1. Scope of application
These terms and conditions apply to all contracts between Smoobu and a customer regarding the provision of software of Smoobu as a software as a service provider, including free the trial access.
2. Scope of Services and Delivery
2.1. The nature, content and scope of the services provided by Smoobu are given in the contract.
2.2. Smoobu will provide the software over the internet.
2.3. Statements made by employees of Smoobu or third parties as well as advertisements shall, in case of doubt, only constitute a specification of the performance if Smoobu has confirmed this in writing.
2.4. Smoobu shall be entitled to modify and adapt the content of its services, including the software provided, in the context of user-related, technological or substantive further developments, provided that the agreed functionalities of the software are not substantially restricted thereby.
2.5. Smoobu is entitled to access the user accounts and to make changes within the scope of support.
3. Terms of payment
3.1. Unless otherwise agreed in the contract, the customer shall pay the stated amounts in the invoice within 14 working days after receipt of the invoice to the account specified in the invoice.
3.2. If the customer is in default of payment, Smoobu may, in addition to the assertion of the statutory rights of default, block the services.
4. Customer’s duties to cooperate
The customer is obligated to participate adequately in the performance of the contractual service.
5.1. Smoobu warrants 98% annual minimum availability of the service. A corresponding warranty is however not connected with this.
5.2. Extraordinary maintenance work may also be subject to availability.
5.3. Precondition for claims of the customer in case of disruption of the availability is always that the customer Smoobu immediately the disturbances are indicated and – if possible – documented, so that Smoobu the cause of the respective fault can check.
5.4. Smoobu is not liable for disruption of availability due to force majeure.
5.5. Smoobu is not liable for any disruption to the availability caused by the customer, the access provider, the telecommunication service provider or the mobile telephone provider of the customer or other third parties attributable to the sphere of the customer.
5.6. Smoobu is not liable for any disturbances in the connections to booking channels caused by changes in the booking channels or inadequate response times of the internet pages. In these cases, the software displays an error message and manual intervention by the customer is necessary, e.g. a manual synchronisation of Smoobu and the portals.
The contract has a notice period of one month.
7. Rights of use
7.1. Smoobu is entitled to all rights of use, know-how and other proprietary rights in the contractual services. Smoobu grants the customer a non-exclusive, non-transferable right of use limited to the term of this contract to the extent necessary for the agreed use of the services.
7.2. The customer agrees that Smoobu may evaluate, process and exploit its anonymised data. Smoobu evaluates the performance of the booking channels to improve its own performance. The transfer of customer data to third parties or use for advertising purposes is not carried out.
8.1. In the offer or in other documents mentioned dates for the service provision are basically non-binding schedule dates. These deadlines shall only be regarded as binding performance dates if they are expressly designated as such.
8.2. If Smoobu is prevented from adhering to a performance period due to unforeseen circumstances beyond the sphere of influence of Smoobu or its vicarious agents, these deadlines shall be extended accordingly.
9.1. Smoobu shall be liable without limitation, in accordance with the statutory provisions, for damage to the customer caused by wilful or grossly negligent behaviour of Smoobu or its vicarious agents. The same applies to personal injury and damage according to the Product Liability Act.
9.2. In all other respects, the liability of Smoobu for damages claims is limited to the following provisions:
A) For damages caused by slight negligence of Smoobu, the liability is limited to the typically foreseeable damage.
B) The liability for the slight negligently caused loss of data by Smoobu is limited to the typical restoration effort which would have been incurred by the customer in case of regular and in the circumstances appropriate data backup.
9.3. The provisions of the preceding paragraphs shall also apply mutatis mutandis to a limitation of the obligation to pay compensation for futile expenses (§ 284 BGB).
9.4. The foregoing limitations of liability shall also apply to Smoobu’s fulfillment allowances.
10. Changes to the general terms and conditions and prices
Smoobu is entitled to make price adjustments and amendments to these General Terms and Conditions in accordance with the following provisions:
10.1. Changes in charges for services to be rendered within the framework of an ongoing contract of Smoobu shall be communicated to the customer in good time in writing prior to the change. The customer may make such a change in accordance with para. 10.3. To contradict
10.2. Amendments to these General Terms and Conditions shall be communicated to the customer in good time in writing prior to the change. The customer may make such a change in accordance with para. 10.3.
10.3. The customer has made his objection in accordance with para. 10.1 and 10.2 against Smoobu in writing and within one month from the date of the notification of Smoobu. If the customer does not object within the deadline, the price adjustment or modification of the GTC shall be deemed approved. If the customer rejects the price adjustment or the change of the GTC, the contract continues unchanged. However, in this case, Smoobu has the right to terminate the contract with a period of one month.
11. Final provisions
11.1. Verbal or written supplementary agreements to this contract have not been made. Amendments or additions to this contract require their written form to be effective.
11.2. Smoobu is entitled to name the customer on its website or in other advertising media as a reference. The legitimate interests of the customer must be taken into account.
11.3. This Agreement shall be governed by the laws of the Federal Republic of Germany with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and Services.
11.4. Jurisdiction is the registered office of Smoobu.
11.5. Should one or more of the agreed provisions be or become invalid, the validity of the remaining provisions shall remain unaffected. In lieu of the ineffective provision, one which is closest to what was intended by the Contracting Parties according to the original meaning and purpose of the ineffective provisions shall be deemed agreed.