Terms and Conditions (“T&C”) for the Use of the Smoobu Platform

Link to the old Terms and Conditions

 

  1. General
    1. Smoobu GmbH, Pappelallee 78/79, 10437 Berlin (“Smoobu”), is a software as a service provider, providing software for the central management of short-term accommodation, in particular holiday homes or vacation rentals, under a domain and as an app (“Platform”). The Platform, including any updates, enhancements, new features, and/or the addition of new web functionalities, is subject to these T&Cs.
    2. The Platform offers integrations with third-party tools (“Integrations”). End users of the Platform (“Users”) are required to separately enter into direct contractual agreements with said third parties or purchase these Integrations directly via Smoobu subject to separate terms provided by the third party vendor and separate invoicing.
    3. The use of the Platform is exclusively subject to these T&Cs in the version applicable at the time the Platform is accessed. The most recent version can be viewed on the Platform.
    4. The Platform may not be used for improper or fraudulent purposes.
    5. These T&C shall apply to all Users whether as natural persons, legal entities or partnerships, each with entrepreneurial capacity. Users are deemed to be owners acting as individuals for their own company, as well as accommodation providers, agencies, employees or vendors acting on behalf of owners.
    6. Smoobu reserves the right to exclude Users from using the Platform in certain cases, particularly if the User:
      1. contravenes section (4) above;
      2. uses automated systems or software to extract data from the Platform (so-called screen scraping), either for commercial or non-commercial purposes;
      3. circumvents existing restrictions in robot-exclusion-headers or in other measures that restrict or prevent access to the Platform;
      4. uses a device, software or program that affects or tries to affect the regular functionality of the Platform,
      5. carries out an act that inappropriately strains Smoobu’s servers, computer or network;
      6. fails to make payment per section 6 below; or
      7. use of the Service beyond the contractually agreed or usual and customary scope.

  2. Smoobu’s services
    1. The core functionality of the Platform is to facilitate calendar and price synchronization, including hosting of said data, (“Core Features”). Additional features may be provided via the Platform and be subject to additional terms which can be reviewed here.
    2. Smoobu does not ensure the uninterrupted availability of the Platform. The annual average uptime of the Platform is 98%. Smoobu may carry out technical maintenance on the Platform at any time, generally outside normal business hours, and to the extent necessary. Use of the Platform may be restricted or not possible during said periods. In such cases, the User shall not be entitled to any claims for damages. Where possible, Smoobu shall inform the User in advance of any extensive maintenance work that results in Platform restrictions or unavailabilities.
    3. If applicable, upon receipt of notification of any malfunctions or errors Smoobu shall consider all economically viable efforts and technically feasible solutions to restore the Platform to its usual environment and functionality. For this purpose, said notifications must include sufficiently specific descriptions. It is the sole responsibility of Smoobu to make a final determination of the urgency of said notifications. Smoobu customer service is available during regular business hours for such notifications and corresponding communication.
    4. The Platform may offer (“Beta Services”). Beta Services are prominently marked as so and may not function as described. Beta Services may be improved or withdrawn at the sole discretion of Smoobu, where possible advance notice will be provided.
    5. Smoobu does not guarantee the error-free functionality, reliability, or performance of any Beta Services.
    6. Third-party tools may be integrated via the Platform. While reasonable efforts will be made to support such Integrations, it is expressly agreed that Smoobu shall bear no liability for any issues, damages, or losses arising from such Integrations.
    7. Smoobu does not guarantee the compatibility, reliability, or performance of any Integration.
    8. Smoobu accepts no liability for content outside of the Platform, including, but not limited to any websites linked in the Platform.
    9. Smoobu shall provide the User with access to the Platform in accordance with section 3 below.
    10. Smoobu offers various subscription options (“Subscription”), and available features may differ between Subscriptions as detailed on the Platform.

  3. Rights and obligations of Users
    1. Smoobu grants Users a limited, non-exclusive and non-transferable, global license for the duration of the Agreement to access the Platform within the software as a service scope in accordance with these T&C and their Subscription.
    2. The User guarantees that it has the necessary power to enter into this legal agreement (“Agreement”) and has read, understood and accepted the applicable T&C including for any applicable Assistant Account Users (defined below), whose use of the Platform is also subject to this Agreement. The User warrants that all data it provides to Smoobu is correct and up-to-date at all times. Smoobu has the right to verify, at its sole discretion, the integrity, accuracy and completeness of the User’s data, as well as to implement further checks through manual and technical checks possibly carried out by external service providers or a self-disclosure (e.g. by answering a questionnaire) on its own costs in a timely manner.
    3. Users shall comply with all applicable laws, regulations, and industry standards. This applies, in particular but without limitation to anti-corruption, antitrust, data protection, anti-money-laundering, child labor, prevention of terrorism, export controls and sanctions, tourism regulations as well as health, safety, security and environmental requirements. If required by law or due to other regulatory requirements, Users shall ensure that it and its representatives and subcontractors fully cooperate with Smoobu and provide any required information.
    4. Users are provided with individual access to the Platform (“User Access”) which can be realized by entering a username and password. A User must choose a secure and appropriate username (email address) and an adequate and individual password. The password must be set following all state-of-the-art technical and security recommendations and kept confidential at all times.
    5. The User is responsible for maintaining the confidentiality of the User Access and for all activity conducted by, or on behalf of, the User.
    6. The User shall inform Smoobu immediately if it becomes aware of any suspicious or unauthorized use or access to the Platform and take all appropriate security measures to secure their User Access to the Platform. Furthermore, the User will immediately inform Smoobu if it detects problems or suspicious behavior relating to the Platform.
    7. The User will refrain from the following activities:
      1. Reverse Engineering: The User shall not engage in any form of reverse engineering, decompiling, disassembling, or otherwise attempt to derive the source code, underlying algorithms, or structure of the Platform, whether in whole or in part;
      2. Inserting Bugs or Malicious Code: The User shall not introduce, upload, transmit, or distribute any viruses, worms, trojan horses, malware, or any harmful or malicious code that may disrupt, damage, or impair the functionality, security, or integrity of the Platform; and
      3. Copying and Reproduction: The User shall not copy, reproduce, modify, distribute, display, perform, or create derivative works based on the Platform or any part thereof.
    8. Users must treat their User Access and all data stored on the Platform as Confidential Information (see section 9 below).
    9. If the User culpably breaches these obligations, they are responsible for any resulting damage.
    10. The User may assign additional assistant user accounts “Assistant Accounts” via the Platform. The User is responsible for the management of Assistant Accounts, for their compliance with their use of the Platform in accordance with these T&C and with all relevant laws and regulations.
    11. Users are entirely responsible for any and all activities that occur under the User´s account and any related Assistant Accounts. Smoobu will not be liable for any loss that Users may incur as a result of unauthorized access due to a Users failure to comply with these T&C. Users may be held liable for losses incurred by Smoobu or third parties due a Users failure to comply with these T&C.
    12. Smoobu´s Platform is accessible and usable via the internet. Users are responsible for the necessary internet hardware, network connection and its adequate speed; the appropriate computer systems’ security settings, proper IT compatibility, and maintenance of any equipment necessary to connect to, access, or otherwise access the Platform.
    13. The User is responsible for the correct entry, accurate maintenance and regular backup of the data and information required to use the Platform. The provisions under the heading “Liability and Indemnification” remain unaffected by this section.
    14. The User permits Smoobu to use its name for research, customer reference, marketing, advertising and sales promotional purposes until revoked by the User (email is sufficient) which may include communications to Users as part of these efforts.

  4. Intellectual Property
    1. Smoobu is the sole and exclusive owner of all intellectual property rights including but not limited to copyrights, patent rights, trade secrets and trademarks which are developed and provided for in accordance with these T&C.
    2. The User shall not upload or otherwise provide any content to the Platform or use the Platform in any way that breaches any law or infringes any organization’s or individual’s rights or contravenes any applicable laws and/or regulations.

  5. Liability and Indemnity
    1. Smoobu shall be liable without limitation for any legal reason in the event of intent or gross negligence, in the event of intentional or negligent injury to life, limb or health, on the basis of a guarantee promise, unless otherwise regulated in this respect, or on the basis of mandatory liability such as under the Product Liability Act. If Smoobu negligently breaches a material contractual obligation, liability shall be limited to the foreseeable damage typical of the contract, unless unlimited liability applies in accordance with the above clause. Essential contractual obligations are obligations which the contract imposes on Smoobu according to its content in order to achieve the purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the User may regularly rely. Any further liability of the provider is excluded.
    2. The parties agree that the amount of the damages foreseeable and typical for the contract pursuant to clause (1) above is limited to the Fees paid by the User to Smoobu in the immediately preceding 12-month period.
    3. The above liability provisions also apply with regard to the liability of Smoobu for its vicarious agents and legal representatives.
    4. The User will indemnify, defend and hold harmless Smoobu (including its directors, employees, agents or contractors) from and against any claims, costs, damages, losses, liabilities and expenses relating to any claims, actions, suits or proceedings by third parties against Smoobu arising out of the Users failure to comply with these T&C.
    5. The Platform, the Integrations, their use and the results of such are provided “as is” to the fullest extent permitted by law. Smoobu disclaims all express or implied warranties, including warranties of satisfactory quality and fitness for a particular purpose which may be implied in respect of the Platform or Integrations.

  6. Billing and Payment
    1. Users shall pay the applicable fees (“Fees”) as specified on the Platform per Subscription. Except as otherwise provided (i) payment obligations are non-cancellable, (ii) Fees are non-refundable; (iii) all Fees are payable in advance including both initial Subscriptions and renewals, and (iv) All Fees are subject to the applicable statutory value-added tax (VAT).
    2. Smoobu may provide the User with a free trial license of the Platform for a limited period of time, for a duration at Smoobu’s sole discretion (“Test Phase” or “Free Trial”). The Test Phase shall exclusively include the testing of the Platform in a test environment with a possible limited scope to the full version subject to a charge; otherwise, the rights of use granted in these T&Cs shall apply. To continue using the Platform after the end of the Test Phase a User’s obligation to pay Fees begins.
    3. In case of late payment of Fees Smoobu is entitled to:
      1. Receive interest at the statutory rate (§ 288 BGB) for the period of the payment delay; and
      2. Suspend access to the Platform, Smoobu’s claim to the contractually agreed Fees remains unaffected.
    4. Should automatic billing fail to occur for any reason, Smoobu will issue an electronic invoice indicating that a User must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.

  7. Term and Termination
    1. Unless otherwise agreed in writing, this Agreement can be terminated with one month’s written notice, email is sufficient. Subscriptions will automatically renew for subsequent terms (same duration and Fees as initial Subscription) unless terminated in accordance with this clause or if said Subscription is no longer offered by Smoobu. The right to extraordinary termination of the Agreement for good cause remains unaffected.
    2. Smoobu may terminate this Agreement immediately on written notice if the User:
      1. Materially breaches these T&C; or
      2. Fails to pay any Fees due after 30 days upon falling due.
    3. Upon termination of a Subscription, Smoobu, in its sole discretion may provide the User with access to an alternative Subscription.
    4. Upon termination of the Agreement, and for an additional period of up to 30 days after termination end date, the User may download its data from the Platform.
    5. Clauses 5 (4), 6, 7, and 9 shall survive termination.

  8. Data Protection
    1. Both parties shall comply with all applicable laws, including but not limited to the REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016, (the “GDPR”) and the Federal Data Protection Act (the “BDSG”). Each party shall provide the other party any cooperation reasonably requested to enable the other party’s compliance with this clause.
    2. The parties agree to incorporate the data protection agreement included as Annex A, which forms part of these T&C, to provide for the processing of User´s guest´s personal data by Smoobu (“Data Protection Agreement”). Smoobu is a Processor (as defined by the GDPR) for any guest personal data uploaded to the Platform by or processed on behalf of a User.
    3. A User shall ensure they make all necessary data protection disclosures to data subjects regarding the use of the Smoobu Platform.

  9. Confidentiality
    1. Confidential Information” means any information disclosed by or relating to a party including information about a party’s business operations, products or trade secrets and which is either marked as confidential or which a reasonable person would regard as confidential.
    2. Either party may share Confidential Information with its Group Companies. “Group Companies” means any holding company or subsidiary of a party or any of its holding companies. A company is a subsidiary of another company, its holding company, if that other company (i) holds a majority of the voting rights in it, or (ii) is a member of it and has the right to appoint of remove a majority of its directors, (iii) or is a member of it and controls alone a majority of the voting rights in it.
    3. Save as set out in these T&C neither party will disclose Confidential Information. Confidential Information shall be kept confidential.
    4. The obligation at clause (3) above shall not apply to Confidential Information to the extent it:
      1. Is in the public domain (other than as a result of a breach of these T&C);
      2. Can be demonstrated as having been independently developed by the receiving party; or
      3. Is required to be disclosed by law or court order.
    5. Both parties may disclose Confidential Information to its employees, agents, professional advisors or contractors on a need to know basis, provided that such individuals are bound by confidentiality obligations at least as restrictive as provided for in these T&C.
    6. Smoobu reserves the right to disclose any information as Smoobu deems necessary to satisfy any applicable law, regulation, legal process or governmental or regulatory request.

  10. Final provisions
    1. This Agreement is subject to the substantive law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
    2. If the User has no general place of jurisdiction in Germany, the parties agree that the place of jurisdiction for all disputes arising from this contractual relationship shall be the registered office of Smoobu.
    3. Without the prior written consent of Smoobu, the User may not, assign, transfer, novate, sub-license any rights or obligations, whether in their totality or in part, to a third party, unless otherwise agreed upon. Nonetheless, each party may assign the rights and obligation under the T&C to the surviving entity, in connection with a merger, reorganization, consolidation, change in control or a sale of basically all of its assets, provided that the surviving entity is not a direct competitor, or the other party and assignee agrees in writing to be bound by these T&C.
    4. If individual provisions in these T&C shall become null or void, this will not affect the remaining provisions of these T&C. In place of ineffective or inapplicable provisions, the parties shall agree on an appropriate agreement, which comes closest to what the parties intended, and which corresponds to what would have been agreed in accordance with the purpose and intention of these T&C if the matter in question had been considered earlier.
    5. In the event of (“Force Majeure”) that prevents Smoobu from providing the Platform, Smoobu shall be released from its obligation to perform for the duration of the Force Majeure and additionally for a reasonable period of time for the resumption of the Platform. In this case, deadlines shall be postponed by the aforementioned period. Force Majeure events shall include, in particular, fire, explosion, flood, war, blockade, embargo, labor disputes, pandemics and official measures in connection with the aforementioned events for which Smoobu is not responsible. Claims for damages are excluded in this case. Smoobu is also not responsible for the functionality and availability of third-party services and other third-party components that the User maintains or has obtained via third parties, in particular the booking portals in the distribution network (connected online travel agents).
    6. Smoobu is authorized to amend these T&C in its sole discretion and subject to a reasonable period of notice. Existing Users will be notified by email at least two weeks before the change comes into effect. If the existing User does not object within the deadline set in the notification of change, their consent to the change shall be deemed to have been granted. If it objects, the changes shall not come into force; in this case, Smoobu shall be entitled to terminate the Agreement extraordinarily at the time the change comes into force. The notification shall refer to the intended amendment to these T&C, the deadline and the consequences of an objection or failure to object.
    7. Smoobu shall be entitled to adapt the Platform to the respective proven and established state of the art and technology. These adaptations include, among other things, safety-related and/or legally necessary changes, additions and extensions to the Platform; changes in accordance with generally applicable development specifications that have only a minor influence on the User’s work processes. The influence is minor if changes are made to the processes on the part of the User, but these are not replaced or terminated, but continue to exist with appropriate changes on the part of the User and at the User’s expense.
    8. Smoobu reserves the right to collect and statistically analyze data regarding Features (defined in Annex B) and how Users interact with and use the Platform for the purposes of quality assurance and the further development of Smoobu´s Platform and Features.
    9. Adjustments due to changes in the services offered by distribution networks (in particular OTA – Cloud-based Online Travel Agencies), which can be unilaterally enforced against Smoobu on the basis of the applicable contractual conditions. Smoobu reserves the right to replace the system requirements with others. In this case of a change described herein with significant influence, Smoobu shall inform the User in advance, at least in text form, using all available information and knowledge with the usual care. Significant influence exists, if functionalities are omitted; or are not only insignificantly restricted and therefore considerable additional organizational effort is required on the part of the User, as well as professional or technical changes have to be made.

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