1.1 The following General Terms and Conditions (“GTC”) apply to deliveries and services in connection with software license products, in particular the software solution offered by RATEBOARD with the support of which hotel operators can determine the best possible prices for hotel rooms that are still vacant (hereinafter referred to as “SOFTWARE”) including documentations (hereinafter “PRODUCTS”) of RateBoard GmbH (hereinafter “RATEBOARD”).
1.2 By accepting RATEBOARD’s offer, the customer declares that he accepts these General Terms and Conditions. These GTC apply to subsequent transactions as well, even if they are not separately agreed on again in individual cases. General terms and conditions of the customer are excluded even without explicit or repeated objection for the entire duration of the business relationship.
1.3 Deviations from these General Terms and Conditions, other statements and commitments by RATEBOARD are only binding if they are made in writing, whereby email and other forms of electronic transmission are sufficient.
2. Quote, conclusion of contract, right of withdrawal, and contract term
2.1. Quotes by RATEBOARD are non-binding, in particular with regard to prices, delivery times, and ancillary services.
2.2. After contacting the customer, RATEBOARD will create a quote based on the previous information exchange with the customer. The scope of the products to be delivered by RATEBOARD and any additional services required will be determined individually in consultation with the customer in this quote.
2.3 Upon acceptance of the quote by the customer, the contract is concluded. Immediately after acceptance of the quote by the customer, RATEBOARD will send log-in data to the customer. From the first log-in, the customer has a free right of withdrawal for one month. Within this month the customer can withdraw from the contract at any time by submitting a written declaration (email is sufficient) to RATEBOARD. The customer’s access will be blocked immediately after receipt of the declaration of withdrawal. In this case, the customer has no right to use the SOFTWARE and is responsible for uninstalling the SOFTWARE and the interface (see Section 3.1.).
2.4 In the event that, in the course of the implementation of the SOFTWARE into the existing systems of the customer, it should turn out that the implementation of the SOFTWARE is legally or technically not possible, RATEBOARD reserves the right of withdrawal from the contract.
2.5 If the customer does not withdraw from the contract within one month after the first log-in, the agreed license costs shall become due unless otherwise agreed.
2.6. Unless otherwise agreed, the term of the contract is twelve calendar months from the date of receipt of the log-in data in accordance with Section 2.3. The contract is automatically renewed for a further twelve calendar months unless the customer terminates the contract in writing (email is sufficient) at least three months prior to the end of the contract year.
3. Installation, implementation of the interface, training and consulting
3.1. For the SOFTWARE to function, an interface to the customer’s software has to be implemented. Unless otherwise agreed, the customer is responsible for the proper installation of the delivered PRODUCTS. RATEBOARD may, upon request, provide the customer with a list of companies that perform the necessary implementation of the interface. Access to the SOFTWARE, if necessary, is only possible after successful implementation of the interface.
3.2. All costs incurred in implementing the interface are borne by the customer.
3.3. If an appropriate agreement has been concluded regarding installation, training and consulting services, the customer must ensure that the necessary customer requirements are met, in particular that the required premises, communication channels, documents and personnel are provided. If the customer fails to duly fulfill its obligations to cooperate, RATEBOARD’s contractually agreed execution periods shall be extended accordingly. RATEBOARD may charge for the additional expenses caused by the delay, in particular from the prolonging of the provision of its own staff or material.
4 Delivery deadlines
4.1. Deadlines specified by RATEBOARD, in particular delivery dates, are only binding if they have been confirmed in writing (email is sufficient) as binding.
4.2. Order changes will result in the cancellation of agreed dates and deadlines, unless otherwise agreed.
4.3. RATEBOARD reserves the right to reasonably extend delivery deadlines in the event of force majeure and all obstacles for which RATEBOARD is not responsible, in particular in connection with the implementation of interfaces (see Section 3.3) which have a significant impact on the delivery or service.
4.4. RATEBOARD is entitled to partial deliveries and partial services to a reasonable extent.
5.1 Prices and license fees are in euros plus VAT, and apply only to the respective order. Individually designed services (training, programming services, consulting, etc., as well as travel costs, and travel times) will be charged according to a separate agreement.
5.2. PRODUCTS for which fixed prices are not expressly agreed will be charged at the list prices valid on the day of delivery.
5.3. RATEBOARD reserves the right to adjust the prices by any additional costs incurred between the time of the conclusion of the contract and the delivery, if a delivery period longer than three months from acceptance of the quote is agreed, however not exceeding 20% ??of the order value.
5.4. The value stability of the license fees to be paid for the SOFTWARE shall be agreed on. The consumer price index 2015 (basis: 2015 = 100), which is published monthly by Statistics Austria, or an index replacing it, shall serve as a measure for calculating the value stability. The reference value used is the index number calculated for the month in which the contract was concluded.
6. Retention of title, copyright, granting of rights, confidentiality
6.1. All proprietary rights to the PRODUCTS belong to the copyright holder of the SOFTWARE. In the event of breach of contract by the customer, in particular in the event of infringement of property rights, default in payment or anticipated suspension of payments, RATEBOARD is entitled to terminate the SOFTWARE usage license with immediate effect.
6.2. The customer receives a time-limited, non-exclusive, non-transferable, non-sublicensable, temporary, simple right to use the PRODUCTS (SOFTWARE and documentation). The right of use authorizes the customer to use the PRODUCTS in his company premises for a certain period of time against payment of the agreed prices. It is permitted to make copies for archival purposes and for backup purposes, provided that all copyright notices in these copies are transferred without modification.
6.3. The transfer of the SOFTWARE, the granting of sub-licenses, the assignment of the license, and the use of the software within an Application Service Provider (ASP) is inadmissible or requires the explicit, written approval of RATEBOARD.
6.4. The customer is not entitled to use the SOFTWARE for purposes other than those agreed, outside of hotel operation or to create solutions for himself or third parties, for payment or free of charge.
6.5. The customer is, in particular, not permitted to translate, modify, or edit the SOFTWARE, reverse engineer, extract or decompile, discover the source code, or create edits of any part of the SOFTWARE. Moreover, the customer is not permitted to publicly reproduce the SOFTWARE over wire or wirelessly. If decompilation permitted in accordance with § 40e UrhG is carry out, the results are to be used exclusively to establish interoperability. Abuse will result in damages. The customer has sole responsibility for compliance with the license terms of the other software used by the customer, possibly in connection with the implementation of the SOFTWARE.
7.1. The subject of the warranty is the SOFTWARE exclusively in the version delivered by RATEBOARD. Faults in the SOFTWARE due to subsequent changes by the customer or errors in the operating system of the customer or third-party products are not subject to the warranty. The presumption of defectiveness according to § 924 ABGB is excluded.
7.2. RATEBOARD warrants for a period of twelve months from the date of handover (initial log-in) that the SOFTWARE will be delivered as set out in the user documentation and on faultless data carriers and that the PRODUCTS comply with the agreed specifications.
7.3. With the exception of agreed updates (see section), the customer is not entitled to program extensions after delivery, even if these become necessary due to legal changes.
7.4. RATEBOARD is not liable for missing or inadequate Internet connection, lack of hardware or if the customer does not use up-to-date operating systems. Furthermore, RATEBOARD assumes no responsibility for errors, malfunctions or damage resulting from improper operation, changed operating system components, interfaces and parameters, use of unsuitable organizational means or abnormal operating conditions (in particular deviations from the installation conditions). If changes are made to the PRODUCTS by the customer or third parties, the warranty claim expires, unless the customer proves that the defect was not due to the change.
7.5 Warranty claims must be submitted in writing (email is sufficient). The alleged error must be adequately described and identifiable for RATEBOARD, and the customer must also provide the documents and information necessary for troubleshooting.
7.6. RATEBOARD reserves the right to eliminate faults at its discretion by rectification, replacement with faultless PRODUCTS or by changing the service, unless such correction is not reasonable for the customer. If RATEBOARD remedies the defect by changing the performance, RATEBOARD will not substantially change the originally agreed scope of performance. The customer shall assist RATEBOARD in correcting errors to the extent necessary.
7.7. The customer can only request the reduction of the license fee when the defect is rectified by changing the agreed scope of service or the withdrawal from the contract in case of final failure of the rectification of defects.
7.8. Modification of the contract is excluded in the event of only insignificant reduction in the value or suitability of the service.
7.9. The customer is not entitled to eliminate errors himself or have it done by third parties and to demand compensation for the necessary expenses.
7.10. RATEBOARD is entitled to have services it owes under the contract provided by suitable third parties.
8. Limitations of liability
8.1. RATEBOARD is not liable for any actions or decisions made based on the SOFTWARE. The products of RATEBOARD are only intended to support the customer and make recommendations. The final decision to accept these recommendations lies exclusively with the customer.
8.2. RATEBOARD is not liable for maintenance-related failures or other failures of the provided SOFTWARE.
8.3. It is the customer’s responsibility to regularly back up data. We recommend a daily backup. RATEBOARD is not liable for any loss of data in the event of failure to perform backups or faulty backups.
8.4. RATEBOARD is only obligated to compensate for damages if the damage is due to gross negligence or intent on the part of RATEBOARD. Compensation for damages in case of slight negligence is expressly excluded. RATEBOARD is not liable for indirect damage, consequential damage, loss of data, interruption of operations, claims of third parties, damages due to force majeure, or loss of profit.
8.5. RATEBOARD’s liability for damages caused by gross negligence is limited to 500,000.00 euros. The stated exclusions/limitations do not apply to personal injury. Claims based on mandatory statutory provisions remain unaffected.
8.6. Claims for damages become statute-barred after the legal regulations, however at the latest with expiration of one year from knowledge of the damage and the damaging party.
9. Updates, technical support, securing of value
9.1. The SOFTWARE supplied by RATEBOARD requires updates in order to work effectively. Updates are enhancements and extensions to existing components, and also include program maintenance, data backup, and consistency. Updates replace previously licensed parts of the SOFTWARE and are automatically installed and adopted by the SOFTWARE. Updates may result in temporary failures of the SOFTWARE.
9.2. The service/maintenance includes updates and the installation of features that can be added or additionally programmed in consultation with the customer.
9.3. During the contract period, the customer is entitled to receive free support via the RATEBOARD Help Center at support.rateboard.io.
9.4. Telephone or personal support (on site), which goes beyond the free scope of the RATEBOARD Help Center, must be agreed on separately in writing (email is sufficient) and is in any case subject to a charge.
10. Privacy, confidentiality, and consent in accordance with § 107 TKG
10.2. The customer is obliged to keep confidential the data, information and documents received in connection with the use of the PRODUCTS, and to not disclose it in whole or in part, or to make it directly or indirectly accessible to third parties without the prior written consent (email is sufficient) of RATEBOARD. This does not apply to the permissible transfer of information in connection with the installation of the PRODUCTS or the implementation of the interface in accordance with Section 3 and within the framework of permissible activities in accordance with Section 6.5.
10.3. The customer shall also undertake to keep the assigned user data (password and username) confidential.
10.4. The above obligations shall apply beyond the agreed contract period.
10.5. The customer agrees to receive messages for advertising purposes within the meaning of § 107 TKG from RATEBOARD or a company commissioned by RATEBOARD. This consent can be revoked by the customer at any time.
11. Final provisions
11.1. The right of use granted to the customer cannot be transferred by legal transaction. In all cases of succession under the law or in case of changed legal and economic conditions of influence on the part of the customer, RATEBOARD is entitled to terminate the contractual relationship within a period of three months after becoming aware of it and a notice period of three months. The customer is obligated to inform RATEBOARD of any changes described above within 14 days in writing (email is sufficient).
11.2. The invalidity or nullity of individual provisions of these GTC shall not affect the validity of the remaining provisions of these GTC. The ineffective or nullified provisions shall be replaced by valid and enforceable ones which come closest to the intended purpose economically and legally. This also applies mutatis mutandis in the event of a gap in the GTC.
11.3. Changes to the General Terms and Conditions: RATEBOARD is entitled to change these GTC. RATEBOARD will inform you of changes to the GTC by sending them to the email address specified on the quote of the customer. The change of the GTC entitles the customer to terminate the contract within a period of one month in writing (email is sufficient).
11.4. Applicable law, place of performance, and place of jurisdiction
11.4.1. All legal relationships between RATEBOARD and the customer arising out of and in connection with all quotes, products and services, with the exception of conflict of laws provisions - are governed exclusively by Austrian law. The applicability of the principles of conflict of laws and the UN Convention on the International Sale of Goods (CISG) is excluded.
11.4.2. Place of fulfillment is the seat of RateBoard GmbH.
11.4.3. Disputes arising out of and in connection with all offers, PRODUCTS and services are the responsibility of the competent court in Innsbruck (Austria).