Preamble
apaleo GmbH (hereinafter referred to as "apaleo" or "we") offers an online property management system ("PMS") for hotel operators on a software-as-a-service basis.
These general terms and conditions govern the agreements concluded between apaleo and its clients regarding the use of the PMS.
1. Scope
1.1. These general terms and conditions ("terms") govern the agreements concluded between the respective client and apaleo regarding the use of the PMS, unless expressly agreed otherwise in writing. In addition to these terms, all contracts for the full PMS version (§ 2.3 below) are also subject to an agreement on third-party processing of personal data and the price list valid at the time the contract was concluded, unless the price was otherwise expressly agreed.
1.2. We do not recognize any deviating or conflicting terms and conditions unless we have expressly agreed to them in writing.
1.3. The PMS is provided exclusively to businesses within the meaning of §14 of the German Civil Code (BGB) and contracts will only be made with businesses. The software cannot be used by consumers and consumers may not enter into contracts for its use.
2. Purpose
2.1. The purpose of the contract is the provision of access to the property management system (PMS) operated online by apaleo with the availability defined in §3 below via a user account created for the respective customer and the storage and processing of the data uploaded by the customer to the same in accordance with these terms and conditions.
2.2. apaleo will provide the customer with the current version of the PMS for the purpose of administering one or more hotel operations with the currently available functions, whereby in any case the full version (§ 2.3) contains features for managing room availability, rates and prices, creating and managing reservations, as well as invoicing and subsidiary bookkeeping. The PMS uses an open 2-way API to allow customers to create non-apaleo applications and connect them to the PMS using the interfaces defined by apaleo. Further functionalities can be offered, but they are not guaranteed and may be suspended or removed at any time.
2.3. The PMS is offered in both a paid full version and in a free trial version. The trial version may have a limited range of functions compared to the full version. In the trial version, customers may not enter any personal data in their accounts other than their own.
2.4. To the extent apaleo offers an open 2-way API to allow customers to create non-apaleo applications and connect them to the PMS using the interfaces defined by apaleo, apaleo is solely liable for the proper functionality of said interface as defined. apaleo neither guarantees nor is liable for the functioning of any non-apaleo applications in any specific form; this liability rests solely with the customer's other contractual partners.
3. Availability
3.1. apaleo does not guarantee any certain availability for the trial version.
3.2. The full version of the PMS will be available to customers for an average of 99.5% of the time, determined on a monthly basis and not including scheduled maintenance work of no more than one hour per week. The availability refers to the quality of the PMS offered for customer use at apaleo's interface with the internet. Any degradation to data transmission along the internet on its way to the customer and/or the customer's IT system is not covered by this guarantee.
apaleo will announce any scheduled maintenance work at least seven days in advance.
When calculating the actual availability, apaleo will consider any downtime for which it was not responsible as available times. This includes:
-any maintenance or other services agreed with the customer which go beyond scheduled maintenance work and which do not allow access to the PMS;
-unforeseen maintenance work that becomes necessary if this work was not caused by a breach of apaleo's obligations to provide its services (force majeure, in particular unforeseeable hardware failures, strikes, natural disasters, etc.);
-downtimes due to virus or hacker attacks, insofar as apaleo has taken the agreed or, in the absence of an agreement, the usual protective measures;
downtimes due to the unavailability of the customer's equipment or due to other interruptions caused by the customer (e.g. failure of the customer to cooperate);
-downtimes due to the installation of urgently needed security patches;
-downtimes due to software errors in customer applications or due to errors in the system and system-related software caused by customer applications or data;
-downtimes caused by third parties (persons not associated in any way with apaleo).
4. Contract
4.1. The contract for the trial version may only be concluded online via a website operated by apaleo.
4.2. The contract for the full version can, to the extent offered, be concluded either via a website operated by apaleo or offline via acceptance of an offer by apaleo.
4.3. If the contract is concluded offline, it comes into effect when apaleo receives the signed acceptance of the contract offer from the customer in the original or copy, as a PDF, or some other electronic form. apaleo contract offers that have been changed by the customer in terms of content shall be deemed to be a new offer made by the customer; the contract shall then only come into existence through its explicit acceptance by apaleo; any provision of services beforehand does not constitute implied acceptance.
4.4. Insofar as the contract is concluded online, it can be concluded in German or English via the following technical steps:
-Customers fill out a form provided online by apaleo with the necessary information. Before submitting their consent, they may check the information entered in the form for input errors and correct any errors detected.
-The customer then clicks to submit their information and consent to apaleo as an offer to enter into a contract.
-apaleo will confirm receipt of the customer's offer by sending an email to the address provided. This confirmation does not constitute an acceptance of the customer's offer unless expressly stated otherwise in this email or the customer is expressly informed that they can activate their account.
-apaleo will send an express declaration of acceptance of the customer's offer to enter into a contract if this has not already been done, as explained above, with the confirmation of receipt.
Once the contract has been accepted, apaleo will store the customer's information for any contracts concluded online. The customer may request the details of their contract from apaleo at any time, but this is not otherwise directly accessible to the customer once the contract offer has been accepted. We therefore recommend keeping a copy of the data entered.
5. apaleo's obligations
5.1. Upon conclusion of the contract, apaleo shall set up an account for the customer which is accessible via the internet and which will allow the customer to use the PMS for the purposes agreed. apaleo shall grant the customer and each user created by the customer access to the account with limited rights for individual users as requested. Authorized access consists of a user identification created by the customer and a password.
5.2. An obligation to provide a full version only exists if the customer has also entered into a contract for the third-party processing of personal data.
5.3. apaleo will provide the customer with the documentation via the internet.
5.4. apaleo provides support depending on the support package ordered by the customer as part of their original contract or subsequently according to the currently applicable price list or as explicitly defined in the contract in the form of:
-either pure community support via a web forum without guaranteed availability and response time, or
-24/7 email support with usually one-hour response time or
-24/7 telephone support.
6. Customer obligations
6.1. The customer is obliged to pay the fees due under the contract and the support package ordered in accordance with the "Fees" section below.
6.2. When using the trial version, the customer agrees not to use or record any personal data other than their own in the PMS, but instead only to work with fictitious data.
6.3. The customer is obligated to use the PMS exclusively for the purposes specified in § 2.2 and not to store therein any unlawful content, such as viruses or malicious code, which violates the laws, official requirements, or rights of third parties.
6.4. The user password and password may only be communicated by the customer to authorized users and must otherwise be kept secret.
6.5. The contractual use of apaleo's services depends on the fact that the hardware and software used by the customer, including workstations, routers, data communication media, etc., comply with the minimum technical requirements for the use of the current version of the PMS and that the users authorized by the customer to use the application software are familiar with the operation of the same.
7. Licenses
7.1. apaleo grants the customer the simple, non-exclusive, and non-transferable license to use the PMS for the duration of the contract for the purposes and within the scope agreed therein.
7.2. Unless otherwise expressly agreed, the customer shall not make the PMS or its use available to third parties (anyone who is not employed by the customer) for free or for pay. The customer is expressly not permitted to sublet or lend or make the PMS accessible to third parties or to make copies of the software.
7.3. Insofar as the customer stores copyright-protected content in their allocated the storage space on the PMS, they grant apaleo the right to make the content stored there accessible to the same when queried and, in particular, to reproduce and transmit it for this purpose. The customer also grants apaleo the right to reproduce the data for backup purposes and further warrants that they have the authority to grant these rights.
8. Data protection
When using the trial version, the customer agrees not to use or record any personal data other than their own in the PMS.
In order to use the full version as contractually agreed, the parties must also enter into a contract for the third-party processing of personal data. The customer is solely responsible for compliance with data protection regulations within the scope of the personal data processed by the PMS.
9. Fees for the full version
9.1. The customer agrees to pay apaleo the agreed fee plus the statutory VAT without any deductions. Unless otherwise agreed, payment shall be based on apaleo's price list valid at the time the contract is concluded, depending on the term of the contract selected by the customer.
9.2. At the end of the respective term per § 10.1, apaleo may adjust the agreed fees with one month's notice for monthly contract terms and three months' notice for annual and semi-annual terms. If the customer does not agree with the new pricing, they may object to the same by giving two weeks' notice before the intended price adjustment becomes effective. This objection must be in text form. In the event of an objection, apaleo shall be entitled within four weeks of receipt of the objection to terminate the contract in accordance with the terms and conditions set forth in § 10.1, where, for semi-annual and annual terms, the notice need not be effective at the end of the term, but instead may take effect at the end of any month during the term. If the customer does not object, the changed prices shall be deemed to have been accepted. apaleo shall specifically inform the customer of the consequences of their available options when providing notice of the price change.
9.3. The fees are due for the respective term in advance on the day the contract commences and at the beginning of each renewal date.
9.4. The customer shall raise any objections to the billing of the services provided by apaleo in writing within four weeks after receipt of the invoice by providing written notice as indicated on the invoice. After the expiry of the aforementioned period, the invoice shall be deemed to have been approved by the customer. apaleo shall inform the customer of the consequences of its actions.
9.5. The customer shall only be entitled to offsets and to assert a right of retention if the counterclaim asserted by the customer is undisputed or has been legally established.
10. Duration, termination
10.1. For the full version, the customer can choose between a monthly, semi-annual, or annual term. The contract shall be automatically renewed at the end of each term for the same term unless terminated with one week's notice in the case of a monthly term, one month's notice in the case of a semi-annual term, or three months' notice in the case of an annual term, all effective at the end of the current term.
10.2. The right to extraordinary termination remains unaffected.
10.3. The contract for the trial version is for an indefinite period of time and may be terminated by either party at any time without notice.
10.4. The duration of the support package corresponds to the duration of the full version.
11. Confidentiality
11.1. The contracting parties shall treat all business and trade secrets of the other party ("confidential information"), in particular all documents in electronic or other form, the code of the software application, its documentation, customer information, hotel data, procedures and methods of apaleo in the provision of the services, as well as any other expertise of apaleo, confidentially and only use them for the purposes of the contract. A party's confidential information does not include information which (i) is or becomes generally known without the other party being responsible for such disclosure; (ii) was already known to the other party before it was made available to it and which the other party had received neither directly nor indirectly from the protected party; (iii) was lawfully disclosed to the other party by a third party without restrictions on disclosure; (iv) was developed by the other party itself without using or referring to the confidential information of the protected party.
11.2. This information may only be disclosed to third parties if the protected party has expressly given its prior written consent and if this is absolutely necessary for the execution of the contract. This obligation to maintain secrecy does not apply to persons (auditors, tax consultants, lawyers) of the respective party who are bound by law to maintain professional secrecy, nor does it apply to authorities who have a right to information, nor does it apply to the extent that publication has been ordered by a competent court. In the event of a request for information from an authority or a court, the parties shall cooperate in order to keep the disclosure of confidential information to the minimum necessary. Third parties do not include not agents, freelancers, and subcontractors of apaleo.
11.3. Upon termination of the contract on whatever grounds, both parties shall immediately destroy or return all confidential information of the other party at their option, unless mandatory storage obligations require otherwise.
11.4. The rights and obligations arising from §§11.1 to 11.3 shall remain unaffected by the termination of the contract.
12. Liability
12.1. Within the framework of the contract for a trial version, apaleo shall be liable in accordance with this paragraph. In the event of damage due to legal defects or flaws in the PMS, apaleo shall only be obliged to compensate the customer for the damage resulting from any defects or flaws it has fraudulently concealed. In the event of a breach of protective duties that are not connected with the provision of the PMS, apaleo shall be liable without limitation for damages resulting from injury to life, body or health resulting from a negligent breach of duty by apaleo or an intentional or negligent breach of duty by a legal representative or vicarious agent of apaleo. Otherwise, apaleo is only responsible for damage caused with intent or out of gross negligence.
12.2. Within the framework of the contract for a full version, apaleo shall be liable in accordance with this paragraph. If the services provided by apaleo are defective because their suitability for the contractual use is not only insignificantly impaired, apaleo shall be liable for material defects and defects of title in accordance with the statutory provisions. apaleo shall be liable for defects in the software which were already present when the software was handed over to the customer only if apaleo is responsible for the same.
Otherwise, apaleo is liable:
-for damage resulting from its intent or out of its gross negligence or that of its legal representatives or vicarious agents according to the statutory provisions
-for unlimited damages resulting from injury to life, limb or health
-in the event of slight negligence by apaleo or a legal representative or vicarious agent of apaleo, only in the event of breach of a material contractual obligation (cardinal obligation) and only for foreseeable damage, the occurrence of which must typically be expected. Essential contractual obligations are such obligations that are absolutely necessary for the proper execution of the contract and in whose compliance the customer may regularly confide in.
12.3. apaleo shall be liable for product liability damages in accordance with the provisions of the German Product Liability Act. The liability is not limited in this respect by the above two paragraphs.
13. Miscellaneous
13.1. Unless otherwise specifically agreed, apaleo shall be entitled to amend or add to these terms in accordance with this paragraph. apaleo shall notify the customer of such amendments or addenda in writing at least six weeks before they take effect. If the customer does not agree with the amendments or addenda to the contractual conditions, they can object to the changes within a period of one week from the date on which they take effect. This objection must be in text form. If the customer does not object, the amendments or addenda shall be deemed to have been accepted. apaleo shall specifically inform the customer of the consequences of their available options when providing notice of the proposed amendments or addenda. Amendments or addenda to this contract must be in writing to be valid.
13.2. German law is solely applicable to this contract to the exclusion of the Agreement of the United Nations on Contracts for the International Sale of Goods dated April 11, 1980 (UN Convention on Contracts for the International Sale of Goods).
13.3. The place of performance and the exclusive place of jurisdiction are the registered offices of apaleo.
13.4. If any provision of this agreement is or shall become invalid, the validity of the remaining provisions shall not be affected.