of ASNM New Media AG, Boppstraße 10, 10967 Berlin, subsequently ASNM:

 

§ 1 Area of application
Only the following conditions shall apply; contrary or deviating terms and conditions of the client shall not apply unless ASNM has approved those terms and conditions in writing. The following terms and conditions also apply if ASNM provides services to the client unconditional in spite of contrary or from the following terms deviating terms and conditions of the client. The following terms and conditions apply for all future business relationships without requiring a renewed indication.

ASNM is authorized to change or amend the standard terms and conditions including all enclosures like terms and conditions of use and specifications of services at any time with a reasonable advance notice. ASNM has to inform the client about changes in writing. Unless the client objects to the changed terms and conditions within a period of 3 weeks after notification they become valid according to the announcement.

 

§ 2 Subject matter of the contract
ASNM provides the client with services and consultancy services as well as database supported information- and booking applications in form of application service provider solutions (ASP solutions) of various providers as HTML- or XML access. As far as special general terms and conditions apply in addition to the general standard terms and conditions ASNM will point them out when the contract is concluded. If not stated otherwise in the system costs, the provision of technical applications includes the support of the client regarding installation and use and error recovery (so-called first-level-support). ASNM is at liberty to restrict the assistance to individual communication channels (e.g. only email) or to charge additional fees for individual communication channels (e.g. by operating service numbers).

 

§ 3 Rights and duties of the client
ASNM can provide password protected online access for the utilization of the system as well as for the content administration of an application and for the visual design, for an overview of effected bookings or for the setting of commercial conditions. The client is obliged to safeguard the passwords and to protect them against unauthorised access by third parties. The client is liable for an abuse of the access data and possibly arising damages. 

ASNM reserves the right to change or supplement its services in order to improve them or to adjust them to technical developments as far as this is deemed reasonable for the client. ASNM will announce changes in advance within a reasonable period of time unless the changes serve only for product improvement.

 

§ 4 Prices, invoicing and arrears
ASNM is invoicing its services and especially those of third-party suppliers monthly in advance. The invoice will become due with issue and receipt by the client and is payable immediately. The invoicing is done by automatic direct debiting. For other methods of payment ASNM can invoice lump-sum fees for additional expenses of payment transactions.

All prices mentioned are exclusive of the valid VAT rate. For applications activated before the 15th of a month, the first month will be invoiced in full. In the case of booking dependent fees every online booking, independent of possible later cancellations, will be invoiced.

ASNM can adjust its prices in line with the general price development and/or changing target prices of third-party suppliers as far as this corresponds to equity. Price changes can only be claimed for the future and not with retrospective effect and have to be made known to the client one month before they become effective. The notification can be made in electronic form (per email). Price increases entitle the client to an extraordinary termination right which has to be exercised within one month after notification of the extraordinary termination right. If the extraordinary termination right is not exercised by the client the price change is deemed accepted.

The client is in default without a reminder once the date of payment has been exceeded. ASNM is entitled to charge the client any bank charges incurred as a result of the clients failure to honor a direct debit as well as accruing interest in case of a default of payment. Furthermore flat-rate charges for additional expenses can be invoiced.

 

§ 5 Interruption of the performance
In case the client is in default with his payment obligation ASNM is entitled to stop services or the availability of applications until the payment in arrear has been effected.

Should a malpractice of the services provided by ASNM occur and/or if applicable law or a regulation of the contractual relationship is violated by the client or an online-customer of the client, ASNM is entitled to stop services or the availability of applications. This also applies if websites for which ASNM provides applications or contents contain contents which violate applicable law, are against public policy, racist, pornographic or infringe the honour of mankind. The right of ASNM for instant dismissal remains unaffected.

 

§ 6 Duration of the contract
If nothing else has been stipulated contracts run indefinitely. Contracts can be cancelled by both parties with a notice period of 4 months to the end of each month. Unless otherwise stipulated there is no minimum duration.

 

§ 7 Special terms of utilization for applications for the online booking of travel services (internet booking engines)

(1) Data validity
Offers and data described in the applications are supplied to ASNM or the provider entirely or partially by external systems. Therefore the respective contents cannot be checked for accuracy completely. Due to the multitude of offers and prices most systems use caches to reduce the load caused by the multitude of client enquiries. In doing so it is accepted that offers shown might no longer be available or not to the price offered. Thus ASNM cannot assume liability for contextual accuracy, availability, prices offered and booking terms and conditions of offers and data described.

Even so the affiliated consolidators are liable for the accuracy of the transmitted airline fares (consolidator fares) and for the general applicability of the tariff terms they are neither liable for the correct technical implementation in flight bookings nor for airline fares taken directly from associated reservation systems (published fares). Only the confirmation by the ticket issuing consolidator is binding.

ASNM points out explicitly that there might be deviations and abbreviations of pictures and texts in the different applications of travel services offered compared to the brochures published by the suppliers. The client is therefore obliged to check incoming bookings with the help of catalogues and/or flyers published by the tour operators and to inform the online-customer accordingly and/or to obtain the approval of the online-customer if applicable.

(2) Rights and duties of the client
Many applications have a HTML-user interface which is integrated in the clients website e.g. as iframe. Some applications can also be provided as XML-access. The client gains access to the contents via a data interface and can process and use them within the framework agreed, e.g. for presentation on his website.

In these cases the client is entitled to integrate the applications made available to him by ASNM in such a way that his end customers (in the following online-customers) can use the application on his website for the booking of a trip.

(3) Test bookings
The client is entitled to carry out test bookings for function checks of the application. The client has to follow the procedure defined by ASNM for the corresponding application. Correctly entered test bookings will remain unaccounted for in case of a billing of transaction fees.

(4) Approval of tour operators
The client has to ensure in his own responsibility that he has a booking authorisation for all in the application activated tour operators and consolidators (= wholesalers for flight tickets) in form of an agency agreement or as sub-agency. ASNM can ask the client for a written proof. In case a proof is not furnished immediately, ASNM can discontinue its services with reference to a right of retention until the proof has been furnished.

Should a client not be able to furnish an authorization for one or several tour operators the client has to remove the offers of this/these tour operator(s) from his website.

(5) Guarantee
ASNM does not promise special features for the applications provided. In accordance with today’s state of the art, errors in data processing programs cannot be excluded completely. ASNM guarantees that the applications are suitable for the purpose specified in the contract.

Should a defect occur, the client is liable to announce the defect immediately in writing. ASNM has a right for remediation of the defect. Is the remediation failing within a reasonable time the client is entitled to reduce or revoke the contract as from occurrence of the defect. An entitlement for compensation due to failure of performance or defective performance shall be excluded provided that it has not been caused by deliberate or grossly negligent behaviour.

The calculation of damages excludes a loss of profit. Even if a claim for compensation exists on the merits a loss of profit cannot be claimed.

ASNM cannot accept liability that all relevant offers of all airlines, tour operators or other operators in the market are included in the applications provided. Furthermore ASNM cannot accept liability that always the cheapest offer of an operator for a certain service is included in the applications.

The client acknowledges that a 100% availability of the applications cannot be realised from a technical point of view. ASNM and their partners endeavor for a continuous availability of the applications. However, maintenance, safety and capacity issues as well as events not within the sphere of control of ASNM (like e.g. failures of public telecommunication networks, power failures etc.) can lead to temporary failures or a temporary discontinuation of the applications. ASNM is not liable for possible damages of the online-customer or the client due to downtimes.

 

§ 8 Liability
ASNM is fully liable for damages due to missing warranted features. Unless a liability has not been excluded or restricted effectively ASNM is liable in cases of intent and gross negligence.

A liability for slight negligence exists only in case essential contractual obligations have been violated. In cases of slight negligence of essential contractual obligations the liability is restricted to the amount paid by the client to ASNM in the four months prior to the occurrence of the damage.

 

§ 9 Contractual exclusion of set-off
The client is not entitled to declare a set-off against claims of ASNM arising out of this contract. This does not apply for undisputed or legally established claims.

 

§ 10 Data protection and confidentiality
The protection of privacy and personal data is an important concern of ASNM and its partners. The data protection of ASNM and its partners conforms to the valid data protection regulations. To protect user data against random or deliberate manipulation, loss, damage or access by unauthorized parties technical and organisational safety measures are employed by ASNM and its partners. In accordance with the technical development ASNM will urge its technical partners to improve safety measures continuously even so ASNM cannot be made liable for possible violations.

Personal data is information which can be used to identify an online-customer. This includes information like the correct name, address, postal address, telephone number, user-ID, personal password, e-mail address, birthday, credit card number and bank details. Information which cannot be linked to the identity of a user (like e.g. favoured websites or the number of users of a site) is not affected. In all systems offered by ASNM personal data will be stored, processed and utilized in automated data files in accordance with the valid national and European data protection regulations.

Unless explicitly agreed otherwise information submitted and delivered by ASNM is considered confidential. The client has to safeguard passwords and change them and/or has to have them changed immediately as soon as an unauthorized third party might have acquired knowledge of them.

The client has been notified that according to § 33 Bundesdatenschutzgesetz (BDSG) (German Data Protection Act) as well as according to § 3 Teledienst-Datenschutzverordnung (teleservice data protection ordinance) ASNM will collect and process data in machine-readable form for duties resulting from the contract. In case ASNM is using third parties for the fulfilment of the services offered, ASNM is entitled to disclose participant data (network data) as far as this is necessary for the backup of the operation. Neither the client nor third parties are entitled to acquire, to change or to delete data or information not intended for them.

The client has been advised that email communication requires the storage of message contents. The client has also been advised that email communication on the internet does not guarantee confidentiality. As far as emails have not been encoded by the client they are available in plaintext.

Connection data will be collected, stored and evaluated by ASNM for the calculation of the remuneration as well as for performance improvement, for identification, localisation and deletion of disturbances and errors as well as for the protection against abuse and computer sabotage.

 

§ 11 Other terms of use
Both contractual partners have the right to pass or to sell contracts with all rights and obligations. ASNM has the right to have all services or parts thereof provided for by third parties and to assign the invoicing for these services to third parties. A further notification is not required.

To avoid data loss the client is committed to make backups at regularly scheduled intervals in accordance with the risk involved.

The client is responsible for the content and design of his website. The client assures not to publish contents which violate existing law or which are against public policy, racist, pornographic or which offend the honour of mankind.

The client is exempting ASNM of any liability and claims of third parties arising by unlawful behaviour of the client or his online-customers.

As far as the webhosting is undertaken by ASNM the client commits himself not to breach existing law with the homepage/website and to refrain from violations of the criminal law, copyright, trademark law or other personal rights. In case of a violation against this commitment the client is liable for default of a further violation, for a compensation of the damage accrued as well as for an indemnity of damages and claims for reimbursement of expenses of third parties caused by the violation. The right of ASNM for a termination without notice remains unaffected.

 

§ 12 Jurisdiction/choice of law
Exclusive jurisdiction and legal venue for all disputes arising from this contract shall be Berlin if both parties are commercial businessmen. This contract is subject to German law.

 

§ 13 Miscellaneous
The standard general terms and conditions, the special terms of use of individual applications as well as the registration or contract signed by the client contain all agreements between the parties. There are no ancillary agreements. Changes and amendments to this contract or notices of termination must be made in writing. Should one or several of the preceding provisions be invalid or become invalid this does not affect the validity of the remaining provisions. Invalid provisions shall be replaced by provisions that most closely approximate the invalid provision both legally and in economic terms.