Terms & Conditions - Software Procurement & Analytics Platform
Terms & Conditions
- SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services [in accordance with the Service Level Terms attached hereto as Exhibit B]. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C.
- RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. [Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
- SUBMISSION OF USER RATINGS
3.1 By submitting a User Rating to our Platform, you agree to the following:
(b) You may not submit any Content that you are not entitled to disclose under any law or legal agreement. You are solely responsible for the content you submit to our website.
© By submitting Content to our Site, you grant us the irrevocable, royalty-free, non-exclusive right to use, modify, distribute, reproduce, display and publish the Submitted Content and transfer to us all right, title and interest in and to such Content, including all intellectual property rights.
(d) We may edit or remove user reviews without consulting the author.
(e) You acknowledge that your User Review represents your actual and accurate experience with the Product and has not been influenced in any way by the provider of the Product. You indemnify us against all claims arising out of any breach of these terms and conditions.
- CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d)was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.2 Customer shall own all right, title and interest in and to the Customer Data [,as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
4.3 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
- PAYMENT OF FEES
5.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or thencurrent renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
5.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
- TERM AND TERMINATION
6.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
6.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, company does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. Except as expressly set forth in this section, the services and implementation services are provided “as is” and company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
The Customer indemnifies the Company already now from all claims of third parties, in particular from claims due to copyright and trademark infringements, which should be raised against Company in connection with the contractual use of information, data and contents provided by the user, at first request. The Company is entitled to take suitable measures to defend itself against claims of third parties or to pursue its rights. The indemnity also includes the reimbursement of costs incurred by the Company due to legal prosecution/defence.
- LIMITATION OF LIABILITY
Notwithstanding anything to the contrary, except for bodily injury of a person, company and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond company’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by customer to company for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not company has been advised of the possibility of such damages.
(1) The law of the Federal Republic of Germany shall apply to the exclusion of the relevant reference rules of German international private law and the UN Convention on Contracts for the International Sale of Goods.
(2) All legal relationships between the Company and the customer are exclusively subject to the law of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods. If the customer is a consumer - i.e. a natural person who concludes a legal transaction for purposes which can predominantly neither be attributed to his commercial nor his self-employed professional activity - sentence 1 only applies insofar as the choice of law does not undermine the protection of mandatory legal provisions of the state in which the consumer has his habitual residence. If a customer is a merchant or a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the relationship between hotelhero.tech and the customer is Berlin. The same applies if the customer does not have a general place of jurisdiction in Germany or if his residence or habitual abode is not known at the time the action is filed. Mandatory legal regulations remain unaffected by this.
Service Level Terms and Agreement
- Hotelhero Service Commitment: 99.95% Uptime Hotelhero will use commercially reasonable efforts to make your Hotelhero Software available with a Monthly Uptime Percentage of at least 99.95% during any monthly billing cycle (the “Service Commitment”). Subject to the SLA Exclusions, if we do not meet the Service Commitment, you will be eligible to receive a Service Credit. A Monthly Uptime Percentage of 99.95% means that we guarantee you will experience no more than 21.56 min/month of Unavailability.
- Definitions “Maintenance” means scheduled Unavailability of the Hotelhero Software, as announced by us prior to the Hotelhero Software becoming Unavailable. “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the Hotelhero Software were Unavailable. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any SLA Exclusion. “Service Credit” means a credit denominated in US dollars, calculated as set forth below, that we may credit back to an eligible account. “Unavailable” and “Unavailability” mean, for app services and databases, when your service or database is not running or not reachable due to Hotelhero’s fault.
- Service Commitments and Service Credits Service Credits are calculated as a percentage of the total charges due on your Hotelhero invoice for the monthly billing cycle in which the Unavailability occurred, applied proportionally to the services that were Unavailable, in accordance with the schedule below: • For Monthly Uptime Percentage less than 99.95% but equal to or greater than 99.0%, you will be eligible for a Service Credit of 10% of the charges attributable to the affected resources • For Monthly Uptime Percentage less than 99.0%, you will be eligible for a Service Credit of 30% of the charges attributable to the affected resources For example, if you have an app software that is Unavailable for 25 minutes, you would be eligible for a Service Credit for 10% of that software’s usage for the month. We will apply any Service Credits only against future payments for the Services otherwise due from you. At our discretion, we may issue the Service Credit to the credit card you used to pay for the billing cycle in which the Unavailability occurred. Service Credits will not entitle you to any refund or other payment from Hotelhero. Service Credits may not be transferred or applied to any other account.
- Sole Remedy Unless otherwise provided in the Terms, your sole and exclusive remedy for any unavailability, non-performance, or other failure by us to provide the Services is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA.
- Credit Request and Payment Procedures To receive a Service Credit, you must submit a claim by emailing firstname.lastname@example.org. To be eligible, the credit request must be received by us by the end of the second billing cycle after which the incident occurred and must include: • the words “SLA Credit Request” in the subject line; • the dates and times of each Unavailability incident that you are claiming; • the account username(s) and email; and If the Monthly Uptime Percentage of such request is confirmed by us and is less than the Service Commitment, then we will issue the Service Credit to you within one billing cycle following the month in which your request is confirmed by us. Your failure to provide the request and other information as required above will disqualify you from receiving a Service Credit.
Company will provide Technical Support to Customers by electronic mail and will be available by chat on weekdays during the hours of 9:00 am through 5:00 pm CET, with the exclusion of Federal Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by emailing email@example.com or using the chat feature inside of Hotelhero.
Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.