Version dated 5th March 2016
1 Contracting parties
1.1 The contracting parties are Seekda GmbH (“Seekda”) and the client. Clients may be hotels and other tourism parties. The clients’ contracting partners (“guests”) are not contracting parties.
1.2 The services by Seekda are linked or coordinated with the services of other partners (e.g. Metasearch channels etc.) on a regular basis. Such services are rendered to the client directly by the partner and the partner is exclusively responsible for the proper rendering of services, even if the services for the client are directly commissioned by the partner, and even if the services are rendered to the client due to group contracts with Seekda. With regard to the partners’ services the conditions or the group contract conditions specified by the partner are in effect.
2 Scope of application
2.1 These general terms and conditions (“GTC”) are in effect this contract between Seekda and the client. The version currently in force at the time of the conclusion of the contract.
2.2 The contractual basis of the business relationship between Seekda and the client are (i) the signed offer of the client and the confirmation by Seekda of the order, (ii) the current service description (“service description”), (iii) these GTC and (iv) other written agreements, which are agreed upon as contents of the contract in individual cases (also all subsequent “contract” or “business relationship”). In the event of discrepancies or deviations the above-mentioned contractual components are in effect in the above-mentioned sequence.
2.3 The client acknowledges these GTC with the signature of the offer. Such an order confirmation can either be done by a regular signature, a digital signature or by providing a valid credit card as digital confirmation of the offer when ordering online. The client is bound to this offer for four weeks starting from receipt of the offer at Seekda. With the acceptance of the client’s offer by Seekda (acknowledgement of an offer) the contract comes into existence. The GTC are in effect for this contract. The GTC are likewise in effect for alterations of contract made following the conclusion of the contract.
2.4 Seekda renders its services exclusively on the basis of these GTC at hand. The client’s terms and conditions do not apply.
2.5 Seekda is entitled to change these GTC at any time. The client already agrees to such changes. Seekda shall inform the clients about the changes to the GTC (“notice”). The modified GTC obtains validity for all present business relationships upon expiry of 2 months from the sending of the notice to the clients. If the client does not agree to the changes, he is entitled to terminate this contract within a period of 30 days from the day of receipt of the notice about the modified GTC. If the client terminates the contract, the contract ends with the end of the month, in which the notice to terminate reaches Seekda.
3 Duration of the contract
3.1 The contract begins with acceptance of the offer by Seekda. Continuing obligations are concluded from the commencement of the contractual relationship for a contract duration as defined in the contract. In particular, those business relationships are considered as continuing obligations, in which Seekda continuously renders services to the client (e.g. Seekda Express, etc.).
3.2 The contract shall extend for additional periods of the contractual period, provided that a contracting party does not give notice signed by a signee having the authority to sign on behalf of the client by registered letter, by email or by fax to the respective other contracting party six months prior to expiration of the respective duration of the contract at the latest. The timely postmarking, time of receipt of email or fax is sufficient.
4 Client scope of services, order fulfilment and duties to cooperate
4.1 Seekda provides online services for the processing of online reservations in the tourism sector. This includes services for the acquisition of data relevant to reservations, reservation modules for linking to websites and reservation portals, interfaces to reservation platforms, interfaces to Metasearch channels and interfaces to hotel management programs amongst others, whereby all applications require the use of the Booking Manager as the base module. Seekda synchronizes the data with the affiliated systems.
4.2 The content and scope of the services to be rendered by Seekda with respect to the client arises from the offer of the client along with the acceptance by Seekda (acknowledgment of the order) and of the service description. Subsequent modifications of the scope of services shall require the written form.
4.3 The client shall immediately provide all information and documents to Seekda, which are required for the rendering of the service. He shall inform Seekda of all processes, which are important for the execution of the order, even if these conditions only become known during the execution of the order. The client bears the cost, which thereby arises, that work must be repeated or be delayed by Seekda as a consequence of his improper, incomplete or subsequently modified information.
4.4 The client is furthermore obligated to examine the data and information (e.g. photos, logos) provided to him in regards to existing third party copyrights, logos, brands and trademark rights or other rights, irrespective of whether the data and information is entered directly by the client or by Seekda into its system or into a partner’s system (e.g. into a Metasearch channel). Seekda is not liable due to a violation of such rights. If Seekda is held liable due to such an infringement by a third party, particularly by a partner, then the client shall completely indemnify and hold Seekda harmless upon the first request. The client must compensate Seekda for all disadvantages, inclusive of costs for legal representation, which arise due to recourse on the part of a third party.
4.5 It is known to the client that misleading, incorrect or rights infringing statements (e.g. star rating, facilities, location, description) may draw claims for damages and other claims. The client completely indemnifies and holds Seekda harmless upon the first request from all such claims.
4.6 The activation of online-services may require a matching of the client’s room type schemes and rate schemes to the room type schemes and rate schemes of Seekda or of a partner (e.g. a booking portal or a Metasearch channel) (“mapping”, “indexing”). The comparison will be performed by the client jointly with Seekda. The client is obligated to provide the required data to Seekda pursuant to the technical requirements. Following the release of the mapping by the client, the interface may be brought into service. A one-time mapping per channel is included in the standard setup expenses. Subsequent mapping adjustments may be performed at the client’s request for a separate fee.
5 Third-party services / commissioning of third parties
5.1 Seekda is entitled at its discretion to assign its contractual obligations to a third-party.
5.2 Provided that services are rendered directly by third parties (e.g. translation services), the commissioning shall take place either in its own name or in the name of the client, but in each instance on account of the client. Seekda shall carefully select such third parties and make sure that they possess the required technical qualification.
6 Deadlines and grace periods, default
6.1 The grace periods and deadlines specified by Seekda are indicative only. Seekda shall attempt to adhere to the agreed upon grace periods and deadlines. A minor failure to comply with the grace periods and deadlines of up to 14 days shall not entitle the client to the enforcement of the consequences of default. In addition, the client shall only then exercise his legal right if he has unsuccessfully warned Seekda under the setting of a reasonable, but at least 14-day final deadline. This grace period begins with the arrival of a written warning to Seekda.
6.2 Following the fruitless expiration of the final deadline the client may rescind from the contract. An obligation to pay damages from the title of the default exists only in the case of intent or gross negligence by Seekda.
6.3 In case of inevitable or unforeseeable events, but also in particular delays with the partners of Seekda shall release Seekda from adherence to the agreed upon grace periods and deadlines in any event. The same is in effect if the client is in default with the implementation of the services of the necessary obligations (e.g. the provision of data and information). In these cases the agreed upon grace periods and deadlines shall be deferred at least to the extent of the client’s or partner’s delay.
7 Termination for cause
7.1 The contract may be terminated prematurely by each contracting party for cause at any time and without adherence to a cancellation period. The following entitles Seekda to a premature termination of the contract:
7.2 In the case of termination of the contract for cause the client must pay Seekda the fee for the remaining period of the contract in full. Furthermore, the client is liable in the case of faults for excess damages of Seekda.
8 Remuneration and due date
8.1 The payment of the services rendered by Seekda shall be made according to the contract. The client agrees to provide Seekda with either a SEPA direct debit authority or with his credit card credential via a secure link to enable Seekda an automated processing of client payments.
8.2 Seekda is entitled to demand advance payments for covering its expense.
8.3 The invoicing of services by Seekda shall take place during the conclusion of the contract in advance for one-time expenses (e.g. set-up fee). Provided that an annual fee for services is due for a product ordered by the customer then the first annual fee is due at the conclusion of the contract and the subsequent annual fees shall be invoiced until the end of the respective previous contractual year.
8.4 Invoices can be delivered to the client by mail as well as in electronic form, whereby both methods are considered equivalent.
8.5 The invoices are due for payment within 14 days from the invoice date without delay if nothing else has been agreed upon in the contract. The remuneration is to be paid/shall be collected in full by Seekda. Seekda is entitled to shorten due dates and rescind from the contract, in case the client defaults payments. Payments are only then considered as effected, when the amount is finally available in the bank account of Seekda. Seekda can at its sole discretion decide to clear with incoming client’s payments the oldest of the outstanding receivables in addition to default interest and costs accrued on it in the sequence: Costs, interest, principle claim.
8.6 In the case of an untimely payment by the client Seekda is entitled to rescind from all current contracts with regard to the services, which still have not been fulfilled. Independent of the rescission Seekda is entitled to withhold its services until the complete payment of the agreed upon fee, i.e. especially to discontinue the online service or to not render the agreed upon services.
8.7 Default interest in the amount of 12% per year is agreed upon.
8.8 The client accepts to bear all costs bound to the recovery of outstanding debts, in particular such as collecting charges or other necessary costs incurring during prosecution.
8.9 In the event of the client’s default on payment Seekda may immediately accelerate all services rendered and subservices, within the scope of other contracts which have been concluded with the client.
9 Ceasing of service
9.1 For all services ordered by the client, which are not performed for a reason, which is not due to Seekda’s fault, the agreed upon fee is due to Seekda in full.
10 Seekda as technical partner
10.1 The contract concerning the respective client’s services comes into existence exclusively between the guest and the client. Seekda merely acts as a technical partner who enables the client to receive guest bookings. Seekda is not a party of the contract between the guest and the client. It is the sole responsibility of the guest and the client to immediately assert all claims from the contract concluded between them. The guest is thereby a direct payer. Seekda is excluded from all related liability.
10.2 Seekda is on no account liable for the unavailability of an item, which was the subject matter of a reservation. Any damage, which arises due to such unavailability, may not be imputed to Seekda.
10.3 Should a contract for a travel event come into existence during mediation by Seekda’s technology pursuant to § 31 b et seq. of the Austrian Consumer Protection Act between the guest and the client, it is incumbent upon the client alone, to ensure for the fulfilment of the additional duties resulting from it.
10.4 The client indemnifies and holds Seekda harmless upon first request from all disadvantages whatsoever, inclusive of the costs for legal representation, especially due to any violations from the lodging contract or due to qualification as a tour operator due to the client’s statements.
11.1 Seekda does not issue any vouchers. If the client demands a prepayment by the guest, the client is responsible for the collection of the prepayment himself.
12 Booking commission
12.1 For products where Seekda receives a booking commission according to the contract this commission is due for every executed booking.
12.2 The basis of calculation for the booking commission is the final room price inclusive of all taxes and fees that the guest has to pay. The right to a reservation commission exists independent of if and when the guest pays the service. The claim for commission occurs at the guest’s date of departure at the latest.
12.3 Billing of the booking commission takes place in periodic intervals, if no other intervals were agreed upon in the contract. If the guest extends or shortens the duration of his reservation, then the booking commission for Seekda shall be adopted in accordance with the total final price to be paid by the guest inclusive of all taxes and fees.
12.4 If a contractual minimum commission has been charged in advance then the monthly commission is being deducted by the already paid minimum commission. If the monthly commission is lower than the minimum commission, then there is no additional commission getting invoiced for this month.
12.5 Commission invoices are due for payment within 14 days from the invoice date without delay.
12.6 It shall be pointed out that a direct client agreement with the partner may exist for certain services. Possible claims for commission by partners based on such agreements must be paid directly to the partners by the client and shall neither reduce the basis for calculation nor the claim for commission from Seekda.
12.7 Services for Metasearch channels may require a prepayment. With the order of one of these channels Seekda may charge an initial prepayment according to the contract. Such a prepayment is used to cover the click costs of Metasearch channels. If the prepayment falls below a threshold calculated by the system, another prepayment is recharged automatically.
12.7 CPC prepayments are non-refundable. A remaining CPC prepayment at time of contract ending is forfeited.
13 Modification of prices and the scope of performance
13.1 Seekda may modify fees according to changes of the consumer price index. The client agrees already now to such changes.
13.2 Changes in fees that exceed the foregoing item 13.1 and major changes of the scope of services rendered to the client are only possible with the client’s approval. Such modifications shall become effective one month following the client’s agreement on the desired changes by Seekda. Seekda shall bring the desired changes in each case to the client and shall call attention to its right of termination. The client has the right, to terminate the contract free of charge until the taking effect of the changes.
14 Warranty and damages
14.1 Notice of defects must be raised in writing immediately following delivery of the goods or rendering of service with providing a concrete description of the defect. The client is met with the duty to immediately inspect the delivered goods and the services rendered for possible defects.
14.2 In the event of justified and timely notices of defects only the right to improvement or exchange of the service is due to the client at Seekda’s option. Improvement or exchange shall take place in a reasonable period, whereby the client allows Seekda to take all required actions for inspection and defect elimination. Seekda is entitled to refuse the improvement of the service, if this is impossible, or is associated with a disproportionately high cost for Seekda.
14.3 The reversal in the burden of proof pursuant to § 924 of the Austrian General Civil Code at Seekda’s cost is excluded. The presence of the defect at the time of the delivery, the time of the determination of the defect and the timeliness of the notice of defects must be proven by the client.
14.4 It is known to the client that the services rendered by Seekda may be based on electronic processes, which could be disturbed despite security measures. In particular, this may result in disturbances with regard to the availability and the accessibility of the Seekda systems for clients as well as for the guest or partner. The liability of Seekda is excluded for such disturbances, especially of Internet disturbances and the connection of the client to Seekda and to partners and guests. Seekda is not liable for the unavailability of services of partners due to network problems or system failures for clients or partners, for booking errors that happen in the client’s or the partner’s system or for the compatibility of the software utilized by the client with the services to be rendered by Seekda or a partner. It is not possible for Seekda to thoroughly inspect the client’s systems as well as the compatibility. No duty to warn shall meet Seekda in this respect. In the event of incompatibilities these must by represented by the client.
14.5 The client’s claims for damages are excluded, especially due to delay, impossibility of service, positive violation of a contractual duty, fault during the conclusion of the contract, inadequate or incomplete service, defect consequential damages, the breach of contractual secondary obligations or due to illicit trade, provided that they are not based on intent or gross negligence by Seekda. All forms of claims for compensation are limited to the contract value excluding taxes.
14.6 Each claim for damage may only be asserted within six months from the notice of the defect or else it will lapse.
15 The client’s information and data
15.1 Seekda is on no account liable for the correctness and completeness of the information and data provided by and gathered by the client or on its account. The client is alone responsible for information and data, which he enters into and maintains in the system of Seekda or of a partner.
15.2 The client alone bears the responsibility for the correctness of the information and data, even if this data was input and/or maintained by Seekda at the request and costs of the client.
16 Connection to Seekda systems
16.1 The client is alone responsible for the set-up and operation of the connection between the client’s system and the system of Seekda. Seekda shall not assume any liability for the performance of this connection and for its availability. In particular, Seekda is not liable for any interruptions of the connection between the client’s system and the Seekda system.
16.2 Seekda is not liable in the event of non-performance or a complete or partial delay during the fulfilment of its obligations, if these must be ascribed to acts of God. The client may not assert any claim for damages in such an event.
17 Data protection
17.1 The client guarantees that the data and information transmitted was processed in accordance with the current legal standards and that he holds Seekda harmless against any claims of third parties that are brought forward against Seekda and refer to an infringement of their rights.
17.2 Seekda is, subject to the clients written revocation that is possible at any time, entitled to refer to the existing business relationship with the client in its own advertising media and in particular on its website with the name and client’s logo.
17.3 The client agrees, that Seekda gathers, stores, processes and transmits personnel- and company related- data within the framework of the legal requirements, provided that this is required for the processing of its services.
17.4 Seekda commits itself to distribute no transmitted records or saved data whatsoever. Seekda is, however, not liable if a third parties gains access to its stored data and information in an unlawful way.
17.5 The client agrees to receiving of product-related information and advertising materials via email. If the client no longer desires this, he may inform Seekda of this in writing.
18 IP rights
18.1 All rights to the software in use and all other intellectual property rights, in particular copyrights for the agreed upon services are exclusively property of Seekda. The client does not acquire any usage right or any other rights whatsoever to the software or to the intellectual property rights belonging to Seekda.
19 Final clauses
19.1 Modifications and/or amendments of this contract require the written form for their legal validity, provided that nothing to the contrary has been agreed upon. The same applies for the waiver from this form requirement. There are no verbal side agreements.
19.2 All enclosures to the contract form an integrated component of the contract.
19.3 All amounts disclosed in the contract are understood exclusive of the value added tax, provided that the value added tax is not declared separately and/or something other is expressly agreed upon in the contract. Provided that the service concerned is legally subject to value added tax, the client undertakes to pay the value added tax to Seekda in addition to the net amounts quoted in the contract.
19.4 The contract is subject to Austrian law excluding its conflict of law rules of the Austrian FAIPL, of the conflict of law rules of the regulation (EC) No. 593/2008 concerning the right to be utilized for contractual obligations (Rome I Regulation) and the provisions of the CISG.
19.5 For all disputes, which arise from the contract or refer to its violation, termination or invalidity, the exclusive jurisdiction of the court having subject matter jurisdiction is agreed upon for the first district of Vienna in Vienna, Austria.
19.6 Should a provision of the contract be void or unenforceable, this does not affect the effectiveness or enforceability of the remaining provisions of this contract. The void or unenforceable provision is effectively replaced by a valid and enforceable provision, which comes as close as possible to the economic purpose of the provision to be replaced. This is also in effect for gaps in the contract where applicable.
19.7 The contracting parties abandon their rights to contest this contract due to error, omission or modification of their business foundation, of the non-occurrence of expectations, lesion beyond moiety or for other reasons, and from altering damages, from requesting contract adaptation or from rescinding from the contract.
19.8 The client is not entitled, to offset the claims by Seekda with his own claims against the claims of Seekda, except when this concerns claims which were judicially established or expressly acknowledged by Seekda. A client’s right of retention is excluded.
19.9 The parties shall treat as strictly confidential the conclusion of the contract and its provisions as well as all information obtained from the respective other party, provided that no disclosure is required for the employees of the company or their elected representative with respect to third parties in accordance with the law or within the framework of reasonable information. Any press releases must be jointly agreed upon.
19.10 Costs associated with the formation of the contract and possible taxes, fees and charges shall be absorbed by each contractual partner separately.
19.11 This agreement is also binding for all legal successors of the contracting parties. The contracting parties undertake to impose the contract on their respective legal successors. Seekda is entitled to impose the contract to a third party at its own discretion. The client already grants his approval concerning this matter and relinquishes possible rights of objection.
19.12 The place of performance for all services in accordance with the contract is the head office based in Vienna.