-Valid from 24/01/2024-
Preamble
Apaleo GmbH (hereinafter referred to as "Apaleo" or "we") offers an online property management system ("Platform") 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 Platform.
1.1. These general terms and conditions ("Terms") govern the agreements concluded between the respective client and Apaleo regarding the use of the Platform, unless expressly agreed otherwise in writing. In addition to these terms, all contracts for the full Platform version 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 Platform 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.
2.1. The purpose of the contract is the provision of access to the Platform 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 Platform for the purpose of administering one or more hotel operations with the currently available functions, whereby in any case the full version contains features for managing room availability, rates and prices, creating and managing reservations, as well as invoicing and subsidiary bookkeeping. The Platform uses an open 2-way API to allow customers to create non-Apaleo applications and connect them to the Platform 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 Platform 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 Platform 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.
3.1. Apaleo does not guarantee any certain availability for the trial version.
3.2. The full version of the Platform 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 Platform 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.
3.3. Apaleo will announce any scheduled maintenance work at least seven days in advance.
3.4. 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 Platform; -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).
3.5. Without limiting other rights or remedies, Apaleo may temporarily suspend (without liability) the customer's access to any portion of the Platform, if (a) Apaleo reasonably determines that (i) there is a threat or attack on the Platform or other event that may create a risk to the Platform, the customer or any other third party; (ii) the customer's use of the Platform disrupts or poses a security risk to the Software or any other third party; or (b) Apaleo has notified the customer that any amount owed by the customer under the Agreement is thirty (30) or more days overdue, and the customer has failed to submit payment in full within five (5) days of receipt of such notice (collectively, “Suspensions”). Apaleo shall provide notice in advance (where reasonably possible) of any Suspension and provide updates regarding resumption of Software or Services following any Suspension.
4.1. The contract for the trial version may only be concluded online via a website operated by Apaleo.
4.2. The use of the Platform requires creating an account (“Account”). By creation of an Account, the customer accepts a free of charge contract for the use of the Platform for trial purposes. Upon Account activation, Apaleo grants the customer a free right to use the Platform ("Trial"). The customer is only entitled to one Trial. Apaleo may extend or terminate the Trial at its sole discretion. Apaleo is entitled to limit the trial period of an account in order to perform clean ups due to sparing resources. After the expiration of the Trial, the customer’s Account will be blocked.
4.3. After expiration of the Trial according to section 4.2 the customer may conclude a fee-based contract with Apaleo for the Platform.
4.4. 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.
4.5. 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.
4.6. 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.
4.7. 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.
5.1. Upon conclusion of the contract, Apaleo shall switch the account into live status for the customer which is accessible via the internet and which will allow the customer to use the Platform 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 to 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 -Access to a ticketing support software.
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 Platform, but instead only to work with fictitious data.
6.3. uring the Trial in accordance with section 4.2, the customer is obliged to review the functionalities of the Platform and to notify Apaleo in text form about possible defects and other deviations from the Platform Description before concluding a fee-based contract for the use of the Platform. The customer cannot invoke defects and other deviations for the services, which were already known or present during the Trial, but were not reported before the conclusion of a fee-based contract for the use of the Platform.
6.4. The customer is obliged to use the Platform 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.
6.5. The customer agrees that no acceptance testing nor load tests nor systematic testing of the implementation of the Platform would be performed during and after the Trial, unless mutually accepted in written by the parties.
6.6. The customer is solely responsible for the content and data processed within the Platform. The customer shall use the Platform only in accordance with the contract and within the framework of the applicable statutory provisions and not to infringe any rights of third parties during use. The customer will inform Apaleo without undue delay in text form about: (i) the misuse or suspicion of misuse of the Platform; (ii) a risk or suspicion of a risk for the compliance of data protection or data security which occurs within the scope of the provision of the Platform; (iii) a risk or suspicion of a risk for the service provided by 4paleo, e.g. due to loss of access data or hacker attack.
6.7. The customer confirms that it is informed of its obligation to keep the relevant tax records on a secure external medium for the legal retention period, if required by national law. 6.8. The customer is obliged to inform Apaleo in case of change of control and ownership.
6.9. After the end of the paid subscription period, the customer is obliged to archive the account after informing Apaleo. If such archive is not completed, Apaleo is entitled to archive the account of the customer.
6.10. The username and password may only be communicated by the customer to authorized users and must otherwise be kept secret.
6.11. 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 Platform and that the users authorized by the customer to use the application software are familiar with the operation of the same.
7.1. Apaleo grants the customer the simple, non-exclusive, and non-transferable license to use the Platform 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 Platform 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 Platform accessible to third parties or to make copies of the software.
7.3. Insofar as the customer stores copyright-protected content in their allocated storage space on the Platform, 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.
8.1. When using the trial version, the customer agrees not to use or record any personal data other than their own in the platform.
8.2. 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 Platform.
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 in accordance with the concluded contract.
9.2. At the end of the respective term per § 10.1, Apaleo may adjust the agreed fees with three months’ notice for the 12 months 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 the notice not needing to 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 in accordance with the contract.
9.4. The customer shall raise any objections to the billing of the services provided by Apaleo in writing within the period of the payment terms by providing written notice as indicated on the invoice. The written objection does not reset the payment terms. 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. Customer will be responsible for reasonable costs and expenses incurred by Apaleo in the collection of any overdue Fees. If any Fees are 15 days or more overdue, Apaleo may, without limiting its other rights and remedies, immediately suspend services until such amounts are paid in full, provided that Apaleo will use commercially reasonable efforts to give Customer at least 5 days’ prior written notice that its account is overdue before suspending Services.
9.6. 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.
10.1. For the full version, the customer agrees to a contract with an initial term of at least 12 months. The term of this contract is triggered by the initial start of the subscription period of the first property (“Contract Term”) and applies to all further properties of this account. The contract will be automatically extended by an additional 12 months.
10.2. The property of the customer go-live has to happen within 3 months of contract signature unless agreed otherwise.
10.3. This contract can be cancelled in writing by giving at least three months’ notice period prior to the end of the current term. If the Customer cancels a property or properties, or the account, the Subscription fees are due until the end of the Contract Term, no reimbursements of fees.
10.4. Notice of termination must be given in written form (electronic form). All licenses and rights granted under the Agreement shall be immediately terminated after the end of the subscription.
10.5. The right of both parties to extraordinary termination for good cause remains unaffected.
10.6. 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.
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 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.
12.1. 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 Platform, 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 Platform, 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.
12.4. Apaleo at its utmost effort maintains the Platform fiscal and legal compliance for the countries listed in the product (“List of Compliant Countries”). The List of Compliant Countries is continuously maintained, and the date of latest change is always duly marked. The scope of features included for the fiscal and legal compliance could be communicated with the customers when signing the contract or on demand, after the signing of the contract with Apaleo.
12.5. Customer agrees that they may be held liable for the use of the Platform in countries or territories which are not included in the list of compliant countries. Customer acknowledges that Apaleo is not liable for any legal or tax violations that may result from the use of the Platform in these countries or territories.
12.6. Apaleo is not able to provide any compliance guarantees on the functionalities on custom apps, store apps, extensions, automations, etc. build on Apaleo API, and how the customers are using them while using the Platform.
12.7. In case of noncompliance or compliance deviation related to articles 12.5 and 12.6 the customer agrees to inform Apaleo immediately and provide the information for all counter measures conducted in order to avoid such noncompliance.
12.8. The customer is obliged to monitor its compliance-related actions and act manually in order to avoid potential damage or compensation that can arise from their noncompliance on their side.
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. The customer’s consent to the change of these terms will be deemed granted if the customer does not object to the amendment in text form within a period of two weeks, beginning with the day following the day of the announcement of the amendment. Any announcement shall indicate the relevant amendment, the possibility of objection, the deadline for an objection, the text form requirement and the outcome of an objection. Amendments or addendum to these terms must be in writing to be valid.
13.2. The agreement between the parties shall be governed by and construed in accordance with the laws of the Federal Republic of Germany excluding the UN Convention 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 signing party of the Customer certifies that it is authorized to sign and enter this binding legal contract for the Customer making this purchase.
13.4. The place of performance and the exclusive place of jurisdiction is Munich, Federal Republic of Germany.
13.5. If any provision of this agreement is or shall become invalid, the validity of the remaining provisions shall not be affected.