Please note that this English translation of the German original Nutzungsvereinbarung is a courtesy translation only. The German version shall be binding.
WITH YOUR REGISTRATION THROUGH OUR WEBSITES "BEDS24.COM" OR "BEDS24.DE" A CONTRACT IS ESTABLISHED FOR THE USE OF OUR SOFTWARE AS A SERVICE "Beds24" TO WHICH THE FOLLOWING PROVISIONS RELATE.
1.1 The subject of this contract is the provision of the software as a service application Beds24 (hereinafter: "Beds24") for use exclusively via Internet access. The customer may use Beds24 for a limited period of time for their own purposes, in particular to process their own data and store this data in the system area provided.
1.2 The customer does not receive any further rights, in particular to Beds24, associated software applications or the operating software. The customer’s access to the Internet is not part of the contractual relationship. The customer is solely responsible for the functioning of their computer systems and Internet access.
1.3 The services offered by Beds24 are aimed exclusively at commercial customers. The use of Beds24 by consumers for private purposes is not permitted.
Contracting parties are MPK Systems LTD (hereinafter referred to as "MPK Systems", "our "or "we") Davoser Str. 1g, D-14199 Berlin, Managing Director: Mark Kinchin and the Customer (hereinafter referred to as "Customer", "you" or "your").
2.2 MPK Systems transmits to the customer the access data required for the software use for identification and authentication. Any user who logs on to the "Beds24" website using his or her credentials is deemed to have the authority to provide and accept contractually related statements to and from MPK Systems unless expressly limited in this respect by the Control Panel.
3.1 Beds24 is a booking system for tourist accommodation. Bookings enterd into Beds24, bookings received via the customer’s website or via third-party booking portals can be administrated and related data processing processes can be handled. The use of Beds24 is carried out by the customer exclusively via an internet browser or API interface.
3.2 MPK Systems guarantees the availability of 99% of the annual average of services provided under this agreement. Availability in this sense is the contractually agreed use of the contractual services excluding agreed maintenance periods. If the availability is lower than the annual average, MPK Systems reimburses the customer for the pro rata usage fee for the period in which the service offer was not accessible to the customer. Further reimbursement, e.g. for additional services does not take place.
3.3 The contractual services to be provided by MPK Systems, in particular the functional scope of the software provided for use, are set out in the service description deposited on the website "www.Beds24.com" or "www.Beds24.de". MPK Systems is entitled to change and adapt the content of its services, including the software provided, in particular for technological development. MPK Systems will notify the customer, no later than one month prior to the change, of intended restriction of essential functions of Beds24 if the functional limitations are caused by MPK Systems. In this case, the customer is entitled to a special right of termination with a notice period of two weeks to the change date.
3.4 The customer is not entitled to use Beds24 beyond the permitted use in accordance with this contract. In particular, the customer is not permitted to reproduce, lease or lend Beds24 or parts of it without the permission of MPK Systems, or to use the software for competitive analysis or benchmarking purposes.
3.5 In case of misuse of the system, suspicion of illegal activities or use that leads to overloading of the server, MPK Systems has the right to immediately exclude the person responsible from using the service and/or to terminate the contractual relationship after providing warning.
4.1 The customer is obliged to promptly monitor the bookings processed by Beds24 and to inform MPK Systems immediately of possible malfunctions.
4.2 The customer is obliged to keep access data such as passwords and user names securely and not accessible to unauthorized persons. He is also required to use secure passwords and to maintain up to date anti-virus protection against spam, phishing, and other unauthorized access to the customer’s account.
4.3 When describing, limiting, ascertaining and reporting faults, the customer must follow the instructions given by MPK Systems and where necessary, use the communication format specified by MPK Systems. The customer must communicate fault messages and questions to their best endeavours and using competent staff.
5.1 Time-based fees for the use of Beds24 are payable monthly before the first day of the following month. The amount to be paid is calculated from the monthly fee for rooms and properties created in Beds24 plus activated extras and channel manager links. Insofar as monthly fees are shown in our price list, these are calculated on a daily basis for each actual chargable item divided by the number of days in the billing month. On the first day of the following month, the sum of the daily charges are deducted from the customers account.
5.2 The prices quoted by us are net excluding the applicable VAT rate, as far as value added tax is incurred.
5.3 Usage related fees, for example for SMS Booking notifications or fees for online payment transactions and related expenses are due for payment immediately and debited to the customer’s account on the same day they occur.
5.4 All costs incurred and the current balance of the customer account can be viewed in the Beds24 Control Panel. Customer accounts must always have a positive balance. If the Customer account has a negative balance, MPK Systems will block all functions until the balance due is paid.
5.5. If the customer requests reimbursement of a credit from their customer account, the fee for each associated payment transaction is €25.00 plus any bank or other transaction costs charged from third parties to MPK-Systems. This does not apply if MPK Systems has entered into the contractual relationship according to Item 7.4 or the customer terminates the contract according to Item 7.5 terminated or there was a reason that would have entitled the customer thereafter to the termination.
Every customer can use Beds24 free of charge for fourteen days before starting the paid service. So that services which are charged per use, such as booking confirmations via SMS can be tested, the user account has a credit amount at the beginning of the trial period that can not be paid out in cash. If the credit balance is used up, such services can not be used without making a deposit into the customer account. The free trial ends after 14 days without a separate message.
7.1 The contractual relationship begins with the customer’s registration via the websites "beds24.de" or "beds24.com".
7.2 The contract will run for a limited period of time. The first contract period is at least two weeks (trial period) and ends on the first day of the following calendar month, without any need for notice of cancellation. If the customer has made a deposit into their customer account and the customer account shows a positive balance on the last day of the contract period, the contract is extended by one month at a time.
7.3 The customer can terminate the contract at any time to the end of the month. The customer can solely terminate the contract via the "Cancel Account" function in the Beds24 scontrol panel.
7.4 MPK Systems may object to the renewal of the contract with a notice period of three months, so that the contract ends on the date stated in the announcement.
7.5 The right of the contracting parties to terminate the contract for good cause remains unaffected. An important reason is when a contractor grossly violates the obligations set out in this contract, and in particular when insolvency proceedings are opened against the assets of the other contracting party or the other contracting party becomes insolvent.
7.5.1 For the customer, one important reason may be a significant underperformance of the agreed availability of the software; However, this is usually only a permanent fall below the agreed availability by more than 10%.
8.1 The customer must notify MPK Systems of any defects in the software provided, including its documentation and other documents. MPK Systems will repair reported defects in the short term. The same applies to other disruptions that hinder the possibility of using software.
8.2 The customer may not enforce a reduction in the agreed fee. Other claims remain unaffected.
8.3 MPK Systems is also liable for damages incurred by the customer in the context of their use of Beds24, unlimited for intentional and gross negligence.
8.4 For simple negligence, MPK Systems shall only be liable, except in the case of injury to life, body or health, if essential contractual obligations (cardinal obligations) are violated. The liability is limited to the contractually typical and foreseeable damage, however, up to a maximum of 12 times the average monthly fee that the customer paid to MPK Systems until the damage occurred or should have paid for undisturbed software use.
8.5 The liability for indirect and unpredictable damages, loss of production and use, lost profits, missed savings and financial losses due to third-party claims, is excluded in the case of at most simple negligence, except in case of injury to life, limb or health.
8.6 Further liability is excluded, regardless of the legal nature of the asserted claim. However, the above limitations or exclusions of liability do not apply to legally binding no-fault liability (eg in accordance with the German Product Liability Act) or liability arising from a no-fault guarantee.
8.7 Liability for loss of data is limited to the typical recovery effort that would have been incurred in the case of regular and risk-adequate backup copies.
8.8 As far as the liability according to Items 8.2 and 8.3 is excluded or limited, this also applies to the personal liability of the employees, representatives, organs and vicarious agents of MPK Systems.
9.1 MPK Systems guarantees the data protection security of the data transmitted to it by the customer and observes the legal regulations for data protection.
9.3 Insofar as MPK Systems processes personal data on behalf of the Customer as part of the provision of Beds24, the Contract for commissioned processing of personal data, which forms part of this Agreement, shall apply.
9.4. If the contract concluded between MPK Systems and the customer over the use of Beds24 ends after the free trial period without the customer having made any payments, MPK Systems will delete the data transmitted for processing by the customer 2 Months after the end of the contract (section 7.2). In all other cases of contract termination is the deletion 3 Months after the termination of the contract. A prior notification of the customer does not occur.
MPK Systems shall be entitled to amend or supplement the terms of this agreement if changed legal, regulatory or technical conditions have led to a more than insignificant disruption of the relationship between performance and consideration or to a gap in the contract or if a supplement is due to the introduction new features of Beds24 is required and the change taking into account the interests of the customer is reasonable. MPK Systems will announce the intended changes to the terms of the contract at the latest three weeks before the planned entry into force by notifying the contents of the amended regulations by e-mail to the e-mail address stored in the system. The consent to the announced change shall be deemed given if the customer does not object within 3 weeks after receipt of the notice of change in writing. MPK Systems will again point this out separately in the change notification. If the customer objects to a change in the terms of the contract, the contractual relationship with the previous conditions will continue. However, MPK Systems reserves the right to terminate the contract at the earliest opportunity in this case. Irrespective of this, changes and / or additions to the terms and conditions of the contract also become part of the contract if the customer continues to use offers after the announcement and entry into force of the change, e.g. commissioned further services and / or logs on our website, or the customer otherwise agrees to the change.
Insofar as the customer uses their own general terms and conditions, the contract is also concluded without explicit agreement on the inclusion of general terms and conditions. As far as the different general terms and conditions agree, they are considered to be agreed. The contradictory individual regulations are replaced by the provisions of dispositive law. The same applies in the event that the terms and conditions of the customer include provisions that are not included in these terms and conditions.
If any provision of this Agreement should be ineffective or unenforceable, or in the future ineffective or unenforceable, the remaining provisions of this contract shall not be affected. Instead of the ineffective or unenforceable provision, the parties undertake to agree on an effective provision that comes as close as possible to the meaning and purpose of the invalid or unenforceable provision, both legally and economically. The same applies to the completion of gaps in this contract.
Only the laws of the Federal Republic of Germany apply. Jurisdiction is Berlin / Germany.
Effective date: 20 May 2018