Terms of use for Apartmentservice Data Center

Preamble

Welcome to the Apartmentservice Data Center (hereinafter also referred to as "AS Data Center"). Here you can upload, edit and update all content (e. g. rates, images, texts, and other information) for the presentation of your accommodation on the booking platform www.apartmentservice.de. This information relates to an aparthotel, apartments with service or serviced accommodation or to the products and/or services of the respective accommodation.

After conclusion of the advertising and agency contract for serviced apartments or serviced accommodation, the Data Center is offered by Apartmentservice, provided that you have accepted all the terms of use set out below. By accessing and using the tools and services available in the Data Center, you accept the binding nature of the terms of use for the AS Data Center. If you do not accept the terms of use, you are not entitled to use the Apartmentservice Data Center.

1. General remarks and terminology

1.1. These terms of use apply between Apartmentservice, Owner Anett Gregorius-Beckert, Berliner Allee 36, 13088 Berlin, Germany (referred to as "Apartmentservice" in the context of the terms of use) and its contractual partners from the advertising and agency contract, the operators.

1.2. These terms and conditions of use shall become part of the contract between Apartmentservice and the operators in the version valid at the time of conclusion of the contract.

1.3. Terms and conditions of the contractual partners that deviate from these terms of use shall not apply unless Apartmentservice has expressly recognised the deviating or conflicting terms and conditions of the operators. A lack of objection to the operators' terms and conditions does not constitute recognition.

1.4. "You" and "your(s)" refers to the aparthotel, apartments with service or serviced accommodation, the owner or operator, as applicable, the legal entity managing the accommodation on behalf of the owner or acting as the owner's authorised agent. "We", "us" and "our(s)" refers to Apartmentservice.

1.5. The term "content" used in the following shall be understood to mean all materials and information processed within the framework of the AS Data Center, such as photographs, graphics, brand logos, videos, texts, source codes, advertising materials, information about contracting parties or third parties or links to such content.

2. Use of the Apartmentservice Data Center

2.1. A prerequisite for your use of the Apartmentservice Data Center is a valid advertising and agency contract between you and Apartmentservice. In addition, you need the legal authority to act in the Apartmentservice Data Center as a representative of the accommodation or to bind yourself to the terms of use and thereby enter into a binding legal obligation. In accordance with the advertising and agency contract, you will only use the Data Center to fulfil your obligations under the agreement. All information you provide in the AS Data Center must be true, accurate, current and complete.Access to the AS Data Center is enabled by a user name and password; your access data determine which areas of the AS Data Center you can use. You are solely responsible for maintaining the confidentiality of all passwords and for preventing unauthorised third parties from accessing the AS Data Center by misusing your passwords. It is not permitted to use accounts belonging to others to access the AS Data Center. Please notify Apartmentservice immediately if you become aware of any unauthorised access to your account. Further, you are responsible for the acts and omissions of all persons using your AS Data Center user account.

2.2. Operators are not entitled to grant sub-licences for the use of the AS Data Center to third parties.

2.3. Operators may only use the AS Data Center via the input masks, interfaces and software and data access options provided. Operators are not entitled to edit the programming or design of the AS Data Center themselves or through the involvement of third parties other than by way of the options provided by Apartmentservice. Actions which are likely to impair the functionality of the AS Data Center are prohibited. In particular, an excessive load that exceeds the regular intensity and frequency of use to be expected in normal use of the AS Data Center is prohibited (e. g. through software of the operators that permanently generates unnecessary accesses due to technical errors). Apartmentservice reserves the right to restrict the use of the AS Data Center vis-à-vis the operators in the event of a breach, taking into account the intensity of the breach and the contractual interests of the operators to a reasonable extent.

2.4. Operators are prohibited from allowing anyone other than their employees or authorised representatives to access the AS Data Center. Apartmentservice reserves the right to deny you access to the AS Data Center if there is a violation of the terms of use.

3. Unauthorised activities

The content and information at the AS Data Center, and the infrastructure used to provide that content and information, are our property. You agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, transfer, sell, resell or create derivative works from any information, software, products or services from AS Data Center. You may not use, monitor or copy any content or information on AS Data Center using a robot, spider, scraper or other automatic device or manually without our express written permission. You agree not to violate the restrictions in this website's robot exclusion policy or circumvent or undermine any other measures that prevent or restrict access to this website. You must refrain from any action that, in our sole discretion, causes or is likely to cause an unreasonable or disproportionately large load on our infrastructure. You may not deep-link to any portion of the AS Data Center or incorporate any portion of the AS Data Center into any other web site using frames or mirrors or any other means without our prior written consent.

4. Responsibility for use and content

4.1. The operators shall be responsible for their own use of the AS Data Center and shall ensure that the use of the AS Data Center is in accordance with applicable law, does not infringe the rights of third parties (for example, copyrights or trademark rights, trade secrets and personal and data protection rights) and that any mandatory statutory information is complied with. The operators are responsible in particular for their employees and agents to whom the AS Data Center is made available for use and shall inform them of the contractual and legal limits of the permissible use of the AS Data Center.

4.2. Apartmentservice does not adopt as its own the content uploaded, entered, communicated or otherwise made available by the operators within the framework of the AS Data Center.

4.3. Apartmentservice is not obliged to check the content of the operators or the type of use of the content in advance.

5. Content management und usage rights

5.1. Apartmentservice provides the AS Data Center to upload or edit content displayed on the Apartmentservice portal website of the respective accommodation. By uploading name(s), trademarks, images, audio, video, text, terms and conditions or other content ("content") of yourself or your property, you grant Apartmentservice the right to use, reproduce and distribute such content for promotional and merchandising purposes and to market the accommodation's services through the website. You warrant that such use of the content does not or will not infringe any third party rights.

5.2. Apartmentservice is under no obligation to use, publish or distribute any content. If you wish to make changes to your content, such changes will be reviewed by Apartmentservice prior to publication and permitted at its sole discretion.

5.3. We very much look forward to hearing from you. Please be advised that by submitting any suggestions, comments or other feedback in connection with the Apartmentservice Data Center or through the software or content provided by Apartmentservice (collectively, "submissions"), you hereby assign to Apartmentservice all of your rights and title in and to all submissions, even if you have marked such submissions as 'confidential'.

5.4. The rights granted under these terms of use are non-exclusive, irrevocable, free of charge and not restricted in terms of time, law or subject matter and include, in particular, the rights to reproduce, distribute, archive, make available to the public, publish, sub-license and edit in compliance with personal rights.

5.5. You agree to promptly assist Apartmentservice in documenting, optimising and preserving Apartmentservice's rights in the submissions as necessary in Apartmentservice's discretion. In addition, you will ensure that the submissions do not infringe any third party rights. If you do not agree with these terms and conditions, please do not send us any submissions.

6. Warranty

6.1. Users shall notify Apartmentservice without delay of any defects that occur. This includes, in particular, submitting written defect reports to Apartmentservice and providing other data and records suitable for analysing the defect.

6.2. The users are aware that, according to the state of the art, it is not possible to create computer software in such a way that it always works error-free in all applications and combinations. The accessibility of the AS Data Center shall not be deemed impaired if it is not due to defects of the AS Data Center or Apartmentservice is not responsible for the restrictions.

6.3. Restrictions or failures of the AS Data Center and programme data due to circumstances that are not within the sphere of influence and responsibility of Apartmentservice (fault of third parties, disruption of telecommunications lines, interfaces of booking portals, technical disruptions at the operators, force majeure, etc.) do not count as defects. Likewise, processes and consequences do not count as defects insofar as they are based on entries, settings and other actions of the operators themselves when using the AS Data Center.

6.4. Users shall ensure that the technical requirements for the use of the AS Data Center, as communicated by Apartmentservice, are met.

6.5. Liability for defects already present at the time of conclusion of the contract, as long as these were recognised by the contractual partners or if the operator should have recognised these and did not report them within 24 hours in both cases, is excluded.

6.6. If the security of the users or the infrastructure of the AS Data Center is acutely jeopardised (e.g. due to malware or unauthorised access attempts), Apartmentservice may temporarily restrict access to the AS Data Center as well as the scope of its functions as required and taking due account of the interests of the operators.

6.7. Maintenance periods (which include typical maintenance, conversion, update or installation work) do not constitute defects.

6.8. Insofar as Apartmentservice provides the operators with legal information templates, this does not constitute legal advice, but rather samples without any claim to correctness and completeness, which are to be checked individually by the operators.

6.9. Claims for material defects shall become statute-barred after twelve months, unless a defect was fraudulently concealed. Otherwise, claims for poor performance shall become statute-barred within 6 months, subject to mandatory statutory provisions. The commercial inspection and complaint obligations apply.

6.10. Apartmentservice shall not be liable for defects based on the defectiveness of third party products (e. g. open source software) and Apartmentservice or its vicarious agents were not aware of the defect or could not have recognised the defect in the course of due performance of the contract and due care customary in the industry and were not obliged to recognise the defect and have not assumed any guarantee for the third party product and the defect is not based on improper handling of the third party product for which Apartmentservice or its vicarious agents are responsible. In this case, the operator's claims for defects are limited to the assignment of Apartmentservice's claims for defects to the third party. Apartmentservice shall support the operator in asserting its claims to the extent possible and reasonable for it. In the case of individual services, Apartmentservice may refuse subsequent performance until the operator has paid Apartmentservice the agreed remuneration, less a portion corresponding to the economic significance of the defect.

6.11. The above provisions on warranty shall also apply in accordance with the provisions of these terms of use on liability (clause 10).

6.12. The limitations of warranty and liability reflect the sharing of risk between the parties. Apartmentservice provides the AS Data Center and its functions and services to users only with such limitations. The limitations set forth in this section shall remain in effect even in cases where limited remedies specified in this advertising and agency contract fail to achieve their essential purpose.

7. Listing and warranties

7.1. Your average position in the listings ("hit lists") is influenced by many factors, including location, pricing, features, etc.

7.2. Apartmentservice gives no guarantee for concrete successes, sales or other target agreements that have not been expressly agreed. Apartmentservice shall only be liable for warranted characteristics if they have been expressly agreed and for damages due to the lack of warranted characteristics up to the amount that was covered by the purpose of the warranty and that was recognisable to Apartmentservice when the warranty was given.

8. Further development and additional functions

8.1. Prospectively, we may make additional features and services available through the AS Data Center. Such features and services may be subject to additional terms of use.

8.2. The AS Data Center is continuously developed and adapted to the needs of the market and the operators. Apartmentservice therefore reserves the right to make extensions, changes and adjustments to the services and functions of the AS Data Center without this constituting a defect in the AS Data Center, provided that these are reasonable for the user and do not conflict with any ongoing contractual obligations.

8.3. Apartmentservice further reserves the right to change or supplement descriptions, designations and other contents of the AS Data Center. For example, in order to provide customers with additional information.

8.4. Individual instruction of the operators and their employees in the use of the AS Data Center, which goes beyond the documentation and information and aids provided to the operators, shall only be part of Apartmentservice's duty to perform if it has been expressly agreed with the operators (e. g. as workshops, training courses, etc.).

9. Interfaces

9.1. Insofar as Apartmentservice provides interfaces with which the operators can access thirdparty software, Apartmentservice guarantees the functionality of the interfaces in accordance with the availability regulations of these terms of use only insofar as the functionality lies within the sphere of influence and responsibility of Apartmentservice.

9.2. In particular, no warranty can be assumed for a lack of compatibility of the interfaces or accessibility, insofar as the defects lie in the software or its changes by its providers which cannot be influenced by Apartmentservice.

9.3. The same restrictions apply when operators link third-party software to Apartmentservice via their interfaces.

10. Liability

10.1. Apartmentservice shall only be liable under this contract in accordance with the following liability provisions.

10.2. Apartmentservice shall be liable without limitation for damage caused intentionally or by gross negligence by Apartmentservice itself or by legal representatives or senior employees of Apartmentservice as well as for damage caused intentionally by other vicarious agents; for gross negligence by other vicarious agents, liability shall be determined in accordance with the provisions for negligence set out below in section 10.5 of these terms of use.

10.3. Apartmentservice shall be liable without limitation for damage caused intentionally or negligently to life, limb or health by Apartmentservice or its legal representatives or vicarious agents.

10.4. Apartmentservice shall be liable for product liability damages in accordance with the provisions of the Product Liability Act.

10.5. Apartmentservice shall be liable for damages arising from the breach of cardinal obligations by Apartmentservice itself and by Apartmentservice's legal representatives or vicarious agents. Cardinal obligations are the essential obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on the fulfilment of which the operators may rely.

10.6. Unless the liability of Apartmentservice is excluded, liability is limited to compensation for the damage that is foreseeable and typical according to the nature of the transaction in question (hereinafter referred to as "typical damage"). The typical damage is in principle limited to EUR 100, at most the specified amount and if this would be unreasonable, otherwise to the amount of the remuneration for the period in which the breach of duty took place, unless this limitation would also be unreasonable in individual cases from the point of view of equity. This also applies to lost profits and savings. Liability for other remote consequential harm caused by a defect or loss of profit is excluded. Apartmentservice shall only be liable for the loss of data in accordance with the above paragraphs if such loss could not have been avoided by reasonable data backup measures on the part of the operators.

10.7. The contents of external websites to which Apartmentservice refers directly or indirectly are outside our area of responsibility and we do not adopt them as our own. Apartmentservice accepts no responsibility for any content or disadvantages arising from the use of the information accessible in the linked websites.

11. Indemnity

11.1. The operators undertake to indemnify Apartmentservice and its employees against claims by third parties on first demand if these are asserted for reasons for which the operator is responsible. The indemnification includes all costs incurred in the defence against these claims, insofar as these costs are based on measures that Apartmentservice or its employees could reasonably consider necessary at the time they were taken.

11.2. The users are obliged to inform Apartmentservice immediately about possible infringements of rights and to support Apartmentservice in the defence against the aforementioned claims by submitting the necessary declarations and information.

11.3. Statutory claims of Apartmentservice against the operators (in particular claims for removal, injunctive relief, claims for information and damages) shall not be affected by the aforementioned provisions on breach of duty.

11.4. In cases where a violation is material, Apartmentservice is entitled, depending on the degree of misconduct, to terminate further cooperation with users and to block their access to the Apartmentservice Data Center and prohibit re-registration.

12. Software provided via the Apartmentservice Data Center

12.1. All software (including any enhancements made as a result of submissions or other contributions) made available for download by Apartmentservice ("software") shall be deemed to be the copyrighted work of Apartmentservice and/or our respective suppliers. Use of this Software is subject to the terms and conditions of the end user licence agreement (if any) accompanying the software that is included with it ("Licence Agreement"). You may not install or use any software that is accompanied by or contains a License Agreement unless you have first agreed to the terms of the License Agreement. For software provided by Apartmentservice without a License Agreement, we hereby grant you, the user, a limited, personal and non-transferable license to use the software to open or otherwise use the AS Data Center in accordance with these terms and conditions, excluding other uses.

12.2. All software, including but not limited to all HTML code and ActiveX controls contained in the AS Data Center, is the property of Apartmentservice and/or our respective suppliers and protected by copyright laws and international treaties. Copying and distribution of the software is expressly prohibited and violators will be subject to civil and criminal penalties. Violations will be prosecuted to the fullest extent permitted by law.

12.3. Without limiting the foregoing, copying or reproduction of the software to any other server or location for the purpose of further reproduction or distribution is expressly prohibited, and warranties for the software, if any, are subject solely to the terms of the License Agreement.

13. Amendment to the terms of use

13.1. Apartmentservice reserves the right to change the terms of use at any time with effect for the future. The change of essential regulations, which influence the contractual balance of the operators to Apartmentservice, will only take place if there are reasonable reasons for the operators.

13.2. In the event of changes to the terms of use, Apartmentservice shall notify the operators of the amended terms of use at least in text form so that the operators have at least fourteen days before implementation to object to the changes. If the operators do not object to the amended terms within this period, they shall be deemed to have accepted them. Users will be informed of their right to object and its consequences. Alternatively, users may agree to the change, e.g. by obtaining consent before using the Apartmentservice Data Center or by expressly stating that their continued use of the AS Data Center constitutes consent to the changes.

14. Data protection and accountability

Each contracting party shall ensure that the data processing taking place in its business operations complies with the applicable data protection requirements and shall support the other contracting party to the agreed, legally defined and otherwise reasonable extent in the fulfilment of the data protection obligations arising in connection with the use of the Apartmentservice Data Center by the operator.

15. Confidentiality, property rights and safeguarding of secrets

15.1. The contracting parties undertake to treat all confidential information of which they become aware during the performance of this contract as confidential and to use it only for contractually agreed purposes.

15.2. Confidential information within the meaning of this provision is information, documents, details and data which are designated as such or which by their nature are to be regarded as confidential.

15.3. In particular, the following matters are deemed to be covered by this confidentiality agreement: Client lists, contractual partners and contract internals, sales figures, price lists, pricing and discount agreements, business balance sheets, technical know-how and software developments (in particular with regard to the AS Data Center), creditworthiness, personnel matters, production and development procedures, marketing procedures and planned marketing measures.

15.4. "Reverse engineering", i. e. observing, examining, dismantling or testing the AS Data Center and hardware and software of Apartmentservice, is not permitted without the consent of Apartmentservice.

15.5. The contracting parties undertake to grant access to confidential information only to those employees who are entrusted with the provision of services under this contract. The contracting parties shall not file applications for property rights for confidential information of the respective other contracting party.

15.6. The rights and obligations under this section on confidentiality shall not be affected by any termination of this agreement. Both parties shall, at their option, return confidential information to the other party upon termination of this agreement or destroy it to the extent it has not been properly consumed.

15.7. Both the operators and Apartmentservice may, subject to any express obligations of confidentiality, refer to the use of Apartmentservice by the operators.

16. Ancillary covenant

The contracting parties shall be entitled to conclude contracts of the same or a different kind with competitors of the respective contracting party, provided that this is not opposed by any interests under the law of confidence, the law of data protection and the law on business secrets in particular and the purpose of this contract is not jeopardised.

17. Final clauses

17.1. The operator may only transfer claims against Apartmentservice based on this contract to third parties with the consent of Apartmentservice. 17.2. The place of performance and exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship is the registered office of Apartmentservice (Berlin), provided that the operator is a merchant, a legal entity under public law or a special fund under public law or has no place of jurisdiction in Germany. Nevertheless, Apartmentservice is also entitled to take legal action at the operator's place of business. The law of the Federal Republic of Germany shall apply.

17.3. Our compliance with the terms of use is subject to applicable laws and legal process. Nothing in these terms of use limits our right to comply with or satisfy any law or legal process or requirement relating to your use of the AS Data Centre or the information provided to us or by us in relation to such use.

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17.4. If any part of these terms of use is held to be invalid, illegal or unenforceable under applicable law, the validity, legality and enforceability of the remaining provisions will not be affected. If at any time we do not enforce, or do not immediately enforce, any provision of these terms of use, this will not mean that we waive any future enforcement of that or any other provision.

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17.5. The terms and conditions from the advertising and agency contract remain unaffected by these terms of use; they constitute a supplement.

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17.6. Any rights not expressly granted in this agreement are reserved.

Effective: 5th October 2022
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