These General Terms and Conditions ("GTC") shall apply to all business relations between Peakwork AG, Rheinallee 9, 40549 Düsseldorf, Germany ("Peakwork") and the Customer, unless otherwise expressly agreed in writing between Peakwork and the Customer. The version of the GTC valid at the time of the conclusion of the contract shall be authoritative. Peakwork does not accept any deviating terms and conditions of the Customer. This also applies if Peakwork does not expressly object to their inclusion.
1.1 Peakwork provides the Customer with the software Peakwork SET ("Software"). This software offers travel agents the possibility of compiling tailor-made portfolios on the basis of so-called sets, which are designed to meet the travel wishes of individually defined target groups. In this way, recurring wishes and requirements for the dream holiday can be addressed and served in detail. The corresponding user manual can be viewed and downloaded at any time via the Help Centre.
1.2 Access to the software is web-based for the customer. Login takes place via the website www.peakwork-set.de. Customer is entitled to use the Software depending on the subscription model. The following subscription models are offered by Peakwork:
(User = one-time login data. It is therefore not permitted and not possible to log in at several workstations or devices with the same login data).
1.3 The costs for the respective models depend on the current price list published by Peakwork.
1.4 The Customer agrees that the use of the Software is only possible with an existing internet connection. Peakwork owes only the availability of its own systems. Peakwork's responsibility for data transmission ends at the point of transfer to the router of its own access provider.
1.5 Peakwork points out that the data in the Peakwork networks does not originate from Peakwork itself, but from the connected tour operators, travel agents or other tourist service providers or other third parties. Peakwork is therefore not responsible for the correctness or completeness of the content or the usability of the retrieved data, but is only responsible for the accessibility of the software and the retrievability of the data stored in the Peakwork Networks during the operating hours. Notwithstanding the foregoing, Peakwork shall, upon becoming aware of any defective data, remedy such defect as quickly as possible within the scope of technical possibilities and technical reasonableness. To this end, the Customer shall inform Peakwork of such errors.
1.6 Peakwork is entitled to modify the Software at any time without prior notice by means of extensions, improvements or limitations, provided that this does not constitute a reduction of the contractual services.
2.1 The customer is obliged to
· to conclude the necessary agency agreements with the providers as a prerequisite for the activation of their systems;
· to conclude licence agreements for the bookability of the offers retrievable via the software in a supplier system (e.g. Amadeus Selling Platform Connect, My Jack, Paxlounge);
· to conclude a licence with a content provider (so-called GIATA licence) for the use of the image and text descriptions about destinations, accommodation, hotels, insofar as he uses image and text descriptions of the corresponding content provider within the scope of the use of the software. The customer agrees that the operation of the software without concluding the licence of a content provider is only possible to a limited extent, as the corresponding information is not displayed.
2.2 In the event that the Customer fails to comply with any of his/her obligations under Section 2.1, Peakwork is entitled to immediately block and/or prohibit the Customer from using the Software. In this case, the blocking does not release the Customer from his obligation to pay the agreed fee. If the Customer is unable to duly fulfil his obligations under 2.1 again within 4 weeks of the blocking, Peakwork may terminate this contract extraordinarily. In this case, the Customer is obligated to pay the fees which would have accrued until the next possible ordinary termination date.
2.3 In order to access the Software, the Customer must ensure that he/she has his/her own Internet access and that the applicable system requirements are met. These can be viewed and accessed at any time in the Peakwork SET Help Centre at https://peakwork.com/de/set/. In particular, the Customer shall always use the current version of his Internet Explorer (Apple Safari; Mozilla Firefox; Google Chrome; Microsoft Edge), a desktop PC, an Internet bandwidth of at least 6Mb/s and a monitor with a screen resolution of at least 1680x1050.
2.4 The Customer is responsible for maintaining the confidentiality of his login details that enable him to access the Software. He undertakes to store the login data in such a way that unauthorised third parties do not have access to this data, in order to exclude in this way an abuse of the access by unauthorised third parties.
3.1 Peakwork hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right to use the Software during the term of the Agreement, solely for its business purposes existing at the time of the conclusion of the Agreement.
3.2 The customer is not entitled to modify the software or to combine it with other programs. Mandatory copyright claims of the customer remain unaffected.
4.1 The Customer shall pay the agreed remuneration for the services rendered by Peakwork. The amount of the fee for the software is determined by the current fee stated on the website (www.peakwork.com) at the time in question.
4.2 If the Customer chooses a monthly subscription model, the invoice will be issued at the beginning of each month. If the customer chooses an annual subscription model, billing shall take place at the beginning of each year. In the case of a 36-month subscription model, Peakwork is also entitled to invoice the fee for the entire fixed contract period at the beginning of the contractual relationship for the entire contract period.
4.3 All fees are due in full and without deduction 14 days after invoicing and are subject to the applicable statutory value added tax.
5.1 Peakwork is entitled to temporarily block the Customer's access to the Software if Peakwork detects the effects of malfunctions of hardware, networks or third-party software of the Customer ("Customer's IT") and if these are likely to cause malfunctions of the Software or of Peakwork systems. Peakwork shall inform the Customer thereof without delay. As soon as the Customer has remedied the malfunction, the Customer shall inform Peakwork. Peakwork will lift the block again after successful verification that the malfunction has been rectified. Should the malfunction continue to occur, the parties shall consult together on the further course of action.
5.2 The Customer undertakes to refrain from any improper use of the Software. Such improper use shall be deemed to exist in particular if
· third party software is used for the automatic processing of data from the Peakwork network without the prior written consent of Peakwork,
· unauthorised data from the software is passed on to third parties.
5.3 If the Customer passes on his access rights to a third party user (a user without his own login data, irrespective of whether this user is within or outside the Customer's organisation) without the prior consent of Peakwork, the Customer shall forfeit a contractual penalty of € 1,000 for each case of infringement. Peakwork reserves the right to assert claims for damages in excess thereof.
6.1 Subject to deviating operating times of individual providers, the Software is generally ready for operation at all times. Excluded from this are planned downtimes, e.g. due to maintenance work, which are generally carried out at night times after announcement and may last a maximum of 24 hours.
6.2 Peakwork guarantees an availability of the Software of 98% per quarter for the assessment of the time of availability, however, shall not be taken into account:
· Reasonable period of time for troubleshooting;
· Planned downtimes of the software, notified to the Customer, during which maintenance work, changes are made to the data processing equipment or its software;
· Periods during which the Customer's hardware is disrupted for reasons for which Peakwork is not responsible;
· disruptions in the availability of individual services caused by the fact that the Provider's data processing equipment does not deliver the data required by Peakwork;
· disruptions caused by errors in the data transmission network or the data transmission company.
6.3 Peakwork shall be allowed a reasonable time to rectify the fault. Peakwork will, where possible, give notice via its own website as to the nature and extent of the fault.
6.4 If the availability guaranteed in Clause 6.2 is not met per calendar month, the Customer is entitled to a reduction of the fee for the month in question in proportion to the actual availability. This reduction shall take the form of a credit note which can be offset in the following billing.
6.5 For questions arising in connection with the use of the subject matter of the contract in the event of malfunctions, the help centre for Peakwork SET is available to the Customer during the following service hours: Monday to Friday from 09:00-17:00. The availability of the Help Centre does not include public holidays in the state of North Rhine-Westphalia (all public holidays in the Federal Republic of Germany, plus Corpus Christi and All Saints' Day).
7.1 Should the Customer discover any defects in the Software or in the documentation / user manual, the Customer shall notify Peakwork thereof in writing without delay.
7.2 Peakwork is obligated to remedy the notified defects in the Software and in the documentation / user manual within a reasonable period of time. Within the scope of the rectification of defects, Peakwork has the right to choose between rectification and replacement. Peakwork shall bear the costs of the rectification of defects.
7.3 The Customer shall provide Peakwork with the access to the Software and to the documentation / user manual required for the purpose of remedying the defect.
7.4 The Customer is not entitled to claim a reduction by independently deducting the amount of the reduction from the running costs, depending on the subscription model. The customer's claim under the law of enrichment to reclaim the part of the fee paid in excess due to a justified reduction shall remain unaffected by this.
7.5 In the event of failure of the rectification of defects owed according to 7.2, the customer shall be entitled to extraordinary termination of the contract pursuant to Section 543 para. 2 sentence 1 no. 1 BGB. Failure to remedy the defect shall be deemed to have occurred in particular if the remedy of the defect is impossible for Peakwork, if Peakwork refuses to remedy the defect or if the remedy of the defect by Peakwork is unreasonable for the Customer for other reasons.
8.1 Peakwork shall be liable without limitation:
8.2 In all other respects, any liability on the part of Peakwork is excluded. In particular, Peakwork shall not be liable for defects already existing at the time of the conclusion of the contract, unless a case of 8.1 is given.
8.3 The above liability rules shall apply accordingly to the conduct of and claims against Peakwork's employees, legal representatives and vicarious agents.
8.4 Peakwork warrants to the Customer that the Software does not infringe any third party rights ("Infringement of Property Rights"). Peakwork shall indemnify the Customer against all claims of third parties on account of infringements of property rights for which Peakwork is responsible in connection with the contractual use of the Software upon first request and shall also bear the reasonable costs of a legal defence for the Customer. The Customer shall inform Peakwork without delay of any claims asserted by third parties; the Customer is not entitled to actually or legally accept such claims unless Peakwork has previously agreed to this in writing. The right to indemnification under this 8.4 shall lapse if the Customer fails to inform Peakwork without delay of the assertion of claims by third parties and provided that there is no case of unlimited liability under 8.1.
9.1 The contract has the agreed term of 6, 12 or 36 months, depending on the model selected, in accordance with clause 1.2. The contract can be terminated with a notice period of 1 month to the end of the fixed term, irrespective of the model selected. If the contract is not terminated, it is automatically extended by the respective duration of the initial contract term and can then be terminated with a notice period of 1 month to the end of the respective term. The termination must be in writing.
9.2 Irrespective of this, the customer has 30 days from the conclusion of the contract to test the software. If, at the end of these 30 days, the Customer decides not to adhere to the contract, the Customer must notify Peakwork in writing no later than the 30th day after the conclusion of the contract that he/she wishes to terminate the contract at the end of the trial period.
9.3 The right to terminate the contract without notice for good cause remains unaffected. Peakwork may terminate the contract extraordinarily in the following cases in particular:
10.1 If any provision of this Agreement or any provision subsequently incorporated herein is or becomes void or unenforceable in whole or in part, or if any loophole is found, the validity of the remaining provisions shall not be affected thereby (preservation). It is the express intention of the parties hereby to maintain the validity of the remaining provisions under all circumstances and thus to waive § 139 BGB altogether. In place of the void or unenforceable provision or in order to fill the gap, that valid and enforceable provision shall be deemed to have been determined with retroactive effect which legally and economically comes closest to what the parties intended or would have intended according to the meaning and purpose of this agreement if they had considered this point when concluding this agreement or If the invalidity of a provision is based on a measure of performance or time (period or date) specified therein, the provision shall be deemed to be agreed with a legally permissible measure that comes closest to the original measure (replacement fiction). If the fiction of replacement is not possible, a provision or regulation in accordance with the content of the preceding sentence shall be made in place of the void or unenforceable provision or to close the loophole (obligation to replace). If the invalidity or loophole relates to a provision requiring notarisation, the provision or regulation shall be agreed in notarised form.
10.2 Amendments and supplements to this Agreement, including this 10.2, must be in writing, unless otherwise provided.
10.3 The Parties may not assign this Agreement or any rights or obligations under this Agreement to any third party without the prior written consent of the other Party.
10.4 There are no oral or written ancillary agreements to this Agreement.
10.5 The exclusive place of jurisdiction for all disputes arising out of or in connection with this Agreement shall be Peakwork's registered office. Peakwork remains entitled to bring an action at the general place of jurisdiction of the Customer.
10.6 With respect to all legal relationships arising from this contractual relationship, the parties agree that the laws of the Federal Republic of Germany shall apply to the exclusion of its conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN Sales Convention).