Conditions of Use

Preamble

bookingkit GmbH, Sonnenallee 223, 12059 Berlin (hereinafter called “bookingkit”), provides a web-based administration, booking and marketing solution for providers of activities and leisure experiences (hereinafter called “the software”) through the URL bookingkit.net (the “website”) under the brand name bookingkit. The products and services are aimed exclusively at commercial enterprises offering leisure activities and looking for a software solution for this (hereinafter called: “the customer”), and are not aimed at consumers. The following terms and conditions govern the relationship between bookingkit and the customer and are also applicable for future contracts between the parties in the latest version at that time even if the local terms and conditions are not explicitly referred to

Object of the Agreement

1. These contractual conditions apply to the use of the software by customers as presented on the website. Where offers from third parties are included, this is made clear to the customer on the website.
2. The software is operated by bookingkit as a web-based SaaS or Cloud solution. The customer can use the software via an internet connection on servers belonging to bookingkit or a service provider contracted by bookingkit for the period of this Agreement for their own purposes. The software can be used to store and process the customer’s data and elements of the software, for example login screens, can be incorporated into the customer’s own website.
3. These contractual conditions are valid to the exclusion of all others. No contractual conditions issued by the customer are applicable. Any counter-assertions by the customer making reference to their own business terms are expressly excluded.

Registration and conclusion of the licensing agreement

1. By registering on the website bookingkit.net , the customer proposes the conclusion of a licensing agreement.
2. bookingkit will verify the customer’s proposal. A confirmation email will then be sent to the customer with a link to confirm the customer’s email address. As soon as the customer clicks on this link, the licensing agreement is formed under the following conditions. bookingkit will confirm this by email.
3. After the contract has been concluded, bookingkit will release the customer’s user account, which the customer can access with their email address and a password (“login information”). This login information must be kept secret and must not be made accessible to third parties. The customer has sole responsibility for all activities associated with their user account.

Type and scope of service

1. bookingkit will provide the software in its most up-to-date version at that time on the router output from the data centre in which the server with the software is located (the “handover point”). The software, the necessary computing power for its use and the necessary storage and data-processing space will be provided by bookingkit, possibly with services offered by third parties which are made clear to the customer as such on the website. bookingkit is not, however, responsible for providing and maintaining the data connection between the customer’s IT systems and the handover point described.
2. bookingkit offers software at various expansion stages, which can be continuously further developed by bookingkit in future. The scope of use depends on the service which has been booked. bookingkit has the right not to make individual features of the software available for specific types of use or to restrict use.
3. If bookingkit appears in the presentation of leisure activities via the software to third parties, this is done as a representative of the customer and bookingkit is in this respect entitled to make and receive declarations for the customer and to receive money for the customer and to pay any fees for the customer. The customer must be informed immediately of any representative activities. Bookingkit is thereby also obliged to act in good faith and not to harm the customer. 

Availability of the software/support

1. bookingkit draws the customer’s attention to the fact that restrictions or interference may arise in respect of the use of the software, which are outside the area of influence of bookingkit. This includes in particular actions by third parties not acting on bookingkit’s instructions, technical conditions affecting the Internet which cannot be influenced by bookingkit, and force majeure. The hardware and software used by the customer, and the customer’s technical infrastructure, can also affect usability of the software. Insofar as such circumstances affect the availability of functionality of software, this does not represent a breach of contractual duties on the part of bookingkit.
2. In order to enable errors to be rectified as efficiently as possible, the customer must report malfunctions, disruptions or restrictions to the software immediately and as precisely as possibly by email to service@bookingkit.de. If the customer fails in this duty, § 536c of the German Civil Code applies accordingly.
3. bookingkit provides a ticket system and processes error messages from Monday to Friday between 09:00 and 17:00 with the exception of public holidays.

Data processing rights and data security, order processing

1. bookingkit complies with statutory data protection conditions.
2. For the purposes of implementing the Agreement, the customer grants bookingkit the right to reproduce data to be stored by bookingkit for the customer, provided this is necessary for use of the software. bookingkit is also entitled to hold the data in a back-up system or separate back-up data centre. Furthermore, bookingkit has the right, for the purpose of remedying faults, to make changes to the structure or format of the data.
3. bookingkit will regularly back up the customer’s data on the server for which bookingkit is responsible on an external back-up server. As far as is technically possible, the customer may extract this data at any time for security purposes, and is obliged to do so at the usual regular intervals. If this is not possible, bookingkit will make the data available to the customer on request as a back-up.
4. bookingkit sends newsletters to existing customers at irregular intervals. In addition to product information and suggestions on how to optimise product use, these newsletters may also include information on product innovations and modifications. On occasion, newsletters will include information on new partners, industry information and other news.
5. bookingkit is constantly in the process of developing its products. When bookingkit introduces new components, it may in some cases analyse the business models and behaviour of its customers to ascertain for whom product innovations may be particularly beneficial and to respond to these customers’ needs in a targeted way.
6. If customers enter their name, email address and telephone number on the website or on a subdomain of the domain www.bookingkit.net in order to agree to a demonstration, these data are encrypted and transmitted to the Customer Relationship Management System Salesforce. The customer receives an automated email to confirm receipt of their information which is sent with the help of the communication programme Mailchimp. During bookingkit’s business hours, a member of the sales team will get in touch with the customer as quickly as possible in order to agree an appointment for an online demonstration. The customer may also be contacted by email.
7. If users of the website or of a subdomain of the bookingkit domain enter their email address, company name, company website and their telephone number to register with bookingkit, system access credentials will be created for them. This may involve test access for a limited period. Registration conditions can be found in the pricing overview at (https://bookingkit.net/pricing/). The information entered by the user will be logged in the bookingkit database and a welcome email will be sent using the Mailchimp communication programme. At the same time, the information entered will be transmitted to the Customer Relationship Management System. If a test access is created, a member of the bookingkit sales team will make contact during business hours to explain the functionality and options involved in the bookingkit system if desired. If a tariff is created, a member of the Customer Success team will contact the user in order to assist with system set-up.
8. If and insofar as the customer processes data or has data processed on IT systems which are the technical responsibility of bookingkit, the customer must inform their users accordingly. bookingkit makes all information on the collection, processing and storage of personal data via its systems in the data protection agreement: bookingkit.net/privacy-statement/.
9. Insofar as bookingkit operates on behalf of the client as an order processor within the meaning of Art. 28 GDPR, the conditions stipulated by bookingkit concerning order data processing apply:  https://eu5.bookingkit.de/accounting/contract .The conditions apply even if they have not been signed separately by both parties, simply as a result of the conclusion of a contract, pursuant to Section 2 of these General Terms and Conditions.

Remuneration

1. bookingkit’s remuneration consists of a monthly base fee, a online transaction fee, a booking fee and a ticket fee. The fees listed on https://bookingkit.net/pricing/ apply upon contract conclusion. The customers pays the ticket fee for each participant who registers for an event held by the customer or who the customer themselves enters via bookingkit. The ticket fee does not depend on whether the customer books, requests or just reserves the event. The online transaction fee applies to all payments that are charged by the customer to the participants of the booked event per transaction and paid for by online payment. The booking fee is due for every order, inquiry and reservation (if no booking follows) that is created via bookingkit for event of the customer or that the customer enters himself via bookingkit. 
2. Any agreed test phase automatically ends after 7 days have elapsed. There is no automatic renewal onto another tariff. The contractual agreement will therefore end automatically as long as no subsequent tariff is agreed. Switching to another tariff is possible even before the 7 days elapse.
3. Depending on the tariff, the customer has the opportunity to change within a period of 12 calendar months in total a maximum of 6 calendar months into a tariff without a basic fee (“seasonal break”). A seasonal break is only possible for full calendar months and begins on the 1st day of the month following the application. The duration of the seasonal break must be given when making the application and must last at least one month. After the seasonal break period which was requested, the customer will automatically revert to their previous tariff, provided the customer does not apply for another seasonal break (as long as the 6 calendar months have not yet elapsed). If the customer ends the seasonal break before the end of the requested seasonal break period and reverts to a tariff with a base fee, the remaining seasonal break period will no longer apply. In the case of an agreed contract term of more than one month, the date of the next possible contract termination is postponed by the ordinary termination of the usage contract by the duration of the “season break” to a correspondingly later point in time.  
4. These fees will be invoiced by bookingkit at the end of each calendar month. The customer has the option of paying the basic fee in advance for a certain period of time (pre-paid period). If the customer claims a seasonal break in accordance with Section 6.3, the pre-paid period is also extended in addition to the contract period. If the contract ends before the end of the pre-paid period, the customer can only request a prorated reimbursement of the advance payment in the event of an extraordinary termination in accordance with Section 6.6 and an extraordinary termination caused by bookingkit in accordance with Section 11.3. Invoices are due for payment immediately.
5. Further fees may be due for the services of third-party providers used by the customer, which may be charged directly by the respective provider. This may concern, for instance, fees charged for online payment services.
6. bookingkit reserves the right to change prices at the end of a respective contract period (initial period or extended period). The customer will be informed at this at the latest 2 weeks before the end of the contractual period by email. If the contract is extended, the adjusted prices will be considered to have been accepted by the customer. A price adjustment of up to 5% of the relevant price unit (base price/ticket fee/online transaction fee/booking fee) during the contractual period is at the discretion of bookingkit and must be notified to the customer five calendar days prior to implementation by email. In this case, the customer is entitled to terminate the contract as an exceptional basis.

Customer’s duty to cooperate

1. The customer will support bookingkit in providing the contractual services, insofar as necessary.
2. The customer is responsible for properly and regularly backing up their data. 
3. The customer must fulfil the system requirements described on the website for use of the software. The customer alone is responsible for this.
4. The customer must not disclose their login information to third parties and ensure that any employees to whom login information is made available also do so. bookingkit’s services may not be made available to a third party unless expressly agreed by the parties.
5. bookingkit reserves the right to suspend the payment of revenues transferred via bookingkit by clients if they are in arrears with the payment of at least two invoices. This withholding serves to secure unpaid invoices, possible return debit notes and to service potential refunds elsewhere. bookingkit is entitled, with prior notification to the customer, to withhold the corresponding amounts from payments received and to use them for the intended purpose.

Guarantee

Subject to special provisions in the local contract conditions, the statutory provisions for guaranteeing rental agreements apply in principle. §§ 536b (Lessee’s knowledge of a defect at the time of concluding or accepting the contract), 536c (defects occurring during the lease period; notice of defects by the Lessee) of the German Civil Code apply. The application of § 536a para. 2 (Lessee’s right to remedy) is, however, excluded. The application of § 536a para. 1 of the German Civil Code (Duty of Lessor to provide compensation) is also excluded, to the extent that the standard provides for liability regardless of fault.

Liability and compensation

1. bookingkit is liable for damage to the customer caused deliberately or by gross negligence, the consequence of the absence of a guaranteed level of quality which is the result of a culpable breach of major contractual duties (“cardinal duties”), the consequence of a culpable injury to health, physical injury or loss of life, or for which liability is incurred under the terms of the Product Liability Act or statutory provisions.
2. Cardinal duties are contractual duties, fulfilment of which actually make correct performance of the contract possible, on whose observance the parties to the contract can routinely rely and whose breach, on the other hand, puts at risk fulfillment of the purpose of the contract.
3. In the case of breach of a cardinal duty, liability is restricted – provided the damage is based only on slight negligence – to such damage as would typically be expected to occur with the use of the software which is the object of the contract.
4. Liability is otherwise excluded, regardless of the legal grounds.
5. If the customer suffers damage as a result of loss of data, bookingkit is not liable if the damage would have been avoided if the customer had regularly and fully backed up all relevant data. The customer will regularly and fully back up data, or arrange for a third party to do so, and has sole responsibility for this.

Customer data and indemnification from third party claims

1. As a technical service provider, bookingkit stores content and data for the customer who inputs and stores this when using the software, and makes it available for retrieval. The customer provides bookingkit with the undertaking that criminal content or data will not be entered, or content or data which is unlawful in any other way either absolutely or relative to individual third parties, and will not use any programmes containing viruses or other malware in connection with the software. In particular, the customer undertakes not to use the software to offer unlawful goods or services. In respect of their own and their users’ personal data, the customer is the responsible party and must therefore always check whether the processing of such data through use of the software is supported by the corresponding permissions.
2. The customer has sole responsibility for all content used and data processed by the customer or the customer’s users, and the necessary legal positions which are required for this. bookingkit is not aware of content created by the customer or their users, and in principle does not check the content used with the software.
3. The customer undertakes in this connection to indemnify bookingkit against all liability and any costs, including possible and actual costs of legal proceedings, if bookingkit is pursued as a result of alleged actions or failures to act by the customer, including such actions by the customer’s employees personally. bookingkit will inform the customer about the pursuit of such claims and, if permissible in law, give the opportunity to defend the claim pursued. At the same time, the customer will provide bookingkit in full with all the information available to them on the facts of the matter and the object of the claim.
4. Any further claims for compensation over and above this remain hereby unaffected.

Period of Agreement and end of Agreement

1. The contractual period is determined from the booking process in accordance with Section 2.1 (“initial period”). The initial period will be automatically extended by the “extension period” indicated during the booking process if neither of the parties terminates the contract in line with the applicable termination notice period.
2. The termination notice period for contracts with a duration of one month is 30 days, and in all other cases it is three months at the end of the contract period.
3. Both parties reserve the right to extraordinary termination for a compelling reason without adhering to the notice period for termination if the statutory conditions for this exist. A compelling reason would be months in which the customer is in arrears with a due payment. If the customer is responsible for the reason for termination, the customer has a duty to pay bookingkit the agreed remuneration, less costs saved by bookingkit up to the earliest date on which the contract would end under conditions of normal termination.
4. Notice of termination of the contract is valid only if made in writing.
5. After the end of the contract, bookingkit must return all the documents and data associated with this contract provided by the customer and still in the possession of bookingkit, and delete data stored by bookingkit unless duties or rights to preserve them exist.

Confidentiality

1. The parties are obliged to maintain permanent confidentiality in respect of all information on the respective counterparty to which they are privy or become privy which is designated as confidential or can reasonably be considered as constituting business or operating secrets on the basis of other circumstances (hereinafter called: “confidential information”). They are furthermore obliged not to disclose this to third parties, record it or use in any other way unless the respective counterparty has expressly agreed in writing to its disclosure or use, or the information has to be disclosed by law, by virtue of a court order or an official decision.
2. Information is not confidential within the meaning defined in section 12 if:

• it was already known to the other party beforehand, without the information being subject to a confidentiality agreement,
• it is generally known or becomes known without breach of the confidentiality agreement given,
• it is disclosed to the other party by a third party without breach of a confidentiality agreement.

3. The obligations arising from this section 12 continue beyond the end of this Agreement.

Transfer of rights and duties

The assignment of rights and duties arising from this contract is permitted only with the prior written consent of bookingkit. bookingkit is entitled to entrust a third party with fulfilment of the obligations arising from this contract.

Miscellaneous

1. The contract is subject to the law of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. The court of jurisdiction is the court with jurisdiction at the registered office of bookingkit, provided the customer is a merchant, legal entity under public law or a special fund under public law.
2. Should any individual clause in this Agreement be invalid, the validity of the other clauses is not thereby affected. The parties will, in this event, work together to replace invalid regulations by regulations which correspond as far as possible to the invalid clauses.
3. bookingkit is not obliged to participate in dispute resolutions before a consumer arbitration board, nor is it prepared to do so. As a result of bookingkit’s cooperative collaboration with contractual partners, discrepancies occur only in very rare cases and are handled within the scope of effective customer management.

The content of this agreement is governed solely by the German language version.