§ 1 Scope of application and subject matter of the contract
The subject matter of these provisions is the granting of a right to use the “ibelsa.rooms” software application (hereinafter “the APPLICATION”) and the provision of storage space for the data generated in conjunction with such use and use of the software.
The APPLICATION offers a booking system for tourist accommodation businesses that completely process their bookings and the resulting other internal processes via the APPLICATION.
All services by ibelsa GmbH will be rendered according to the terms and conditions set out below. These terms and conditions have been acknowledged by the Client and shall apply to all current and future business relations with the Client existing in conjunction with the temporary use of the software program unless subject to any other individual written agreements between the Client and ibelsa GmbH.
§ 2 Conclusion of contract
(1) The Client’s Provider and contractual partner is ibelsa GmbH, Sybelstraße 41, 10629 Berlin.
(2) The contract shall be concluded by the Client completing the registration form online, clicking the “Register now!” button and the Provider subsequently activating the Client’s account.
(3) In the first thirty (30) days, the Client shall be able to use the APPLICATION free of charge. If the Client enters its payment details in the APPLICATION within these first thirty (30) days, the Provider shall activate the APPLICATION’s full range of services.
(4) If the Client does not enter its payment details within these 30 days, the so-called “Freeplan” shall apply.
Afterwards, the functions of the APPLICATION shall be available to the Client to a limited extent. The Client shall continue to have access to the APPLICATION, albeit without being able to perform any more bookings. These limitations shall be removed as soon as the Client enters its payment details according to this §2 (3 above) of the General Terms and Conditions.
§ 3 Provision of the APPLICATION and storage space for APPLICATION DATA
(1) Beginning on the date of the conclusion of the contract, the Provider shall make available for use on a central data processing system or several data processing systems (hereinafter “the SERVER“) the APPLICATION referred to in §1 above in the version current at the time of the conclusion of the contract subject to the following provisions.
(2) Insofar as the APPLICATION provides interfaces with any third-party systems, only the provision of the interface shall be a contractual element.
The Client shall exclusively be responsible for checking any data received or sent via the interface in terms of being consistent, complete, correct and up-to-date. Insofar as these responsibilities are concerned, ibelsa GmbH assumes no verification duties and no liability.
(3) Beginning on the date of the conclusion of the contract, the Provider shall make available on the SERVER the necessary storage space for the data generated by the Client as a result of using the APPLICATION and/or for the data required for using the APPLICATION (hereinafter “the APPLICATION DATA”).
(4) Backups of the APPLICATION and the APPLICATION DATA shall be performed on the SERVER at regular intervals. For the duration of the existing contractual relationship, the Provider shall perform data management for the Client. The Client shall be responsible for compliance with retention periods required by trade and tax laws, including but not limited to the archiving of data.
(5) The transfer point for the APPLICATION and the APPLICATION DATA shall be the router exit of the Provider’s datacentre.
(6) The Provider shall not be responsible for the quality of the required hardware and software on the Client’s side nor for the telecommunications connection between the Client and the Provider up to the transfer point.
(7) The Provider shall provide the APPLICATION to the Client at an average availability of 95% during normal business hours between 8 am and 10 pm. Maintenance and updates – to the extent possible – shall be performed outside of these hours and shall not be included in the availability calculation.
- 4 Rights of use
(1) Rights to use the APPLICATION
(a) The Client shall receive simple rights to use the APPLICATION, which are neither sub-licensable nor transferrable, for the term of this contract, subject to the following provisions.
(b) The APPLICATION is not sold to the client. The Client may use the APPLICATION only for its own business activities by its own personnel.
(c) The Client is not authorised to perform any alterations of the APPLICATION.
(d) Insofar as the Provider, during the term of this contract, implements any new versions, updates, upgrades or any other new deliveries with respect to the APPLICATION, the afore-stated rights shall also apply to them.
(e) The Client shall not be entitled to any rights not expressly granted to the Client pursuant to the afore-stated provisions. In particular, the Client shall not be entitled to use the APPLICATION beyond the scope of the contractual agreement or to allow its use by any third parties or to make the APPLICATION accessible to any third parties. In particular, the Client shall not be permitted to reproduce, sell or temporarily provide the APPLICATION to a third party, including but not limited to its rental or loan.
(f) The Provider’s invoices shall be due for immediate payment in advance at the beginning of the period during which the services will be rendered.
The Client shall be deemed to be in default ten days after the date of the invoice. If the Client is in default of paying the user fee, the Provider reserves the right to limit access to or to completely block the APPLICATION.
(2) Client’s obligations for secure use
(a) The Client shall take all necessary precautions to prevent use of the APPLICATION by unauthorised parties.
(b) The Client shall be liable for ensuring that the APPLICATION is not used for any racist, discriminatory or pornographic purposes or in any ways that jeopardise youth protection, for purposes that are of a politically extremist nature or in violation of statutory provisions or government regulations or requirements, or for ensuring that such data, including but not limited to APPLICATION DATA, are not generated and/or stored on the SERVER.
(3) Violation of the provisions in paragraphs (1) and (2) above by the Client
(a) If the Client violates the provisions in paragraph (1) or (2) above for any reasons within its scope of responsibilities, the Provider, following previous written notification of the Client, may block the Client’s access to the APPLICATION or to the APPLICATION DATA, if such violation can demonstrably be stopped by such blocking.
(b) If the Client unlawfully violates the provisions in paragraph (2) (b) above, the Provider shall be entitled to delete the data or APPLICATION DATA affected by such violation. In the event of a user’s unlawful violation, the Client shall, on request, immediately furnish to the Provider any and all information pertaining to the assertion of claims against the user, including but not limited to the user’s name and address.
If the Client, in spite of the Provider’s written warning, continues to or repeatedly violates the provisions of sections (1) or (2) above, and if the Client is responsible for such violations, the Provider may terminate the contract for cause and without notice.
(4) Insofar and to the extent that in conjunction with the Client’s use of the APPLICATION under the terms of the contract any Client data on the Provider’s server are generated in databases, the Client shall be entitled to all the rights pertaining to such data and databases. This shall also apply beyond the term of this contract.
- 5 Liability for third-party rights
(1) The Provider shall immediately notify the Client of any third-party rights pertaining to the APPLICATION and of any impairment of the performance of agreed services resulting thereof and provide to the Client full access to the APPLICATION DATA in a suitable manner.
(2) The Client, insofar and to the extent that its use of the APPLICATION is impaired, shall be entitled to reduce the fee.
(3) In the event that use of the APPLICATION and/or the APPLICATION DATA is denied for legal reasons according to section 1 above such denial shall be deemed to be unavailability.
Insofar as the Provider does not have or no longer has the necessary rights to properly perform its contractual obligations, including but not limited to the necessary rights to use the software and documentation, and the APPLICATION is not usable for more than one (1) month, the fee shall be reduced starting with the second month.
(4) The Provider shall not be liable for any violation of third-party rights by the Client, insofar and to the extent that such violation results from exceeding the user rights granted under the terms of this contract. In this case, the Client shall indemnify the Provider, upon the Provider’s initial demand, against any and all third-party claims.
§ 6 Fee
(1) The remuneration to be paid for the services to be rendered for granting the use of the APPLICATION and provision of storage space including data backup per room per month shall be in accordance with the respectively valid price list published online on the homepage of ibelsa GmbH. All amounts are quoted net excluding VAT at the rate applicable at the particular time.
(2) The first thirty (30) days of use of the APPLICATION, starting at the time of its provision in operable condition, shall be free of charge. The Client’s payment obligation shall commence on the thirty-first (31st) day of such provision.
(3) Fees shall be charged and payable in advance, irrespective of the form of payment selected. Depending on the form of payment, payments by SEPA direct debit, credit card or Paypal can be made either monthly, biannually or annually; payments against invoices shall be made biannually or annually.
(4) The Provider shall have the right to adjust the respective price list to changed market conditions or increased procurement/fixed costs for a maximum of once per quarter. The price adjustment shall be announced in advance in written form or by email one (1) month in advance.
In this case, the Client, within one (1) month after receipt of such announcement, shall have the right to terminate in writing the contractual relationship effective the date on which the price increase will come into effect. The Provider shall advise the Client of this right of termination together with its announcement of the price increase in written form or by email.
(5) If the Client fails to pay the fees due within ten (10) days following the billing date at the latest, the Client shall be in default even without a separate dunning notice by the Provider. Under the prerequisites of § 4 (1) (g) above, the Provider shall be entitled to block access to the APPLICATION.
§ 7 Client’s duties and obligations
The Client shall fulfil all duties and obligations required for the performance of the contract. The Client shall
(1) keep confidential the authorisations of use and access allocated to the users as well as any agreed identification and authentication safeguards, protect them against third-party access and not disclose them to any unauthorised users. Such data shall be protected by suitable and customary measures. The Client shall immediately inform the Provider in the event that the Client suspects that the access data and/or passwords may have been disclosed to any unauthorised persons;
(2) create the required prerequisites for access;
(3) comply with the restrictions/obligations concerning the rights of use according to § 4 above, including but not limited to the following:
(a) name any and all designated users of the APPLICATION according to § 4 above and communicate related changes;
(b) not retrieve without authorisation or allow the unauthorised retrieval of information or data or intervene or allow the invention with programs operated by the Provider or perform any unauthorised intrusion into the Provider’s data networks or promote such intrusion;
(c) not misuse the exchange of electronic messages enabled within the scope and/or use of the APPLICATION for the unsolicited sending of messages and information to third parties for advertising purposes;
(d) indemnify the Provider against third-party claims based on the Client’s unlawful use of the APPLICATION or resulting from data-protection, intellectual-property protection or other legal disputes caused by the Client in relation to use of the APPLICATION;
(e) obligate the authorised users, on their part, to comply with the provisions of this contract that apply to them;
(4) ensure that it observes all third-party rights to the material it uses;
(5) obtain the necessary consent of the respective data subjects to the extent that the Client collects, processes or uses personal data in the course of using the APPLICATION and no statutory exemption applies;
(6) check for viruses prior to sending data and information to the Provider and utilising state-of-the-art anti-virus programs;
(7) immediately report to the Provider any deficiencies in contractual services, including but not limited to deficiencies in the services rendered pursuant to §§ 2 and 3 above. If the Client fails to make timely notification for any reason for which the Client is responsible, such failure shall constitute contributory cause or contributory negligence. Insofar as the Provider, due to the Client’s failure of or delay in making such notification, was unable to remedy the deficiency, the Client shall not be entitled to reduce the fee pursuant to § 5 above of these terms either in whole or in part, demand compensation for damages incurred due to the deficiency or terminate the contract for cause without notice due to the deficiency. The Client shall be required to explain that it is not responsible for failure of making such notification;
(8) make timely payment of the fee agreed pursuant to § 6 above or ensure adequate coverage of the credit card or normal bank account, as applicable.
(9) if, for the purpose of generating APPLICATION DATA by means of the APPLICATION, the Client transmits data to the Provider, to perform appropriate data backups at regular intervals and to create its own backup copies in order to enable the reconstruction of such data in case of data and information loss.
§ 8 Data security, data protection
(1) The parties and their employees shall comply with applicable statutory data protection provisions, including but not limited to those applying in Germany.
(2) If the Client collects, processes or uses personal data, the Client guarantees that it has the right to do so according to applicable law, including but not limited to statutory data protection provisions, and shall indemnify the Provider from any third-party claims in case of a breach.
Details are provided for in the Data Processing Agreement to be concluded between the Provider and the Client.
(3) Use of the authorisation system
(a) Following its initial registration, the Client, for the purpose of managing its account, shall receive access to the authorisation system and to the Hotel-PIN required for authentication vis-à-vis the Provider. Issuing of access and user rights and their administration shall be the Client’s sole responsibility and take place at the Client’s risk. The Client’s obligations in this context include but are not limited to ensuring that access data are not disclosed to external parties.
(b) The Client shall ensure that any data for user identification and authorisation and the Hotel-PIN required for authentication vis-à-vis the Provider are issued only to the respectively authorised persons and undertakes to maintain secrecy about such data. Furthermore, the Client shall ensure that persons with access authorisations undertake to maintain secrecy as well.
(c) In the event that any data for user identification and authorisation should get into the hands of unauthorised persons or in the event that unauthorised persons should otherwise acquire access to data, the Client undertakes to report such unauthorised access to the Provider and to take appropriate measures to prevent further access by such persons.
§ 9 Non-disclosure
(1) The contracting parties, their employees and their agents shall maintain secrecy about any and all information to be treated as confidential matter which has come to their attention within the scope of this contractual relationship and use such information – regardless for what purpose – vis-à-vis any third parties only pursuant to a previous written agreement reached with the other party. Confidential information includes any information expressly designated as confidential by the party providing it as well as any information whose confidential nature is clearly evident due to the circumstances of its provision. Data to be treated as confidential matter by the Provider includes but is not limited to APPLICATION DATA in the event that the Provider should be informed of such data.
(2) The obligations pursuant to (1) above shall not apply to any information or parts thereof for which the receiving party demonstrates that it was aware of it prior to the date of receipt or that the information was generally accessible;
(a) to any information that was publicly known or generally accessible prior to the date of receipt;
(b) to any information that became known or generally accessible after the date of receipt, provided that the party receiving the information was not responsible for such disclosure.
(3) Any public statements by the parties about their collaboration shall be issued only with prior mutual consent.
(4) The obligations pursuant to (2) above shall survive the term of this contract for an indefinite period of time, to wit for as long as no exception pursuant to (2) above has been demonstrated.
§ 10 Insolvency and impending insolvency of a contractual party
(1) Either party shall immediately inform the other party if
(a) it has applied for initiation of insolvency proceedings or intends to do so within the coming 14 calendar days,
(b) a third party has applied for initiation of insolvency proceedings,
(c) it has to cease payments due to financial difficulties,
(d) measures have been taken against it to satisfy claims of third-party creditors at the same time it is experiencing financial difficulties, or
(e) if it has consented to any agreements to satisfy claims of third-party creditors at the same time it is experiencing financial difficulties.
(2) If any of the circumstances listed in (1) above exists, the other party may terminate the contractual relationship for cause without notice.
§ 11 Liability and limitations of liability
(1) ibelsa GmbH, its representatives or vicarious agents shall be liable in cases of intent (malice) or gross negligence as well as in cases of culpable conduct causing injury to life, body and health pursuant to statutory provisions.
(2) Apart from the above, ibelsa GmbH shall only be liable according to the provisions of the Product Liability Act, due to culpable breach of material contractual obligations or to the extent that ibelsa GmbH has fraudulently concealed the defect or has assumed a guarantee for the procurement of the APPLICATION. However, any claim for damages due to culpable breach of material contractual obligations shall be limited to the damage typically foreseeable for such contracts, unless any of the other aforementioned cases exists at the same time.
(3) The Provider points out that it assumes no guarantee that, following the installation of updates, there will be no occurrence of errors in the APPLICATION. The Provider’s liability for compensation of damages due to such errors is excluded. Apart from this, the provisions in §11 (1) and (2) above of these General Terms and Conditions remain in effect.
(4) The Provider’s contractual obligations do not include checking any data received or sent to third-party systems via an interface of the APPLICATION in terms of being consistent, complete, correct and up-to-date. This obligation exclusively rests with the Client.
§ 12 Term and termination of contract
(1) The contractual relationship shall commence upon the execution of the contract pursuant to § 2 (3) above and be concluded for an indefinite period of time.
If the Client selects biannual or annual payment intervals, the period of the payment interval shall be deemed to be the minimum term of the contract. Such minimum terms of the contract (biannual or annual) shall automatically be extended by the same periods, unless they are terminated by giving one month’ notice prior to the respective expiry of the term. During a minimum term of the contract a termination pursuant to this § 12 (3 below) is excluded.
(2) The fees payable for activating the TSS (technical security system pursuant to the “Kassensicherungsverordnung” regulating cash register fiscalisation for Clients based in Germany) shall not be reimbursable in the event of an earlier ending of the contract pursuant to this §12 (1 above). Cash register fiscalisation units are available for other countries as well.
(3) The contract, or individual components (products) of the contract, can be terminated by either party by giving one month’ notice before the end of a month or before the end of the minimum contractual term. Any termination shall require the text form.
(4) Termination for cause due to or in conjunction with a breach of obligations shall only be possible after sending a prior warning in text form and with a reasonable notice period of at least 14 business days.
§ 13 Obligations upon and following the termination of the contract
(1) Upon termination of the contractual relationship at the latest, the Provider, if requested to do so by the Client, shall be obligated to provide to the Client the APPLICATION DATA stored by the Client and any other data in the bulk memory made available pursuant to § 2 (4) above. During the term of the contract, Client data and extensive reports may be autonomously exported from the APPLICATION at any time.
(2) Insofar as the Client does not request such data within the period of one year after the contract has ended, the PROVIDER shall have the right to delete such data.
(3) The Client shall be responsible for compliance with any retention periods stipulated by trade and tax laws, including but not limited to archiving of data after the contractual relationship has ended or in the event of a transfer of undertakings. After the contractual relationship has ended, the Provider shall not maintain or archive any Client data beyond the periods described in these General Terms and Conditions.
(4) Termination by either of the contractual parties
In the event of a termination that is not associated with this §13 (5 below), the Client shall continue to have access to the data stored in its account for the period of one year following the termination date. After this period has elapsed, the Provider will delete the account including any and all data it contains. For TSS data (“Kassensicherungsverordnung”), the storage period stated in this §13 (6 below) shall apply.
(5) Termination due to change in leaseholder/renaming of business
In the event of a change in leaseholder/renaming of the business in which the Client transfers its account, in whole or in part, to a successor or a successor business, the Provider, if requested to do so and against payment of a fee, shall perform a data dump, pursuant to this §13 (1 above) up to the date of the change in leaseholder/renaming of the business. Insofar as the Client fails to request such data within one year after the contract has ended, the PROVIDER shall delete the data. As of the effective date of the change in leaseholder/renaming of the business, the Client shall no longer have access to the account.
(a) If the client decides to transfer its account and the data it contains in the course of a change in leaseholder/renaming of business, in whole or in part, provided that the Provider is able to technically solve such transfer, the Client shall be solely responsible, to the extent that any third-party rights are affected by such transfer, for compliance with all relevant statutory provisions (including but not limited to statutory data protection provisions) and for implementing them. The Client shall indemnify the Provider from any liability in this respect. A change in leaseholder/renaming of business may only take place when the Client has complied with the periods prescribed for this and the Provider has received a written statement of consent by the Client, signed by a duly authorised person.
§ 14 TSS (Cash Register Fiscalisation Regulation for Germany)
(1) The connection of the TSS (Technical Security System pursuant to the “Kassensicherungsverordnung”) is mandatory in Germany.
The Provider prepares for the TSS connection in the APPLICATION. The Client shall activate the TSS itself by clicking the ordering button in its account. Subsequently, the Provider shall send to the Client an activation email to the email address the Client has stored in its ibelsa admin account. With this activation email, the Client can subsequently set up its access data to the TSS dashboard. The Client shall solely be responsible for ensuring that only persons authorised by the Client will have access to this admin account and the email address stored in it.
Should the Client, in contravention of the statutory obligation, fail to activate the TSS pursuant to the “Kassenversicherungsverordnung”, the Client shall exclusively bear the legal consequences. The Client shall indemnify the Provider, upon the Provider’s initial demand, against any third-party claims which may be asserted against the Provider due to the Client’s failure to activate the Technical Security System (TSS).
(2) Following the termination of the contract, the Provider shall continue to maintain the data collected and stored by the Client’s TSS for one month beyond the effective date of the termination. The Provider shall subsequently delete such data.
§15 Alteration clause
The Provider shall have the right to alter the description of services or the General Terms and Conditions and other terms and conditions. The Provider shall make such alterations only for valid reasons, including but not limited to reasons relating to new technical developments, changes in case law or other equivalent reasons. If such alteration should substantially disturb the balance of contract between the parties, the alteration shall not be made.
The Client shall be informed about the alteration by the Provider sending the altered General Terms and Conditions to the Client’s most recently known email address. The altered General Terms and Conditions shall become a component of the contract unless the Client objects to such inclusion in the contractual relationship vis-á-vis the Provider in writing within six hours following receipt of the alteration notice.
§16 Final provisions
(1) The contractual relationship shall be governed by German law excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) There are no ancillary provisions not stipulated in this contract and its attachments. Amendments or supplements to this contract and to its attachments must be in text form in order to be effective. This also applies to a waiver of the stipulation requiring the text form.
(3) The parties to the contract typically communicate by email. The emails sent by either party shall be deemed to have been received unless returned to the sender of the email as non-deliverable.
(4) Any potential ineffectiveness of individual provisions of this contract shall not impair the effectiveness of the remainder of the contractual content.
(5) If, in the course of the practical implementation of this contract, any gaps emerge which the contractual parties did not foresee, or if the ineffectiveness of any provision is legally established, or if both parties agree on such ineffectiveness, the parties undertake to fill such gap or replace such ineffective provision in an objective form reasonably oriented to the economic purpose of this contract.
(6) The legal venue shall be Saarbrücken
Version effective on 01 October 2020