set-off if the counterclaims have been legally established or recognised by Gastfreund.
    4. The customer shall only have a right of retention to the extent that their counterclaim arises from the same contractual relationship.
  5. Warranty, liability
    1. Gastfreund shall be liable without limitation in cases of intent or gross negligence, for injury to life, body or health, in accordance with the provisions of the Product Liability Act and, to the extent of any guarantee assumed by Gastfreund.
    2. Without prejudice to the provision in clause 5.1, Gastfreund shall only be liable for ordinary negligence in the event of a breach of material contractual obligations, i. e. the breach of obligations the fulfilment of which is a prerequisite for the proper performance of the contract of use and on the observance of which the customer may regularly rely (“cardinal duty”). In the event of a negligent breach of a cardinal dury, Gastfreund’s liability is also limited to the foreseeable damage typical for the contract.
    3. The contract-typical foreseeable damage according to clause 5.2 sentence 2 amounts per contract year to a maximum of 100% of the annual contract volume (remuneration to be paid by the customer to Gastfreund within the contract year in which the damage event occurs for all services of Gastfreund with regard to the use of the Service by the customer) or EUR 10,000, whichever is higher.
    4. The limitation of liability in clause 5.2 also applies to lost profits and savings.
    5. Without prejudice to the provision in clause 5.1, the strict liability of Gastfreund according to § 536a BGB (German Civil Code) due to defects which were already present at the time of the conclusion of the contract is expressly excluded.
    6. The foregoing limitations of liability also apply in the event of fault on the part of a vicarious agent of Gastfreund and to the personal liability of Gastfreund’s employees, representatives and organs.
    7. The statute of limitations for the customer’s claims for damages based on liability pursuant to clause 5.1 shall be calculated in accordance with the statutory provisions. The limitation period with regard to other claims for damages by the customer is one year. It shall commence at the end of the year in which the claims arose and the customer became aware of the circumstances giving rise to the claim and the person of the debtor or did not become aware of them due to gross negligence, but no later than five years after they arose and ten years after the commission of the act, the breach of duty or the other event triggering the damage.
    8. Gastfreund is not liable for the availability of and access to external links, webcams, services, offers or similar. third parties, and explicitly not for the legality and availability of their content.
    9. The customer is liable for all consequences and disadvantages incurred by Gastfreund as a result of the misuse or unlawful use of the services or as a result of the customer failing to comply with its other obligations under these GTC.
  6. Contract period, termination
    1. The contract period of the user contract is min. one year or the period specified in the order.
    2. If the contract is not terminated by the customer at least three months before the end of the contract term, it is automatically extended for the same period under the same conditions.
    3. Gastfreund may terminate the contract of use at any time with a notice period of 3 months to the end of the month.
    4. Notice of termination must be given in writing.
  7. Privacy Policy
    1. Gastfreund collects, stores and processes the company and personal data (inventory data) obtained within the framework of the contractual relationship and other data which arise within the framework of the performance of the services by Gastfreund, for the purpose of contract processing, invoicing and the performance of the services used by the customer in accordance with the statutory data protection provisions.
    2. By concluding the contract, the customer explicitly agrees that Gastfreund may use customer data, usage behaviour and their analysis to improve the offer and guarantee the business purpose. This data may be passed on to third parties in anonymised form within the framework of the applicable German and European data protection guidelines and may be used in anonymised form for external communication.
  8. Final provisions
    1. In the event that individual provisions of these General Terms and Conditions should be invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provisions shall be replaced by provisions whose content is as close as possible to that of the invalid provisions in a legally effective manner. The same applies to any regulatory gaps.
    2. The law of the Federal Republic of Germany shall apply with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG).
    3. The place of performance is the registered office of Gastfreund GmbH. The exclusive place of jurisdiction for all disputes arising from the contract is the registered office of Gastfreund GmbH if the customer is a merchant within the meaning of the German Commercial Code (HGB) or does not have a registered office or usual place of residence in the Federal Republic of Germany when the action is brought. In case of deviations, the German version of this document shall apply.