General Terms and Conditions
Status: 21.05.2021
The General Terms and Conditions are available in various languages for your convenience. However, only the German version is authoritative for your contractual relationship with us.
Welcome to the HOTEL MANAGEMENT TOOL "whispers" from datteco srl! Please take a moment to read the following terms and conditions of use, as they govern your visit to and use of our website and services.
INTRODUCTION
1. SCOPE OF APPLICATION
1.1 "WHISPERS" is an offer provided via a web portal (hereinafter: "WEBSITE") and via mobile applications (apps for Android and IOS) (hereinafter: "WHISPERS") of datteco srl (hereinafter: "PROVIDER"), VAT no. 03119520215, with registered office in 39100 Bolzano (BZ), Italy.
1.2 Your use of WHISPERS is subject to the terms of a legally binding agreement between you and the PROVIDER. This legal agreement consists of:
(a) these General Terms and Conditions of Business and Use (hereinafter: "GTC"), and
(b) the PROVIDER's data processing agreement, which is presented in a separate document.
The GTC and the PROVIDER's data processing agreement are hereinafter jointly referred to as the "PROVISIONS".
1.3 The TERMS govern the relationship between you and the PROVIDER in connection with the use of WHISPERS and form an integral part of all agreements made between you and the PROVIDER in connection with the use of WHISPERS. Deviating and supplementary provisions shall only apply if expressly agreed. The PROVISIONS shall apply to all users of WHISPERS and to all visitors to the WEBSITE, as well as to clients and suppliers of the PROVIDER.
1.4 In addition to the PROVISIONS, the use of WHISPERS may be subject to further normative and contractual provisions, including those originating from third party providers with whom the PROVIDER cooperates when you use their services.
1.5 The Terms and Conditions shall apply in all cases, unless their validity has been expressly invalidated in writing before the order is placed and their invalidity has been confirmed in writing by the PROVIDER. These GTC shall also apply to subsequent transactions, even if they are not separately agreed again in individual cases.
1.6 You acknowledge and agree that each member of the group of companies of which the PROVIDER is a member is a third party beneficiary of the PROVISIONS and that such companies shall be entitled to rely on and directly enforce any provision of the PROVISIONS which confers a benefit (or rights) on you.
2. ADOPTION OF THE PROVISIONS
2.1 In order to use WHISPERS, you must first accept the TERMS. By visiting the WEBSITE and/or using WHISPERS, you declare that you have read the TERMS and CONDITIONS in force at the time of use and that you accept them. You should print or save the TERMS and CONDITIONS locally for your records.
2.2 You must not use WHISPERS or accept the PROVISIONS if you
(a) have not yet reached the age required by law to enter into a binding contract with WHISPERS, or
(b) you are barred or otherwise prohibited from receiving or using WHISPERS under the laws of the jurisdiction in which you reside or from which you access or use WHISPERS.
3. LANGUAGE OF THE PROVISIONS
3.1 The contents of WHISPERS are offered in different languages for your convenience. However, your contractual relationship with the PROVIDER shall be governed exclusively by the German text version of the TERMS AND CONDITIONS and the contents of WHISPERS.
4. AMENDMENT OF THE PROVISIONS
4.1 The PROVIDER reserves the right to amend the TERMS in whole or in part at any time at its own discretion and without stating reasons. Should this be the case, the changes to the TERMS shall become effective upon their publication on the WEBSITE. By using WHISPERS after the changes are posted, you accept the changes to the TERMS and you should check the TERMS periodically for changes.
SERVICES AND SUBJECT MATTER OF THE CONTRACT
5. GENERAL
5.1 WHISPERS includes software solutions for entrepreneurs in the tourism sector. The PROVIDER offers an information and planning platform on the Internet and on an application basis, which can be used to support management decisions. WHISPERS thus serves to present the business situation using KPIs and charts and to automatically generate advice for decision-making.
5.2 For the purposes of these GTC, the term "entrepreneur" refers to any natural or legal person who acts for purposes that can be attributed to their commercial, business, craft or professional activity. The entrepreneur also represents the end customer of this product.
5.3 All services offered by the PROVIDER are subject to change and non-binding. This also applies to the prices quoted. The exact scope of services and the nature of the contractual services for entrepreneurs can be found in the corresponding service descriptions, which are presented in this offer and form an integral part of these GTC. Additional services require a separate written agreement with the PROVIDER. The PROVIDER may make changes to WHISPERS and/or the WEBSITE at any time at its own discretion and provide updated versions of WHISPERS and/or the WEBSITE at any time.
5.4 Deadlines stated by the PROVIDER, in particular delivery dates, are only binding if they are confirmed as binding in writing (e-mail is sufficient).
5.5 Unless otherwise agreed, changes to the order shall lead to the cancellation of agreed dates and deadlines.
5.6 The PROVIDER reserves the right to reasonably extend delivery periods in the event of force majeure and all obstacles for which the PROVIDER is not responsible, in particular in connection with the implementation of interfaces which have a significant influence on the delivery or service.
5.7 The PROVIDER is entitled to make partial deliveries and render partial services to a reasonable extent.
5.8 The transmission of data via WHISPERS may incur costs, depending on the Contractor's provider contract.
5.9 The PROVIDER is entitled to display or have displayed advertisements within WHISPERS. However, these advertisements shall not interfere with the operation and functionality of WHISPERS. The PROVIDER shall also be entitled to send you information regarding innovations or offers via WHISPERS.
5.10 By using the WHISPER, the following specific provisions (point 6.) shall apply in addition to the other provisions of these GTC.
6. SPECIAL CONTRACTUAL PROVISIONS
6.1 WHISPERS is offered as Software-as-a-Service (SaaS). The PROVIDER therefore provides the contractual services as a SaaS service provider. The subject of the contractual relationship between you and the PROVIDER is the temporary, non-exclusive and paid provision of software on the Internet. For this purpose, the PROVIDER stores the software on a server that is accessible to you via the Internet and via mobile applications (apps for Android and IOS). WHISPERS enables you to use the information and planning platform provided by the PROVIDER.
6.2 The use of WHISPERS is subject to a fee and is based on a subscription contract. By registering on the WEBSITE or creating a user account, you make a binding declaration that you wish to use WHISPERS for a fee and the contract with the PROVIDER is thereby deemed to have been concluded. All prices and other costs for the use of WHISPERS can be viewed on the WEBSITE and are subject to statutory taxes and/or other charges.
6.3 The subscription contract begins on the day the contract is concluded and is limited to a period of one month or one year from receipt of the log-in data, depending on the subscription selected. It is automatically extended by a further month or a further year if it is not terminated in writing by one of the contracting parties with a notice period of 1 week (monthly subscription) or 3 months (annual subscription) to the end of the contract term (e-mail is sufficient for this). Termination of the subscription contract will result in the deletion of your user account. You are obliged to back up your data on your own responsibility in good time before the end of the contractual relationship (e.g. by downloading). The subscription prices are index-linked and are adjusted annually with periodic billing in accordance with the ASTAT consumer price index for the province of Bolzano. The adjustments are made automatically and without the need for prior notification by the PROVIDER. The inflation adjustment can be made by the PROVIDER either annually or retrospectively for several years.
6.4 The costs for the use of WHISPERS will be invoiced to you monthly or annually, depending on the selection you made when registering your user account. Invoices are issued in advance.
6.5 The invoice is due on sight. You are obliged to pay the amount stated in the invoice without deduction. Payment can be made either via the credit card deposited via your user account or via the bank account associated with your user account and will be debited directly or via SEPA direct debit order. The PROVIDER reserves the right to change the terms of payment.
6.6 Should you be in default of payment, even partially, PROVIDER shall be entitled to suspend its contractual services and block your access to WHISPERS and the existing contractual relationship shall be deemed terminated ipso iure within the meaning of Art. 1456 of the Swiss Civil Code. In the event that the PROVIDER does not make use of the aforementioned express termination clause, your default in payment shall entail the obligation to pay default interest at a rate corresponding to the interest rate pursuant to Art. 5 of Legislative Decree of October 9, 2002, No. 231, whereby the interest claim shall arise automatically and without the need for prior notice of default on the day following the expiry of the respective payment date. In any case, the PROVIDER reserves the right to assert any further claims in connection with the delay in payment.
6.7 If a corresponding agreement on installation, training and consulting services has been made, the Customer must ensure that the necessary requirements on the part of the Customer are met, in particular that the necessary premises, communication channels, documents and personnel are provided. If the Customer does not properly fulfill its obligations to cooperate, the contractually agreed performance deadlines of the PROVIDER shall be extended accordingly. The PROVIDER may charge for the additional expenditure caused by the delay, in particular due to the extended provision of its own personnel or material resources. EUR 80.00 per hour will be charged for additional personnel costs.
6.8 The PROVIDER may withdraw from the existing contractual relationship prematurely and without notice if insolvency proceedings are opened against its assets. The PROVIDER also reserves the right to withdraw from the contract if, in the course of the implementation of WHISPERS into the customer's existing systems, it turns out that the implementation of WHISPERS is not legally or technically possible.
6.9 In the context of your use of WHISPERS, you may not make available or otherwise use any content and information that violates the rights of third parties (in particular in the area of data protection, competition, patent and/or trademark law or other industrial property rights) or violates provisions of the Italian legal system (in particular those of public order and criminal law). You undertake to indemnify the PROVIDER against all claims of third parties in this respect and to reimburse the PROVIDER for all costs and damages incurred directly or indirectly as a result of related infringements.
GENERAL TERMS OF USE
7. YOUR USE OF WHISPERS
7.1 You may only use WHISPERS within the contractually agreed scope of use. The right of use is understood to be limited in time, non-exclusive, non-transferable and non-sublicensable. You are not entitled to any further rights. Any further use requires the prior written consent of the PROVIDER.
7.2 If you exceed your contractually permitted use or otherwise use WHISPERS unlawfully or permit such use, the PROVIDER may suspend its contractual services and block your access to WHISPERS and/or terminate the contractual relationship without further notice. In this case, you are responsible for all resulting damages and/or claims of third parties and are obliged to indemnify the PROVIDER against all claims of third parties.
7.3 WHISPERS is the exclusive property of the PROVIDER. By using WHISPERS you do not acquire any claims or rights to WHISPERS or its contents, in particular not to the software or the WEBSITE. All copyrights, patent rights, trademark rights and other industrial property rights shall remain with the PROVIDER. You are not permitted to reproduce, sell or temporarily transfer, rent or lend WHISPERS, the WEBSITE and/or the PROVIDER's software or parts thereof.
7.4 You are obliged to take all necessary and/or appropriate measures to avoid any unlawful or non-contractual use of WHISPERS. If you recognize or should recognize that an illegal or non-contractual use is imminent, you are obliged to inform the PROVIDER immediately. You are obliged to protect the access authorizations assigned to you as well as identification and authentication information from access by third parties and not to pass them on to unauthorized persons.
7.5 In particular, you are not authorized to translate, modify, edit or decompile, reverse-engineer, extract or disassemble the Software, to discover the source code or create derivative works of any part of the Software or to publicly reproduce the Software by wire or wireless means.
7.6 The PROVIDER shall be entitled to take technical or other measures to protect WHISPERS from non-contractual use and/or to introduce further terms of use at any time at its own discretion.
CONTENT AND LINKS
8. WHISPERS CONTENT
8.1 All content on the WEBSITE including, but not limited to, text, software, scripts, graphics, photos, sounds, music and other interactive elements as well as design, process and flow, customer experience and functionalities of WHISPERS (hereinafter: "WHISPERS Content") is owned by or licensed to the PROVIDER, unless third party rights are indicated, and is subject to copyright, trademark and patent rights or other intellectual property rights of the PROVIDER or its licensors.
8.2 You may only use the WHISPERS Content within the scope of the contractually agreed scope of use. The WHISPERS Content may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed or otherwise exploited without the prior written consent of PROVIDER or its licensors. The PROVIDER reserves all rights not expressly granted in and to WHISPERS Content.
9. HYPERLINKS TO WHISPERS
9.1 The WEBSITE and WHISPERS may contain hyperlinks to other websites which are neither owned nor controlled by the PROVIDER. The existence of such hyperlinks does not constitute an endorsement of the relevant websites and the PROVIDER accepts no liability for their content, services or other activities.
9.2 You acknowledge and agree that the PROVIDER is not responsible for any loss or damage that you may suffer in connection with the availability of such external websites or resources or as a result of your reliance on the completeness, accuracy or existence of any advertising, products or other materials on, available through or offered on such websites.
9.3 When you leave the WEBSITE, be vigilant and check the terms of use and privacy policy of any other website you visit.
EXCLUSION OF WARRANTY
10. EXCLUSION OF WARRANTY BY THE PROVIDER
10.1 The services of WHISPERS including the contents and services of the WEBSITE, as well as all other alias pages of the OPERATOR are provided "as is" and the PROVIDER makes no warranty or guarantee in relation to them.
10.2 In particular and without limitation, WHISPERS does not warrant or guarantee that:
- your use of WHISPERS is not interrupted and/or is timely, secure and/or free from errors or malfunctions; in this case, however, the PROVIDER shall endeavor to restore the availability of WHISPERS as quickly as possible;
- your use of WHISPERS meets your expectations;
- any information you receive in the course of using WHISPERS is accurate or reliable;
- that errors in the operation or functionality of any software provided to you as part of the PROVIDER's services are rectified.
10.3 The PROVIDER assumes no warranty in the event of a missing or inadequate Internet connection, inadequate hardware or if the customer uses outdated operating systems. Furthermore, the PROVIDER assumes no warranty for errors, malfunctions or damages that are due to improper operation, changed operating system components, interfaces and parameters, use of unsuitable organizational means as well as abnormal operating conditions (in particular deviations from the installation conditions). If modifications are made to WHISPERS by the customer or third parties, the warranty claim shall lapse unless the customer proves that the error is not attributable to the modification.
10.4 Warranty claims must be made in writing (e-mail is sufficient). The defect complained about must be sufficiently described and identifiable for the PROVIDER; the customer must also provide the documents and information required to rectify the defect.
10.5 In the event of only an insignificant reduction in the value or suitability of the service, rescission of the contract is excluded.
10.6 The customer is not entitled to rectify errors himself or have them rectified by third parties and to demand compensation for the necessary expenses.
10.7 The PROVIDER is entitled to have services owed by it performed by suitable third parties.
10.8 No other conditions, warranties or other terms (including any terms as to satisfactory quality, fitness for purpose or conformity with descriptions) shall apply to the PROVIDER's performance either, unless expressly stated otherwise in these GTC.
DISCLAIMER/LIMITATION OF LIABILITY
11. EXCLUSION OF LIABILITY/LIMITATION OF LIABILITY OF THE PROVIDER
11.1 The PROVIDER shall not be liable for any damages (including indirect or consequential damages and loss of profit) arising directly or indirectly from the use of WHISPERS, except in cases of willful misconduct or gross negligence.
11.2 The PROVIDER shall not be liable for any actions or decisions taken on the basis of WHISPERS. WHISPERS only serves to support the Client and makes recommendations. The final decision to accept these recommendations lies exclusively with the Client.
11.3 The PROVIDER shall not be responsible for any permanent or temporary errors, omissions, interruptions, deletions, defects, delays and/or adjustments in the operation, transmission and/or provision of WHISPERS' content and services, communication line failures, unauthorized access to data or theft. Furthermore, the PROVIDER is not responsible for problems or technical malfunctions in connection with the mobile Internet, telephone networks or lines, online systems, servers or providers, computer equipment, software, as well as for failures of e-mails or the service provider for processing electronic payments due to technical problems or data congestion on the Internet, or a combination thereof. Likewise, the PROVIDER shall not be liable for any changes which it should make to WHISPERS.
11.4 The PROVIDER shall not be liable for any damages you may suffer as a result of reliance on the completeness, accuracy and/or existence of any advertising and/or offers or in connection with any relationship or dealings between you and any advertiser or sponsor whose advertising appears in connection with the use of WHISPERS.
11.5 You are solely responsible for all content and information that you provide or otherwise use in connection with the use of WHISPERS. The PROVIDER assumes no liability for this and you are obliged to indemnify the PROVIDER against all claims of third parties in this respect and to reimburse the PROVIDER for all costs and damages which the PROVIDER may incur directly or indirectly as a result of related infringements.
11.6 The PROVIDER shall not be liable for storage errors, deletion, loss and/or corruption of data that you provide, create or receive in the course of using WHISPERS.
11.7 The PROVIDER shall not be liable for the unauthorized acquisition of personal customer data by third parties (e.g. through unauthorized access to WHISPERS by hackers). The PROVIDER can also not be held liable for the misuse by third parties of content and information that you yourself have made accessible to third parties.
11.8 The exclusions or limitations of liability contained in this clause 11 shall apply regardless of whether the PROVIDER has been advised of and/or was aware of the possibility of such claims, losses and/or damages occurring. They also apply insofar as the liability for legal representatives and vicarious agents is concerned.
11.9 The exclusions or limitations of liability of the PROVIDER contained in this Section 11 shall not apply in cases of intent or gross negligence.
ASSIGNMENT OF CONTRACT
12. EXPRESS ASSIGNMENT CLAUSE
12.1 The PROVIDER reserves the right to assign the present contract or all rights and obligations arising from it to a third party or a company belonging to the PROVIDER. You will be informed in advance of any such assignment of the contract. As soon as the assignment of the contract takes effect, the third party shall assume all rights and obligations of the PROVIDER in relation to the part assigned to it.
CONTRACT TERMINATION
13. EXPRESS TERMINATION CLAUSE
13.1 If you breach any of the provisions of Section 6 (Special Contractual Provisions) - and in particular the provisions under 6.5, 6.6, 6.7 and 6.8 -, Section 7 (Your Use of WHISPERS) - and in particular the provisions under 7.1, 7.2, 7.3, and 7.4 -, Section 8 (WHISPERS Content) - and in particular the provisions under 8.2 - and/or Section 11.4 (Responsibility for content and duty to indemnify), this shall constitute a serious and material breach of contract pursuant to Art. 1455 of the Swiss Civil Code and shall ipso iure result in the termination of the contractual relationship between you and the PROVIDER within the meaning of Art. 1456 of the Swiss Civil Code, without prejudice to the assertion of further claims and compensation for all damages. In the event of premature termination of the contractual relationship in accordance with the provisions of this point, you are in any case obliged to pay for the services used up to the time of termination of the contract.
FINAL PROVISIONS
14. APPLICABLE LAW
14.1 Italian law shall apply to all relationships between the contracting parties, including these GTC, to the exclusion of the conflict of laws provisions. Any mandatory consumer protection provisions that may apply shall remain unaffected by this choice of law clause.
15. JURISDICTION
15.1 The exclusive place of jurisdiction for all disputes arising from and in connection with the relationship between the contracting parties, including these GTC, is Bolzano, Italy. Any mandatory consumer protection provisions that may apply shall remain unaffected by this agreement on the place of jurisdiction.
16. PLACE OF PERFORMANCE
16.1 The place of performance for all contractual services is the legal domicile of the PROVIDER.
17. SEVERABILITY CLAUSE
17.1 Should one or more provisions of these GTC be or become invalid and/or ineffective, this shall not affect the validity and effectiveness of the remaining provisions.
18. TOLERATION
18.1 Should you violate the provisions of these GTC, any tolerance of this violation by the PROVIDER shall in no case result in the waiver of its rights and other effects under the relevant provisions or the waiver of the right to full performance of the obligations and conditions of the contractual relationship and/or these GTC.