T&C

1.1

These General Terms and Conditions (hereinafter “GTC”) apply to all business relationships between Smart Host GmbH, Am Kupfergraben 6a, 10117 Berlin (hereinafter “Smart Host”) and its customers (Customer and Smart Host each hereinafter also a “Party” and together the “Parties”). The GTC apply only if the Customer is a business (Unternehmer, § 14 BGB), a legal entity under public law, or a special fund under public law.

1.2

These GTC apply in particular to agreements for the time-limited provision of standard software by Smart Host to the Customer.

1.3

These GTC apply exclusively. Any 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 agreed to their applicability in writing or in text form (e.g. letter or email). This requirement for consent applies in any case, including where Smart Host, being aware of the Customer's general terms and conditions, renders the contractual services to the Customer without reservation.

1.4

Individual agreements made with the Customer in a specific case (including side agreements, supplements, and amendments) take precedence over these GTC. Subject to proof to the contrary, a contract or Smart Host's confirmation in writing or text form shall be authoritative as to the content of such agreements.

1.5

References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTC.

3.1

Smart Host offers a software solution for the optimized use of the Customer's existing customer and other data (hereinafter “Service”). The subject matter of the contract is the provision of the Service for use of the functionalities set out in the description of services. Smart Host makes the Service available to the Customer for use as Software-as-a-Service over the internet. The Customer uses the Service via its customer account. Smart Host initially sets up the Service for the Customer as part of an onboarding process. Unless otherwise agreed, this is done by remote maintenance. The specific subject matter of the contract results in detail from the description of services in Smart Host's Order Form.

3.2

Smart Host provides each Customer with computing and storage capacity for the contractual use of the Service pursuant to Section 3.1. Smart Host determines the computing and storage capacity provided at its reasonable discretion (§ 315 BGB). This is based on regular usage analyses of all customers, from which Smart Host determines the capacity typically required. If a Customer exceeds the typically required capacity by more than three times in a calendar month, Smart Host may offer the Customer a chargeable capacity upgrade in accordance with the then-current price list. If this upgrade is not booked within ten (10) business days of notification, Smart Host is entitled to reduce the provided computing and storage capacity to the typically required capacity. If the Customer has purchased the “Data Safe” product, the typically required capacity doubles.

3.3

During the term of the contract, the Service also includes all updates and other version changes within the contractual product in accordance with Section 4.4. The Service does not include the procurement or provision of third-party software, including licenses for operating systems or standard software from third-party manufacturers, or the further development of such third-party software, including patches, updates, and upgrades.

4.1

The Service is available to the Customer on average 99% of the time per calendar year (hereinafter “Availability Time”), provided the Service is used as contractually agreed. The Availability Time does not include outages caused by:

4.3

Smart Host is entitled to carry out regular maintenance work but will endeavor to keep interruptions to a minimum. Smart Host will inform the Customer no later than three (3) calendar days before the start of such work. In urgent cases, for example to remedy security vulnerabilities, Smart Host may shorten the notice period or, if no other option is available, begin maintenance work without prior notice. If prior notice is not possible, the Customer must be informed promptly after the work has begun.

4.4

Smart Host is entitled, but not obligated, to carry out updates to the Service as part of maintenance work. Smart Host is entitled to adapt and modify the scope of the Service's functionality to reflect technical progress, provided the agreed functionalities are not materially impaired. Smart Host is not required to consider possible backward compatibility with third-party software that does not reflect the then-current state of the art, and/or possible interoperability with third-party software. This shall only be otherwise if such interoperability has been expressly agreed as a characteristic. Warranty claims remain unaffected. Improvements, innovations, and extensions or substantively new functions of the Service (“Upgrades”) are not covered by the contractually owed maintenance services. Upgrades are provided against separate remuneration on the basis of a separate agreement. However, Smart Host is free to make such Upgrades available free of charge.

4.5

The Customer shall report faults not caused by maintenance work without undue delay via the communication channels specified in Section 3.5 and ensure that it provides the following information:

4.7

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).

4.8

If a reasonable workaround is available or is provided by Smart Host, the fault shall be deemed a Priority Level 4 fault.

4.9

Smart Host will begin remedying the fault within the applicable response times. Times outside Service Hours do not count towards response times.

4.10

Smart Host is not obligated to remedy the fault within the response times, but must make reasonable efforts to remedy it within a reasonable time and will inform the Customer accordingly within a reasonable period.

4.11

There are no maintenance obligations with respect to third-party software.

4.12

The Customer is invited to provide feedback on the Services and on the support and maintenance services. Smart Host will take this feedback into account to continuously improve the quality of its services. The Customer grants Smart Host the free of charge right, unlimited in time, place, and content, to use the feedback to improve the Services or other Smart Host offerings.

6.1

Smart Host grants the Customer a revocable, worldwide, non-exclusive, non-transferable right, limited to the term of the contract, to use the Service for its own purposes, i.e. through its own employees, to manage its own data. The right of use is limited to using the Service on a cloud basis on the hardware designated by Smart Host for this purpose.

6.2

The Customer must comply with the agreed scope of license. If the Customer exceeds this scope, Smart Host is entitled to demand additional reasonable remuneration.

6.3

The Customer acknowledges that the exclusive rights to the Service and all technologies contained therein and documentation provided belong to Smart Host. No provision of this contract shall be construed as transferring any rights to the Service or parts thereof to the Customer. All rights to the Service not expressly granted to the Customer under this contract remain reserved to Smart Host.

6.4

The creation of individual adaptations or configurations of the Services (“Customizations”) must be contractually agreed. Without such contractual agreement, there is no entitlement to the creation of Customizations. Smart Host reserves all rights to Customizations, in particular the right to license Customizations to other customers. To the extent Smart Host creates Customizations for the Customer, the rights of use granted under this contract in respect of the Services shall also apply to the Customer for such Customizations.

6.5

The Customer may not use the Service for purposes other than those specified in the contract and must protect the Service from unauthorized access by third parties. Without limiting the generality of the foregoing, the Customer is in particular not permitted to: (i) use the Service or parts of it for purposes other than processing its own data and the purposes defined in the description of services; (ii) distribute, sell, resell, lease, rent, lend, or otherwise transfer, sublicense, or assign rights to the Service or parts of it to third parties without Smart Host's prior written consent; (iii) disclose or make available the Service or parts of it to third parties, or permit its use by persons other than its own employees; (iv) modify, supplement, alter, or adapt the Service; (v) reverse engineer, decompile, translate, disassemble the Service or parts of it, or decompose data formats that are part of the Service, and/or otherwise attempt to obtain the source code or parts thereof (except to the extent permitted under Section 6.6), and furthermore not otherwise attempt to extract the source code of the Service; (vi) make copies of the Service or parts of it; (vii) use the Service for the development of 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 for others; or (x) remove, alter, or obscure ownership or copyright notices, trademarks, or other identifiers of Smart Host or third-party rights holders. Furthermore, the Customer is not permitted to: (xi) store or distribute via the Service content that violates applicable laws, in particular professional regulations, official orders, or third-party rights (e.g. copyrights, industrial property rights, personal rights), or that is offensive, racist, defamatory, or libelous in content; (xii) store or transmit via the Service content (files) containing spam, harmful code, viruses, or other malware, or other information, files, or programs that could disrupt, destroy, and/or restrict the functionality of software, hardware, or telecommunications devices; (xiii) use the Service as a reseller; (xiv) deploy the Service in application areas classified under Regulation (EU) 2024/1689 on artificial intelligence (the “AI Act”) as (a) prohibited AI systems under Art. 5, or (b) high-risk AI systems under Art. 6 et seq., in particular for the social scoring of natural persons, manipulative influencing of persons, remote biometric identification, or in safety- or health-critical areas; or (xv) alter, remove, or add protective notices, in particular copyright notices and other reservations of rights, in connection with the Service.

6.6

The Customer's statutory rights under §§ 69d(2) and (3) and 69e of the German Copyright Act (Urhebergesetz) remain unaffected, provided that (i) decompilation under § 69e of the Copyright Act may only take place following a prior written request to Smart Host, in which the Customer requests the necessary information, and Smart Host fails to provide the necessary information within two weeks, and (ii) the Parties enter into an appropriate confidentiality agreement ensuring the protection of the Service and its source code from third-party access.

7.1

Smart Host enables the Customer to process its own data (hereinafter “Customer Content”) as part of using the Service. The Customer grants Smart Host a worldwide, non-exclusive right, limited to the term of the contract, to use the Customer Content within the scope of the Service in order to render the contractual services. This includes in particular the right to reproduce the Customer Content and to make it publicly accessible within the Service to the users designated 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 hosting providers. For reference purposes, the Customer grants Smart Host further-reaching rights in accordance with Section 7.2.

7.2

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 and in particular to use its company name, trademark(s), or business identifiers for this purpose. To the extent Customer Content includes image material, Smart Host is entitled to use this material as well in connection with a reference mention in advertising. For this purpose only, 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 communicate the relevant Customer Content. This also applies to the use of screenshots of parts of the Service customized for the Customer as an example of its scope of performance and functionality.

7.3

The Customer is responsible, in accordance with the following provisions, for the Customer Content processed by it and its vicarious agents within the scope of the Service (regardless of whether their use of the Service is permitted or not):

8.1

The contract is initially concluded for the period specified in Smart Host's offer (hereinafter “Minimum Contract Term”). The Minimum Contract Term begins on the first day of the second calendar month following signature of the contract. The contract is automatically extended by a further twelve (12) contract months each time (hereinafter “Renewal Period”) unless terminated by either Party with three (3) contract months' notice prior to the expiry of the Minimum Contract Term or the then-current Renewal Period.

8.2

Either Party may terminate the contract for cause without notice (termination for cause). An important reason justifying termination for cause by Smart Host exists in particular if:

8.2.4

Notices of termination must be in writing to be effective, and receipt must be confirmed by the other Party.

9.1

The Customer shall pay Smart Host the contractually agreed remuneration, consisting of the remuneration for setting up the Service (one-time fee) and the recurring usage fee. Additional services commissioned by the Customer from Smart Host will, unless otherwise agreed, be invoiced according to Smart Host's price list valid at the time the service is rendered.

9.2

The contractually agreed remuneration is based, in addition to the selected service packages and extras, on the number of rooms communicated by the Customer to Smart Host. If it is determined during setup or use of the Service that the actual number of rooms (e.g. rooms set up in the PMS) deviates from the number of rooms communicated, Smart Host is entitled to adjust the price accordingly. The adjustment is made proportionally to the number of rooms (e.g. the remuneration doubles if the number of rooms is exceeded by 100%).

9.3

The remuneration for setting up the Service is due on the day the contract is signed. The recurring usage fee is to be paid by the Customer in advance at the start of the agreed payment period; the first payment of the recurring usage fee is due at the start of the Minimum Contract Term. All subsequent payments of the recurring usage fee are due at the start of each further agreed payment period. The amount of each payment of the recurring usage fee is determined by the agreed payment period. If the Customer defaults on due payments, Smart Host is entitled, after prior warning in text form, to block the Service in whole or in part until all outstanding amounts have been paid in full.

9.4

All payments are made using the selected payment option.

9.5

If the SEPA direct debit payment option is selected, Smart Host is obligated to inform the Customer of the amount and debit date in advance. It is agreed that this advance notification period is shortened to one business day.Sollte die Zahlungsoption SEPA-Lastschriftverfahren gewählt werden, ist Smart Host verpflichtet, dem Auftraggeber Betrag und Belastungsdatum im Vorfeld mitzuteilen. Es wird vereinbart, dass diese Vorabinformationspflicht auf einen Werktag verkürzt wird.
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9.6

If a due payment is unsuccessful for any reason (e.g. returned direct debit, insufficient funds, or incorrect payment details), Smart Host shall charge a processing fee of EUR 25.00 per failed debit. The assertion of further claims, in particular default interest, reminder costs, and other statutory or contractual rights, remains unaffected.

9.7

Smart Host is entitled to increase the contractually agreed recurring usage fee once per contract year, each time on the first day of a new contract year (e.g. if the contract begins on 1 May of a given year, on 1 May of each following year), in the same proportion as the Harmonised Index of Consumer Prices (HICP) of the Statistical Office of the European Union (hereinafter “Index”) has changed compared to its level at the start of the contract or since the last increase. Smart Host is equally obligated to reduce the contractually agreed recurring usage fee once per contract year, each time on the first day of a new contract year, in the same proportion as the Index has changed compared to its level at the start of the contract or since the last increase. Further adjustments are made on the same basis. The starting point in each case is the Index level at the time of the last adjustment.

10.1

Smart Host uses systems with artificial intelligence (“AI Systems”) in the course of providing its services.

10.2

To the extent results are generated by AI Systems in the course of using the Services, Smart Host is not responsible for the accuracy, freedom from third-party rights, or data protection compliance of such results.

10.3

The Services do not replace expert personal communication. They serve solely to support simple, standardized processes. Smart Host assumes no responsibility for damages arising from the Customer making decisions based solely on the conversation content transmitted by the contractual software.

10.4

To the extent deliveries or services by Smart Host include AI Systems subject to the EU AI Act or other AI regulation, Smart Host will offer necessary support services for implementing the statutory requirements (e.g. documentation obligations, risk assessments) against separate remuneration.

11.1

Each Party is responsible, within its own area of business, for compliance with statutory data protection and data security obligations and bears the liability risk for this. The Customer warrants that it complies with applicable statutory data protection and data security obligations and, in particular, that it has lawfully come into possession of the data transmitted to Smart Host.

11.2

Part of the Service is the transmission of personal data, for which the Customer is legally responsible, to Smart Host, and the processing of this data by Smart Host on behalf of the Customer. The Customer accordingly engages Smart Host to process the relevant personal data, and Smart Host acts as the Customer's data processor in performing this contract. Smart Host provides the Customer with the applicable data processing agreement at this link [here]; this data processing agreement becomes part of the contract by reference and takes precedence over these GTC and other contractual provisions in the event of conflict.

11.3

In addition to the processing of personal data, the Service also inherently involves the analysis and processing of non-personal data, whereby non-personal status is also achieved through the anonymization of personal data. Smart Host creates and processes non-personal data for analysis, calibration, and benchmarking purposes in order to continuously optimize the Service for all customers.

12.1

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 accessible to third parties. “Confidential Information” means all information that a Party (hereinafter “Disclosing Party”) discloses to the other Party (hereinafter “Receiving Party”) in the course of pre-contractual and contractual cooperation, or of which the Receiving Party otherwise becomes aware, and which is either marked as confidential or, in the case of oral disclosure, confirmed as confidential in text form within two weeks.

12.2

The Parties are entitled to disclose confidential information to employees and subcontractors, provided they are subject to confidentiality obligations substantially equivalent to those set out in this contract.

13.1

Warranty is governed by the following provisions and otherwise by the statutory warranty rules, except that Smart Host is not liable on a no-fault basis for damages that already existed at the time the Service was provided (§ 536a(1) BGB), and the Customer's right to remedy defects itself is excluded (§ 536a(2) BGB).

13.2

Smart Host's warranty does not apply to defects resulting from:

13.3

In the event of a defect, the Customer has the right to two attempts at remedy before asserting further-reaching rights. Smart Host must be given a reasonable period to remedy the defect in each case. A reasonable period is at least four (4) weeks.

14.1

Smart Host is liable for breaches of contractual and non-contractual obligations in accordance with statutory provisions, unless otherwise provided in these GTC, including the following provisions.

14.2

Smart Host is liable for damages — regardless of the legal basis — on a fault basis in cases of intent and gross negligence. In cases of ordinary negligence, Smart Host is liable — subject to statutory limitations of liability (e.g. care in one's own affairs; immaterial breach of duty) — only 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 at all, and on whose observance the Customer regularly relies and may rely); in this case, liability is limited to the foreseeable damage typical for this type of contract at the time the contract was concluded, and in any case capped at the amount of the remuneration payable for the relevant contract year.

14.3

Regardless of fault on the part of Smart Host, any liability for fraudulent concealment of a defect, for the assumption of a guarantee as to the quality of the contractual performance or of a procurement risk, and liability under the Product Liability Act, remain unaffected; the same applies to liability for damages resulting from injury to life, body, or health.

16.1

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.

16.2

These GTC and the contractual relationship between Smart Host and the Customer are governed exclusively by the law of the Federal Republic of Germany, excluding uniform international law, in particular the UN Convention on Contracts for the International Sale of Goods, and excluding private international law.

16.3

Should any provision of these GTC be or become wholly or partly void, invalid, or unenforceable, or should these GTC contain a gap that requires filling, the validity and enforceability of all remaining provisions of these GTC shall remain unaffected. In place of the void, invalid, or unenforceable provision, or to fill the gap, a legally permissible provision shall apply that comes as close as possible to what the Parties intended, or would have agreed based on the sense and purpose of these GTC had they been aware of the invalidity or the gap. It is the express intention of the Parties that this severability clause shall not merely result in a reversal of the burden of proof, but that § 139 BGB is excluded in its entirety.