General terms and conditions of the DiBooq desktop app

the
Dibooq GmbH
Heinrich-Mann-Allee 3b
14473 Potsdam
Germany

General Terms and Conditions of the DiBooq Desktop App

(Status: 01/2024)

Preamble

These General Terms and Conditions of the DiBooq Desktop App (“GTC”) apply to the services of Dibooq GmbH, Heinrich-Mann-Allee 3b, 14473 Potsdam, Germany (also referred to as “we” or “DiBooq”), which are provided to customers (hereinafter referred to as “customer” or “you”).

With our services and our General Terms and Conditions we exclusively address entrepreneurs in the sense of § 14 BGB (German Civil Code).

Your General Terms and Conditions shall not apply, irrespective of whether you expressly refer to them or we do not expressly object to them. Your General Terms and Conditions shall only become part of this contract if we expressly agree to them. Individual agreements between us in offers, order confirmations, declarations of acceptance etc. take precedence over the provisions of these General Terms and Conditions.

 

§ 1 Subject matter of the contract

The following services are part of the contract:

Software/SaaS services

(1) The DiBooq Desktop App is a SaaS (Software as a Service) solution (hereinafter also referred to as “Software”).

(2) An overview of the entire service portfolio of the software results from the service description, which can be called up in its respective version on our website https://www.dibooq.com/en/legal/discription_of_services/. If necessary, we will also provide you with the interface to the software.

(3) Due to the flexible software architecture and a flexible licence model, the software can be individually adapted to your needs and your respective IT infrastructure.

(4) We provide you with our software services within the framework of a “subscription model”, i.e. legally as rented goods, for the duration of our contractual relationship.

(5) The concrete service components which we provide in the contractual relationship with you result from the service description, your order or the order/order confirmation.

Portfolio Boost

(1) We offer “Portfolio Boost” for property manager. By listing your property manager in the DiBooq mobile app for owners, you have the opportunity to acquire new vacation rentals and thus significantly expand your portfolio. For this purpose, DiBooq vacation rental owners are shown the participating property managers in the respective regions in a selection list so that the interested owner (with their vacation rental) can contact selected property managers via us (property suggestion).

(2) The commissioning of the property manager to market the vacation accommodation is not the subject of Portfolio Boost, but is agreed directly between the property manager and the owner.

(3) The position of a listing (ranking) of your property depends on the amount of your bid in relation to all other bids in the relevant region (highest bidding property managers receive the best ranking as the top listing position).

(4) The minimum price for participation in the ranking is EUR 100.00 per lead (plus any applicable VAT). However, you can also submit a higher bid to us for a better ranking. A lead is created when the property manager accepts the real estate proposal within the DiBooq application or does not respond within 72 hours, i.e. neither accepts nor rejects it. Once the real estate proposal has been accepted, the property manager receives access to the owner’s contact details. The lead remuneration is settled and processed in accordance with 2 Remuneration for our services.

(5) You can cancel Portfolio-Boot on the 20th of a month at the end of the month (e.g. with regard to the price/lead).

(6) As an alternative to the regulation according to paragraphs 4 and 5, we offer you package solutions: Should you opt for one of our continuously discounted packages with 20, 50, 100, 250 or 500 property suggestions, the respective package will automatically renew itself by the booked number of property suggestions when the package contingent provided has been used up to 75%, i.e. the property suggestions contained in the package have been accepted by you or have neither been accepted nor rejected within 72 hours.

(7) You can cancel booked package quotas as long as no more than 75% of your package volume has been used up or – irrespective of package consumption – if we have not submitted a contact proposal to you for a period of 12 months.

Web & Server Hosting

(1) If expressly contractually agreed, we also offer you web and server hosting services in relation to our SaaS services. Our web and server hosting services include in particular the provision of an IT environment for our software. This IT environment includes the necessary server services, data lines as a connection between the server locations and your workstations as well as the services required to operate the software. The IT environment is created within one or more servers. These servers are located locally with us or in rented data centres. They may also consist of virtual private servers or be rented from professional hosting providers.

(2) Within the scope of our web and server hosting services, we provide a sufficiently large storage space for the storage of object and occupancy data, which dynamically adapts to the respective user requirements.

(3) We will continue to ensure that your stored data can be accessed via the Internet. You remain the sole owner of the data and can demand its return at any time. However, you are not entitled to hand over your storage space to a third party for use. Upon termination of our contract or upon termination of our web and server hosting services, we will return to you, upon request, all data stored on the storage space allocated to you by sending it via a data network. However, you have no right to receive the software suitable for the use of the data.

 

Support & Monitoring Services

(1) Furthermore, we offer, if expressly agreed, supplementary support services with regard to our software. These support services consist in particular of

– information about major updates (upgrades).

(2) In addition, we guarantee direct availability for urgent support in support cases which are not covered by our other service components and which are usually remunerated separately. Such a support case may exist if you have questions in connection with the use of our software.

(3) You can reach us as follows:

– telephone support Monday to Friday from 10:00 – 18:00 at +49 331 769 975 30 or

– e-mail support around the clock with a response Monday to Friday from 10:00 – 18:00 at hello@dibooq.com.

 

§ 2 Remuneration for our services

(1) You can generally purchase our services according to the conditions of the selected price model, which can be viewed at https://www.dibooq.com/en/legal/discription_of_services/, or according to the conditions of the individual offer made for you.

(2) All remuneration is subject to VAT at the statutory rate at the time and place of performance of the service.

(3) The remuneration for the services to be rendered by us shall be paid in advance for the billing period chosen by you. If our remuneration is calculated on a commission basis, invoices are generally issued monthly in arrears.

(4) Our invoices shall become due upon receipt by you and shall be paid without deductions within fourteen calendar days.

(5) The processing of the payment methods credit card payment, GIROPAY, SOFORTÜBERweisung and SEPA LASTSCHRIFT is carried out in cooperation with Stripe Payments Europe, Ltd., c/o A&l Goodbody, Ifsc, North Wall Quay, Dublin 1, Ireland (hereinafter: “Stripe”), subject to the Stripe terms of use, which can be viewed at https://stripe.com/de/terms, to which Dibooq assigns its payment claim. Stripe collects the invoice amount from the customer’s specified credit card account or bank account. In the event of assignment, payment can only be made to Stripe with debt-discharging effect. The credit card will be debited immediately after sending the customer’s order in the online shop or after two days by SEPA direct debit. Dibooq remains responsible for general customer enquiries, e.g. complaints, revocation declarations and deliveries or credit notes even if the payment method credit card payment, SEPA direct debit, Giropay or SOFOR TRANSFER via Stripe is selected.

 

§ 3 Term of the contract

(1) The contract for the software in its basic function is concluded for an indefinite period. Termination is possible at any time and without notice. The termination can be effected by corresponding termination of the services in your admin area (deletion of the account).

(2) An upgrade of the selected price model or the booking of special features, if offered by us, is possible at any time. The reduction of the number of users or the downgrading of a price model or the cancellation of upgrades and special features are possible with a notice period of one month to the end of the respective selected term. A refund of the costs paid/to be paid for the current period shall not be made.

(3) When the termination of the contract for the software in its basic function becomes effective, the account created in the DiBooq Desktop App will be deleted. You can export the contents processed with our services until the deletion. After this we will delete your account completely. Support services in connection with the termination can be provided by us on request and, if necessary, for a separate fee.

(4) Content that you have exchanged with DiBooq Mobile App as well as with other DiBooq Desktop App users will remain with them even after deletion of your account.

(5) The right to extraordinary termination of this contract for good cause remains unaffected.

 

§ 4 Principles for the provision of our services

(1) With our software and its functions, we merely provide you with a technical basis for the purposes to be depicted (see in particular the description of services at https://www.dibooq.com/en/legal/discription_of_services/. We assume no responsibility for the actions performed with our software or for the contents processed with our software. For all actions carried out by you with our software and processed contents, the agreements and contracts which you have concluded with your customers, partners, employees etc. or the law shall apply exclusively.

(2) The provisions of tenancy law apply to the use of our software. Maintenance measures such as updates, patches, hotfixes are part of our service. Further support is offered upon corresponding agreement. Beyond the maintenance measures, the statutory rental defect warranty law shall apply.

(3) Adjustments, changes and additions to the software as well as measures serving to determine and remedy malfunctions will only lead to a temporary interruption or impairment of accessibility if this is absolutely necessary for technical reasons. Major maintenance work which could lead to a malfunction of the software will generally be carried out outside normal business hours.

(4) The availability of the software under this contract is 97.5% on an annual average including maintenance work. The availability will not be impaired or interrupted for more than two calendar days in succession.

(5) You may not transfer our services to third parties for commercial use.

(6) We are entitled to have our services provided by third parties and subcontractors.

(7) We reserve the right to change, adapt and increase or reduce the functional scope of our services as well as the documents and attachments relating thereto, taking into account your interests, provided that we do not thereby violate our contractually assumed main performance obligations. We will inform you in good time in advance of any significant modifications and settings that change the contractual relationship. You have the right to object to changes. If you do so, we will try to find alternatives together. If these are not found, both parties have the right to terminate this contract extraordinarily.

(8) In the event of force majeure, we are released from our obligation to provide the services for the corresponding period of time, insofar as it is actually not possible for us to provide the services. Force majeure is defined as fire, explosion, flood, war, blockade, embargo, pandemic and industrial action for which we or a subcontractor are not responsible.

(9) You are responsible for the actions of your users and are liable for them as for your own actions.

(10) Links or functionality in our software may take you to third party websites and software that are not operated by us and for which we are not responsible. Such links or functionalities are either clearly marked or recognisable by a change in the address line of the browser or a change in the user interface.

(11) When using our software, it is prohibited:

– infringe third party property rights such as trademarks, copyrights and rights to a name,

– harass other customers and third parties

– to use documents, files, IT systems of third parties and data in connection with our services that contain harmful code or viruses,

– to use mechanisms, software and scripts that go beyond the functionalities and interfaces provided, in particular if this blocks, modifies, copies or overwrites our services, as well as

– interfere with our services by altering data (§ 303a StGB), computer sabotage (§ 303b StGB), falsification of data relevant to evidence (§§ 269, 270 StGB), suppression of data relevant to evidence (§ 274 StGB), computer fraud (§ 263a StGB), spying out data (§ 202a StGB), interception of data (§ 202b StGB) or other criminal offences.

 

§ 5 Your obligations to cooperate for our services

You must provide the following services and cooperate with us free of charge as ancillary services:

– If necessary: Granting of necessary rights of use to third-party software, in particular databases, server operating systems and applications.

– If necessary: Creation of backups of the IT system and other IT components.

– Reports of material defects, defects of title and malfunctions must include a description of the problem (e.g. with screenshots, anonymised log files).

– If necessary: Notification of your applicable guidelines for remote access to your IT system.

– In the case of security-relevant updates, we reserve the right to adapt our services at short notice. Any resulting adjustments to your IT systems must be made by you. If necessary, we will provide you with support.

– Independent and responsible integration of the software (including interface, if applicable) into the customer’s existing IT system.

 

§ 6 General liability

(1) We shall be liable, subject to separate provisions in the contract or in these General Terms and Conditions, in particular in §§ 6 and 7, for direct property damage and financial loss caused by us, our legal representatives, vicarious agents and the subcontractors engaged by us up to EUR 100,000 per damaging event, up to a maximum of EUR 200,000 per year of the contract term, irrespective of the number of damaging events.

(2) In the event of simple negligence, our liability shall be limited to the foreseeable damage typical for the contract. Outside the breach of essential contractual obligations, our liability for compensation for indirect material damage and financial loss, in particular loss of profit, is completely excluded in the case of simple negligence. In the event of force majeure as well as in the event of gratuitous use of our services, our liability is excluded altogether in the event of simple negligence. Material contractual obligations are those whose fulfilment is essential for the proper performance of the contract and whose fulfilment may be relied upon.

(3) We shall be liable to an unlimited extent in the event of injury to life, limb or health as well as in the event of wilful or fraudulent action. The same applies in the event of the written assumption of a guarantee for the quality or durability of a service to be provided by us.

(4) Our liability under the Product Liability Act remains unaffected.

(5) You shall be liable for the actions of your employees, legal representatives, vicarious agents and any other users of our services as for your own actions.

 

§ 7 Warranty for our services

(1) In the event of material defects and defects of title, the statutory provisions shall apply subject to the provisions of this clause. Section 377 of the German Commercial Code (HGB) shall apply. All claims for defects are subject to your immediate notification of defects in accordance with § 377 para. 1 and para. 3 HGB. Your notice of defects must be in writing (electronic form excluded).

 

Material defects

(2) In the event of material defects, you shall first have the right, at our discretion, to free rectification or new delivery (hereinafter referred to as “subsequent performance”). If the defect cannot be remedied after two attempts at subsequent fulfilment, it shall be examined whether your interests can be met by an alternative solution before any termination or withdrawal.

(3) In the case of rent, strict liability for damages for defects present at the time of transfer is excluded under § 536a (1) BGB.

 

Defects of title

(4) Our services are provided free of third party rights. Please inform us immediately in text form if you become aware of third party rights to our services.

(5) At our request, you shall provide us with the defence against claims asserted by third parties, provide us with all information necessary for this purpose, make declarations and grant us powers of attorney. In return, we shall indemnify you against claims for payment and damages on account of the rights of third parties.

(6) If our services are actually encumbered with the rights of third parties, we shall be entitled, at our discretion, to

– remove the rights of third parties or their assertion (e.g. by payment of royalties), or

– to modify our services in such a way that the rights of third parties are no longer infringed.

 

General

(7) Claims for defects shall not apply if you have made changes to the services without our prior consent or if the services are used by you for a purpose not covered by this contract and this action is solely responsible for the occurrence of the defect.

(8) All claims due to defects shall become statute-barred after 12 months, unless they are already limited or excluded in accordance with the aforementioned provisions.

 

§ 8 Your right to use our services

Software use & General

(1) You receive a simple, non-exclusive right to use our services, which is limited in time and unlimited in space for the duration of the contract.

(2) The group companies in your majority ownership are equally entitled to use the software. An independent authorisation to sub-license or otherwise transfer your rights of use is not associated with this. This right of use shall end if the group company no longer meets the requirements of an affiliated company (e.g. within the meaning of Sections 15 et seq. of the German Stock Corporation Act).

(3) You are not entitled to exhibit, publicly reproduce, in particular make available to the public, edit, redesign, translate, decompile or otherwise transform the software. Your rights under Sections 69d (3), 69e UrhG shall remain unaffected.

(4) We are entitled to use our services, including new releases, as well as any other general know-how, experience, methods and procedures developed in connection with the contract elsewhere (provision to third parties, as open source software, etc.).

(5) Unless otherwise agreed, test and demo licences are limited to a term of up to 30 days.

Open Source Software

(6) We grant you such rights to the open source software contained in our services that can be transferred to you in accordance with the licence conditions applicable to us. You are permitted to use our services exclusively within the scope of these licence conditions. We do not assume any warranty or liability for any use beyond this.

 

§ 9 Transfer to third parties

(1) We are entitled to transfer the contract to a legal successor or a group company affiliated with us. We will inform you of this in text form at least two months before the planned transfer.

(2) A transfer of the contract to a third party requires your prior consent. In the event of your objection, the contract will continue unchanged. The objection is deemed to be good cause for extraordinary termination of the contract by us.

 

§ 10 Data protection

(1) In the course of the cooperation, both parties shall gain knowledge of business secrets of the other party or third parties. A trade secret is information that is neither generally known nor readily accessible to the persons who usually handle this type of information, is therefore of economic value and is therefore subject to appropriate confidentiality measures (cf. § 2 GeschGehG). Furthermore, a trade secret is information which is marked as a trade secret, which is protected by industrial property rights or copyright, which is covered by banking secrecy or data protection and for which there is a justified interest in secrecy. A trade secret is not information which is known to the respective other party prior to disclosure, which has become known to the public after disclosure without the involvement of the disclosed party, which the disclosed party has learned through an authorised third party and which the disclosed party has developed itself.

(2) The receiving party, as well as all those who come into contact with trade secrets as intended, are obliged to treat the trade secrets as strictly confidential and only to use them or disclose them to third parties and employees if this is necessary in connection with the business purpose. In all other respects, the receiving party shall protect the trade secrets from third parties.

(3) Objects as well as files or other incorporeal objects on which trade secrets are located shall be deleted or handed over to the disclosing party immediately upon request of the disclosing party or at the latest upon termination of the contractual relationship.

Data protection

Our data protection provisions, which can be viewed at https://www.dibooq.com/en/legal/privacy_policy/, apply to all legal relationships.

 

§ 11 Final Provisions

(1) The assignment of individual claims arising from this contract requires the prior consent of the other party in text form.

(2) The law of the Federal Republic of Germany shall apply exclusively to our entire contractual relationship to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

(3) The place of jurisdiction for all disputes arising from the contractual relationship is the court with subject-matter jurisdiction at our registered office.

(4) Amendments and supplements to this contract must be made in text form to be effective. Amendments to the contract shall become effective if you do not object to a change notified to you in text form within one month of receipt of a notice of amendment and we have informed you in advance of your right to object. If you object to the change, the contract will continue to apply unchanged and we are entitled to extraordinary termination of the contract with one month’s notice to the end of the next calendar month. The text form also applies to an amendment of this form clause. The priority of individual ancillary agreements remains unaffected.

(5) Should one of the provisions of the contract be invalid or should the contract contain a loophole requiring regulation, this shall not affect the validity of the remaining or loophole provisions. In this case, the parties undertake to replace or complete the invalid or incomplete provisions with provisions that come as close as possible in economic terms to the invalid or incomplete provisions.