This is an automatically generated translation, our terms and conditions are valid in German only.
1. Scope, Form
These General Terms and Conditions (hereinafter referred to as "GTC") apply to all business relationships between Smart Host GmbH, Am Kupfergraben 6a, 10117 Berlin (hereinafter referred to as "Smart Host") and its customers (Customer and Smart Host hereinafter each individually also a "Party" and jointly the "Parties"). The GTC apply only if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
These GTC apply in particular to contracts for the temporary provision of standard software from Smart Host to the customer.
These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that Smart Host has expressly consented to their application in writing or text form (e.g. letter or e-mail). This consent requirement shall apply in any case, e.g. even if Smart Host provides the contractual services to the customer without reservation in the knowledge of the customer's general terms and conditions.
Individual agreements made with the customer in individual cases (including ancillary agreements, supplements and amendments) shall take precedence over these GTC. For the content of such agreements, subject to proof to the contrary, a contract or the confirmation of Smart Host in written or text form shall be authoritative.
References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
2. Contract Conclusion
We send the customer an order form that contains the essential contractual conditions (hereinafter referred to as the "order form") but does not yet constitute a binding offer by Smart Host. The customer can then sign and return the order form. The contract is concluded by our confirmation of the conclusion of the contract, in particular by a countersigned return of the Order Form by Smart Host.
3. Subject Matter of the Contract, Services
The concrete subject matter of the contract results in detail from the service description in the offer of Smart Host.
Smart Host offers a software solution for the optimized use of customer and other data held by the Customer (hereinafter referred to as the "Service"). The subject of the contract is the provision of the Service for the use of the functionalities listed in the service description. Smart Host makes the Service available for use by the Customer as Software-as-a-Service via the Internet. The customer uses the service via his customer account.
Smart Host initially sets up the service for the customer in the course of an onboarding process. Unless otherwise agreed, this is done by remote maintenance.
During the term of the contract, the service also includes all updates and other version changes within the product that is the subject of the contract in accordance with the provision under 4.4.
Smart Host also offers the customer support in case of technical problems and optimal use of the service (support). Support is provided on working days, from 9:00 a.m. to 6:00 p.m., via e-mail, telephone and chat (hereinafter "Service Hours"). "Working days" in the sense of these GTC are all days from Monday to Friday with the exception of public holidays at the registered office of Smart Host.
4. Availability and Maintenance
The Service shall be available to the Customer on average 99% of the time during the calendar year (hereinafter "Availability Time"), provided that the Service is used in the contractually agreed sense. The availability time does not include outages caused by
announced maintenance after 4.3;
unforeseeable, urgent maintenance work, e.g. to eliminate security vulnerabilities;
force majeure or other events beyond Smart Host's control that could not have been foreseen and prevented by Smart Host, including but not limited to strikes, lawful lockouts, special weather conditions, power outages, traffic disruptions, fire damage, epidemics and pandemics (including but not limited to COVID-19), changes in law and governmental orders, and operational disruptions or supply difficulties, to the extent not caused by Smart Host;
Third parties who are not vicarious agents of Smart Host;
the customer or the software or hardware used by him or the Internet connection. This also applies to software whose use Smart Home has mediated and/or whose connection it enables through interfaces.
The availability is calculated according to the following formula: (Maximum Availability - Downtime) / (Maximum Availability × 100)
Smart Host is entitled to carry out regular maintenance work, but will try to keep interruptions to a minimum. Smart Host shall inform the customer at least three days before the work is to begin. In urgent cases, for example to eliminate security vulnerabilities, Smart Host may shorten the notice period or, if not otherwise possible, begin maintenance work without prior notice. If prior notice is not possible, the customer must be informed immediately after the work has begun.
Smart Host is entitled, but not obligated, to perform updates of the service as part of the maintenance work. Smart Host is entitled to adapt and change the performance spectrum of the service to technical progress, provided that the agreed functionalities are not significantly impaired. Smart Host does not have to pay attention to a possible downward compatibility with software of third parties that does not correspond to the respective current status and/or to a possible interoperability with software of third parties. Something else shall only apply if this interoperability has been expressly agreed as a condition. Warranty claims remain unaffected.
The Customer shall immediately report malfunctions not caused by maintenance work via the communication channels specified in 3.5 and shall ensure that it provides the following information:
Description, date and time of the incident,
preliminary classification of priority according to 4.6,
Measures already taken by the to remedy the incident.
Upon request, the Customer shall provide any further assistance and information necessary to remedy the incident.
Insofar as the customer has reported a malfunction in accordance with 4.5, the following response times shall apply:
The use of the service or essential parts of it is not possible or only possible with severe restrictions, in particular due to malfunctions, incorrect work results or considerably delayed response times.
The use of the service is significantly limited.
The use of the Service is not directly and/or significantly affected, but basic functions are significantly affected.
The functionality of the service is not limited, but there are minor errors (bugs).
If Smart Host does not agree with the customer's preliminary priority classification, Smart Host shall determine a different priority level at its reasonable discretion (§ 315 BGB).
If an adequate workaround is available or provided by Smart Host, the fault is considered to be of priority level 4.
Within the applicable response times, Smart Host will begin to correct the fault. Times outside the service times are not considered response times.
Smart Host is not obligated to remedy the disruption within the response times, but must make efforts to remedy the disruption within a reasonable period of time and will inform the customer accordingly within a reasonable period of time.
No maintenance obligations exist with regard to third-party software.
Smart Host is entitled to use the services of third parties to fulfill the contract.
6. Customers' Rights of Use
Smart Host grants the customer a worldwide, non-exclusive, non-transferable right, limited to the term of the contract, to use the service for its own purposes, i.e. by its own employees, to manage its own data. The right of use is limited to using the service cloud-based on the hardware provided by Smart Host for this purpose.
The customer must adhere to the agreed scope of the license. If he exceeds this scope, Smart Host is entitled to demand additional reasonable remuneration.
Customer acknowledges that the exclusive rights to the Service and all included technologies and provided documentation are owned by Smart Host. Nothing in this Agreement shall be construed as conferring any rights whatsoever to Customer in the Service or any part thereof. All rights in the Service not expressly granted to Customer in this Agreement are reserved by Smart Host.
Customer may not use the Service for purposes other than those specified in the Agreement and shall protect the Service from unauthorized access by third parties. Without limiting the generality of the foregoing, Customer shall not, in particular, (i) use the Service or any part thereof for any purpose other than for processing its own data, (ii) distribute, sell, resell, lease, rent, loan or otherwise transfer, sublicense or assign any rights in the Service or any part thereof to any third party without Smart Host's prior written consent, (iii) disclose or make available to any third party or permit any person other than an employee to use the Service or any part thereof in any manner; (iv) modify, add to, alter or adapt the Service; (v) reverse engineer, decompile, translate, disassemble the Service or any part thereof, or disassemble and/or otherwise attempt to obtain the source code or any part thereof (except as permitted under 6. 5); (vi) make copies of the Service or any portion thereof; (vii) use the Service to develop a competing product or service; (viii) disable, modify or circumvent any license management system or security mechanism provided with the Service, (ix) access or use the Service to provide data processing or batch processing services to others; or (x) remove, alter or conceal any proprietary or copyright notices, trademarks or other identifying marks of Smart Host or any third party rights holder.
The Customer's statutory rights under Section 69d (2) and (3) and Section 69e of the Copyright Act shall remain unaffected, provided, however, that (i) decompilation pursuant to Section 69e of the Copyright Act may only be performed upon prior written request to Smart Host in which the Customer requests the required information and Smart Host does not provide the required information within two weeks, and (ii) the parties shall enter into an appropriate confidentiality agreement that ensures the protection of the Service and the source code from access by third parties.
Smart Host enables the customer to process its own data (hereinafter "customer content") within the scope of using the service. The customer grants Smart Host a worldwide, non-exclusive right to the Customer Content, limited to the term of the contract, to use the Customer Content within the scope of the Service in order to provide the contractual services. This includes, in particular, the right to reproduce the customer content and to make it publicly accessible within the scope of the service for the users intended by the customer. Smart Host is entitled to transfer these rights to third parties to the extent necessary to provide the service, in particular to host providers. For reference purposes, the customer grants Smart Host further rights in accordance with the provision under7.2.
The Customer agrees to be named as a reference customer in Smart Host's advertising and grants Smart Host the worldwide, non-exclusive right, limited to the term of the contract, to name the Customer by name and, in particular, to use the Customer's company, brand(s) or corporate identifiers for this purpose. Insofar as the customer content includes image material, Smart Home is also entitled to use this in connection with a reference in advertising. Exclusively for this purpose, the Customer grants Smart Host a worldwide, non-exclusive right, limited to the term of the contract, to reproduce, distribute, make publicly accessible or otherwise publicly reproduce the corresponding Customer Content. This also applies to the use of screenshots of parts of the service adapted to the customer as an example of its performance and functional scope.
The Customer shall be responsible in accordance with the following provisions for such Customer Content processed by it and its agents (whether or not the use of the Service by them is permitted) within the scope of the Service:
The Customer shall ensure that the Customer Content does not violate or infringe any statutory provisions and/or rights of third parties, in particular the intellectual property of third parties, their personal rights, provisions under competition law or data protection law. The Customer shall ensure that it is authorized and able to grant the rights of use pursuant to 7.1 and 7.2.
If the customer violates the obligations under 7.3.1, Smart Host is entitled to require the customer to stop processing infringing content with the service and to delete it. To the extent necessary, Smart Host is entitled to delete the infringing Customer Content without prior notice. Furthermore, the customer shall indemnify Smart Host against any third party claims resulting from the infringement, reimburse Smart Host for reasonable legal defense costs and provide Smart Host with all information, documents and statements required for the legal defense.
8. Term, burial of the contract
The contract is initially concluded for the duration of the period specified in the Smart Host offer (hereinafter referred to as the "minimum contract term"). The minimum contract period begins with the completion of the onboarding process. The contract is automatically renewed for a further 12 months at a time (hereinafter referred to as the "renewal period") unless it is terminated by one of the parties with 3 months' notice prior to the expiry of the minimum term or the then current renewal period.
The contract may be terminated by either party without notice for good cause (extraordinary termination). Good cause justifying extraordinary termination by Smart Host exists in particular if
the customer culpably breaches an essential contractual obligation incumbent upon him and does not cease this breach of obligation despite a warning from Smart Host - insofar as such a warning is required - or does not restore the condition contrary to the contract within a reasonable period of time set by Smart Host for this purpose;
the customer's financial circumstances have deteriorated significantly so that the proper fulfillment of Smart Host's claims appears to be at risk;
the customer becomes insolvent or is threatened with the opening of insolvency proceedings, dissolution, liquidation or conversion.
Declarations of termination must be in writing to be effective.
9. Remuneration and Terms of Payment
The customer shall pay Smart Host the contractually agreed remuneration, consisting of the remuneration for setting up the service (one-time fee) and the ongoing usage fee. Additional services that the customer commissions from Smart Host will - unless otherwise agreed - be billed according to the Smart Host price list valid at the time the service is provided.
The contractually agreed remuneration, in addition to selected service packages and extras, is based on the number of rooms that the customer has communicated to Smart Host. If during the setup of the service or during the use of the same it is determined that the actual number of rooms (e.g. rooms created in the PMS) differs from the communicated number of rooms, Smart Host is entitled to adjust the price accordingly. The adjustment shall be made in proportion to the number of rooms (e.g. the remuneration shall be doubled if the number of rooms is exceeded by 100%).
The fee for setting up the service is payable upon acceptance of the offer by the customer. The first payment of the ongoing usage fee is due upon the first successful transfer of data from the customer's hotel program to Smart Host, no later than 6 months after signing the contract or(if agreed) after the contractual start date. All subsequent payments of the current usage fee are due at the beginning of the agreed payment period. The amount of all payments of the current usage fee is measured on the basis of the agreed payment period.
All payments are made by means of the selected payment option.
If the SEPA direct debit payment option is selected, Smart Host is obligated to inform the client in advance of the amount and debit date. It is agreed that this advance information obligation shall be reduced to one business day.
Smart Host is entitled to increase the contractually agreed ongoing usage fee once per contract year, in each case on the first day of a new contract year (e.g. if the contract begins on May 1 of a year, on May 1 of each subsequent year) in the same proportion as the harmonized consumer price index (HICP) of the statistical office of the European Union (hereinafter "Index") has changed compared to the status at the beginning of the contract or since the last increase. Smart Host is equally obliged to reduce the contractually agreed ongoing usage fee once per contract year, in each case on the first day of a new contract year, in the same proportion as the Index has changed compared to the level at the start of the contract or since the last increase. Further adjustments shall be made under the same conditions. The starting point in each case is the index level at the time of the last adjustment.
Each party is responsible for compliance with the statutory obligations and requirements for data protection and data security in its business area and bears the liability risk here. The customer assures that it complies with the applicable legal obligations and requirements for data protection and data security and, in particular, that it has lawfully come into possession of the data transmitted to Smart Host.
Part of the Service is the transmission of personal data under the legal responsibility of the Customer to Smart Host as well as the processing of such data by Smart Host for the Customer. In this respect, the Customer commissions Smart Host to process the personal data in question, and Smart Host acts as the Customer's commissioned data processor in the performance of this agreement. Against this background, the parties shall conclude a separate commissioned data processing agreement, which shall take precedence over these GTC and other contractual provisions in the event of contradictions.
In addition to the processing of personal data, the analysis and processing of non-personal data is inherent in the Service, whereby non-personality is also achieved through the anonymization of personal data. The creation and processing of non-personal data is performed by Smart Host for analysis, calibration and benchmarking purposes in order to continuously optimize the Service for all Customers.
Each party shall keep confidential all Confidential Information disclosed to it by the other party and shall not disclose it to third parties or make it available to third parties. "Confidential Information" shall be all information disclosed by one party (hereinafter "Disclosing Party") to the other party (hereinafter "Receiving Party") in the course of the pre-contractual and, if applicable, contractual cooperation or of which the Receiving Party has otherwise become aware and which is either marked as confidential or, in the case of oral transmission, confirmed as confidential in text form within two weeks.
The Parties shall be entitled to disclose Confidential Information to employees and subcontractors to the extent that such employees and subcontractors are subject to confidentiality obligations that are substantially equivalent to the obligations governed by this Agreement.
Not included in Confidential Information under 14. 1 shall include information which the receiving party proves (i) is publicly known, (ii) the disclosing party has waived its protection in writing, (iii) it obtained the information by means other than cooperation with the disclosing party without being subject to a confidentiality obligation, (iv) it developed it independently of the disclosing party's confidential information, (v) it obtained the information by observing, examining, deconstructing or testing a product or item which has been made publicly available. In the event of disclosure pursuant to a governmental or judicial order or legal requirement, the disclosing party shall be notified in text form prior to disclosure, to the extent and as soon as permissible.
Further obligations under data protection law remain unaffected. Smart Host's right to name references in accordance with 7.2 shall also remain unaffected.
This confidentiality obligation shall apply for the term of this agreement and for a further three years. Legal or contractual obligations to delete or return data earlier or to keep data permanently secret remain unaffected.
The warranty is based on the following provisions and otherwise on the statutory warranty provisions with the exception that Smart Host is not liable regardless of fault for damage that already existed when the service was provided (§ 536a para.1 BGB) and the customer's right to remedy defects himself is excluded (§ 536a para.2 BGB).
Smart Host's warranty does not apply to defects that are due to the fact that
the customer or his vicarious agents have not used the service in accordance with the contract or have otherwise used it improperly,
the customer has not performed cooperative actions or has not performed them in a timely manner,
the Customer's system environment or hardware is not suitable for the use of the Service.
In the event of a defect, the customer shall have the right to have the defect remedied twice before being able to assert further rights. Smart Host shall be given a reasonable period of time to remedy the defect in each case. A reasonable period shall be at least four weeks.
The customer is obliged to immediately notify Smart Host in text form of any defects in the service, in a manner that allows Smart Host to reproduce the defect. Smart Host is not responsible for any damage incurred by the customer because he reported a defect late or incompletely.
Smart Host is not responsible for third party software. Smart Host is only responsible for the interoperability between the service and third-party software insofar as the provision of an interface is agreed in writing and a defect concerns the functionalities of this interface.
13. Liability of Smart Host
Smart Host shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions, unless otherwise stipulated in these GTC including the following provisions.
Smart Host shall be liable for damages - irrespective of the legal grounds - within the scope of culpability in the event of intent and gross negligence. In the event of simple negligence, Smart Host shall only be liable - subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty) - in the following cases
for damages resulting from injury to life, body or health,
for damages arising from the breach of a material contractual obligation (i.e. an obligation the fulfillment of which is a prerequisite for the proper performance of the contract and on the observance of which the customer regularly relies and may rely); in this case, however, liability shall be limited to compensation for the foreseeable, typically occurring damage. With regard to this typical contractual damage, Smart Host's liability for property damage and further financial losses resulting therefrom shall be limited to an amount of EUR 30,000.00 per case of damage.
The limitations of liability resulting from this clause 12 shall also apply in the event of breaches of duty by or in favor of persons for whose fault Smart Host is responsible in accordance with the statutory provisions. They do not apply insofar as Smart Host has fraudulently concealed a defect or has assumed a guarantee for the quality of the contractual performance and for claims of the customer under the Product Liability Act.
The customer remains responsible for the regular backup also of the data that it transmits to Smart Host. It is therefore incumbent upon the customer to always keep at least one copy of the relevant data stock and, separately, an up-to-date back-up stored and usable on its own systems. This applies regardless of the fact that Smart Host performs data backups in the course of operating the service. If damages to the customer result from the loss of data, Smart Host shall only be liable for this, even if an event giving rise to liability exists, to the extent that the damages could not have been avoided even if the customer had regularly backed up all relevant data.
14. Changes to the GTCs
Smart Host is entitled to change these GTC at its reasonable discretion (§ 315 BGB), insofar as the changes do not affect the main performance obligations of Smart Host or the customer and are reasonable for the customer. Smart Host will notify the customer of changes in text form. The notice may be made on the invoice. If the customer does not object to the changes in text form within six weeks, the GTC in the new version will become part of the contract. Smart Host will refer to the right of objection in the notification of changes. If the customer objects to the changes in whole or in part, Smart Host has the right to terminate the contract within one month of receipt of the objection with a notice period of three months to the end of the month.
15. Final Clauses
The exclusive place of jurisdiction for all disputes arising from or in connection with the contract and the use of the service is Berlin, Federal Republic of Germany.
These GTC and the contractual relationship between Smart Host and the customer shall be governed exclusively by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, and excluding private international law.
If any provision of these GTC is or becomes void, invalid or unenforceable in whole or in part, or if a provision that is necessary in itself is not included, the validity and enforceability of all remaining provisions of these GTC shall not be affected. In place of the void, invalid or unenforceable provision or to fill the gap in the provision, a legally permissible provision shall be made which corresponds as far as possible to what the parties intended or would have agreed in accordance with the meaning and purpose of these GTC if they had recognized the invalidity or the gap in the provision. It is the express intention of the parties that this severability clause does not result in a mere reversal of the burden of proof, but that § 139 BGB is waived in its entirety.
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