General Terms &
Version 131221, Last updated: December 13th, 2021
1 Subject Matter
1.1 These General Terms and Conditions of Laya GmbH (“Agreement”) shall apply to all offers, deliveries, support and services with regard to the making available of software through Laya Technologies GmbH, Hansastraße 10, 80686 München, Germany (“Laya”). Deviating and/or supplementary terms and conditions of the customer (“Customer”) shall not apply.
1.1 Laya is a provider of travel package management technology. While such technology connects to certain connectivity providers and travel package traders, Laya will not deliver Customer’s inventory data to connectivity providers and / or act as Customer’s travel agent or other trader. Customer will therefore maintain separate agreements with Laya approved connectivity providers and traders, as set forth in this Agreement.
1.2 This Agreement shall apply to ongoing business relations as well as to all of the parties’ future transactions.
The following capitalized terms shall have the meaning set forth below. Other defined terms (whether capitalized or not) used in this Agreement shall have the meaning set forth elsewhere in this Agreement:
2.1 “Confidential Information” means all information provided by either party identified as being confidential by the disclosing party, including: (i) any trade secrets, (ii) either party’s business or financial information and plans (including but not limited to product plans, product designs, product technology, product costs, product prices, product names, finances, marketing plans, business opportunities, research and development), and (iii) the terms and conditions of this Agreement, as well as information which by its nature or from the circumstances either party might reasonably expect to be confidential. “Confidential Information” will not include information that the receiving party can show: (a) is or becomes generally known or publicly available through no fault of the receiving party; (b) is known by or in the possession of the receiving party prior to its disclosure, as evidenced by business records, and is not subject to restriction; (c) is lawfully obtained from a third party who has the right to make such disclosure; (d) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information; or (e) that is disclosed under the operation of law.
2.2 “Customer Data” means the data uploaded to the Laya Service during Customer’s use.
2.3 “Initial Term” shall have the meaning set forth in Section 4.2 of this Agreement.
2.4 “Laya Service(s)” means an access to a travel package management software service (including certain storage space as required for ordinary use of the services) made available by Laya for use via the internet, as specified in more detail in the respective Offer.
2.5 “Offer” means the Laya order form, as provided by Laya to Customer.
2.6 “Renewal Period(s)” shall have the meaning set forth in Section 4.2 of this Agreement.
2.7 “Service Fees” shall have the meaning set forth in Section 7.1 of this Agreement.
2.8 “Support” shall mean support as defined in Section 6 of this Agreement.
3 Conclusion of Contract
Customer may submit an order to Laya by completing and signing an Offer. Laya reserves the right, in its sole discretion, to put a time limit on any Offer or to cancel an Offer before receipt of a corresponding order by Customer. Once Customer’s order has been confirmed by Laya in writing (with email correspondence constituting written form), but no later than upon delivery, it shall constitute a contract. All contracts will be subject to the terms and conditions of this Agreement, which supersedes and controls any inconsistent terms and conditions in other purchase documents of Customer (unless otherwise specifically agreed in writing by both parties).
4 Making Available of Laya Services
4.1 Subject to the availability set forth in Section 4.3, Laya shall, for the term specified in Section 4.2, make available to Customer Laya Services, as may further be specified in the Offer, through an internet connection on the Server designated by Laya (“Server”). Laya may at any time reasonably amend, modify, update or upgrade the Laya Services. Laya does not owe to Customer the installation or maintenance of an internet connection from Customer’s computer to the exchange node operated and designated by Laya or its contractors. Subject to reasonable prior notice to Customer, Laya or its contractors may change such exchange node at any time.
4.2 The term of Laya Services shall begin on the day on which Laya Services are made accessible to Customer and shall continue for the term set forth in the Offer (“Initial Term”). If the Offer provides for an Initial Term of one month, the term of Laya Services shall automatically renew for additional onemonth term(s), unless either party terminates Laya Services at the end of the then current term by giving 14 days prior written notice to the other party. If the Offer provides for an Initial Term of 12 months or more, the term of Laya Services shall automatically renew for additional twelvemonth term(s), unless either party terminates Laya Services at the end of the then current term by giving 3 months prior written notice to the other party (either renewal period(s) hereinafter “Renewal Period(s)”).
4.3 The Laya Services are available 99.0 % per calendar month except for Scheduled Maintenance. “Scheduled Maintenance” means maintenance which may delay or interrupt Customer’s use of the Laya Services, and the necessity of which is known to Laya in advance of its occurrence. Laya shall schedule Scheduled Maintenance to the extent practicable during periods of nonpeak usage among its customer base.
4.4 The Laya Services technology generates offers for travel inventory based on neutral ranking parameters, such as price, quality and customer ratings. Laya Services do not provide ranking against remuneration or any other benefits to Laya.
4.5 Customer shall use suitable measures to secure the Laya Services, including any respective login data, against access by unauthorized third parties. If Customer obtains attention of an unauthorized access to the Laya Services, Customer shall promptly notify Laya and provide Laya with assistance, as reasonably requested, to stop or remedy such access. In the event Customer cannot satisfactorily resolve any issue of unauthorized access to Laya Services, Laya may, in conjunction with any other remedies it may have under this Agreement or under statutory laws, suspend Customer’s access to the Laya Services until the issue is resolved.
4.6 Customer shall use the Laya Service only in accordance with this Agreement and the applicable statutory provisions. Customer shall in particular comply with criminal, data protection, competition and copyright laws. Customer shall not import damaged or illegal data or misuse the Laya Services in any way. If Customer becomes aware of any violation of this Section 4.6, Customer shall immediately notify Laya and provide Laya with assistance, as reasonably requested, to stop or remedy the violation. In the event that Customer’s use of the Laya Services adversely impacts the Laya Services or the systems or content of any other customer of Laya or third party provider, or may subject Laya or any third party to liability, Laya may, in conjunction with any other remedies it may have under this Agreement or under statutory laws, suspend Customer’s access to the Laya Services until the issue is resolved.
4.7 After termination or expiration of the Laya Services Customer has no access to Customer Data. Customer may within two (2) weeks as of such termination or expiration request Laya to either destroy or return to Customer the Customer Data, except to the extent that statutory laws require Laya to retain certain Customer Data. Such request shall be made in writing (with email constituting written form). If Customer does not make such request, Laya may automatically delete all Customer Data completely and permanently two (2) weeks after termination or expiration of the Laya Services. This Section 4.7 shall not affect any agreement on the deletion or return of personal data made by the parties in a Data Processing Agreement.
5 Laya Service Requirements
5.1 The use of Laya Services requires that Customer delivers to Laya its inventory, including availability and rate, through one or more connectivity providers as specified in the Offer (hereinafter “Connectivity Provider”). To that end Customer shall maintain a separate agreement with the Connectivity Provider(s).
5.2 To enable the purchase by end customers of travel packages generated through Laya Services it is further required that Customer maintains a separate agreement with a tour operator and fulfilment provider, or any other channel partner as further specified in the Offer (hereinafter “Trader”).
5.3 During the term of this Agreement Laya may at any time replace or add a Connectivity Provider and/or Trader upon one (1) month written notice (including notices via email) to Customer. When Customer receives such written notice Customer will conclude an agreement with such other connectivity provider and/or trader, which shall, as of the day set forth in Laya’s written notice, be deemed a Connectivity Provider and/or Trader within the meaning of this Agreement.
6.1 The purchase of Laya Services shall include Support for Laya Services during the term of the Agreement.
6.2 Support shall include email support and may, at the sole discretion of Laya, include telephone support and online (ticket system) support. If Customer reports an error in the processing of the Laya Services, Laya will undertake commercially reasonable efforts to eliminate such error.
6.3 Support does not include user training, import of Customer Data or customisation of the Laya Services.
6.4 Support services are provided Monday to Friday from 9.00 am 5.00 pm CET, except for public holidays in Munich, Germany.
7 Service Fees
7.1 In consideration of the making available of Laya Services (including Support) Customer shall pay to Laya the fees set forth in the Offer (“Service Fees”). All prices are net prices plus statutory value added tax applicable at the time.
7.2 The payment of Service Fees shall be due in advance on the first day of the Initial Term and each subsequent Renewal Period (if any).
7.3 Laya has the right to adjust the amount of Service Fees annually. In the event of an adjustment, Laya shall take into account any cost changes that have occurred in the meantime with respect to wages, salaries, IT services costs, and general costs. Laya shall provide Customer with thirty (30) days written notice (with email constituting written form) in advance of the effective date of any change in Service Fees. In the event that Laya increases Service Fees by more than five per cent (5%) Customer may within fourteen (14) days as of receipt of Laya’s notice terminate the Agreement at the end of the then current term; in case of such termination the Service Fees remain unchanged.
7.4 Any payment shall be paid to the account referred to in the respective invoice.
8 Intellectual Property Rights
8.1 All right, title and interest in Laya Services and any other services or products (together with all patents, trademarks, service marks, trade dress, trade names, logos, copyrights, copyrightable works, goodwill, rights in data and databases, trade secrets, knowhow and other intellectual property rights therein (collectively, “Intellectual Property Rights”)), whether or not patentable, or subject to copyright or trademark or trade secret protection, developed, produced, made available, or delivered by Laya in connection with or pursuant to Laya’s performance under this Agreement are the sole and exclusive property of Laya and its licensors. No title to, ownership of, or rights in services or products are transferred or granted to Customer under this Agreement except for those limited rights expressly granted in this Agreement.
8.2 If Customer becomes aware of breaches of Laya’s or Laya’s licensors rights, Customer will inform Laya thereof without undue delay.
Laya is entitled to engage qualified subcontractors for providing Laya Services including Support hereunder.
10 Limitation of Liability
10.1 With the exception of liability according to Product Liability Law and due to death, physical injury or harm to health, Laya’s liability is limited or excluded as follows.
10.2 In the event of negligence, Laya’s liability is limited to reimbursement of typically foreseeable damages. However, in case of slight negligence (“einfache Fahrlässigkeit”) Laya shall only be held liable, if Laya has breached a duty, the fulfillment of which is necessary to adequately perform this Agreement, and on the fulfillment of which Customer may rely.
10.3 Strict liability, regardless of fault, for defects that already existed upon conclusion of the Agreement is excluded, unless such defect constitutes a breach of a guarantee, or Laya has maliciously concealed the defect.
10.4 The foregoing limitation of liability shall also apply to the personal liability of Laya’s employees, staff, representatives and vicarious agents.
Laya shall exercise the same degree of care (but not less than reasonable care) employed by Laya to prevent the unauthorized use and disclosure of it’s own Confidential Information to prevent the unauthorized use and disclosure of Customer’s Confidential Information. Customer shall keep Confidential Information made available by Laya in strictest confidence and (i) prevent the unauthorized use, dissemination or publication of the Confidential Information, (ii) not divulge Confidential Information to any third party, (iii) not make any use of such Confidential Information except for purposes consistent with Customer’s obligations pursuant to this Agreement; and (v) not reverse engineer any such Confidential Information. Customer shall limit the use of and access to Laya Confidential Information to Customer’s employees or authorized representatives who have: (i) a need to know and have been notified that such information is Confidential Information to be used solely for purposes consistent with Customer’s obligations pursuant to this Agreement; and (ii) entered into binding confidentiality obligations no less protective of Laya than those contained in this Agreement.
12 Data Protection
12.1 Laya and Customer herewith conclude a contract for the third-party processing of personal data. The Data Processing Addendum, which shall form an integral part of this Agreement, is available here: https://www.laya.ai/data-processing-addendum
12.2 Laya may use Customer Data (which may include personal data within the meaning of Art. 4 no.1 GDPR) for the training of artificial intelligence in order to enhance Laya Services. Upon Customer’s written request, Laya shall provide to Customer information related thereto, which Customer may need to know in order to fulfil its contractual or statutory obligations.
13 Independent Contractors
The relationship of Laya and Customer established by this Agreement is that of independent contractors, and nothing in this Agreement shall be construed to:create an agency, partnership, franchise, joint venture, sales representative, employment or any other type of legal association between Laya and Customer;give either party the power to direct and control the daytoday activities of the other;constitute the parties as partners, joint ventures, coowners or otherwise as participants in a joint or common undertaking, orallow either party to create or assume any obligation on behalf of the other for any purpose whatsoever.
14 Miscellaneous Provisions
14.1 Neither this Agreement nor any rights and/or obligations hereunder may be assigned by either party without the other party’s prior written consent, and any such assignment shall be void. Notwithstanding the foregoing, Laya may, without the consent of Customer, assign this Agreement and any of its rights and/or obligations hereunder upon written notice to Customer, to any of its affiliates or to an entity with or into which it is merged or consolidated or to which it sells all or substantially all its capital stock or assets associated with the operations related to this Agreement.
14.2 Laya may amend the terms and conditions of this Agreement upon one (1) month written notice (including notices via email) to Customer. The amendments shall be deemed having been approved by Customer, and apply as of their effective date as set forth in Laya’s written notice, unless Customer has notified Laya in writing of its disapproval within two weeks as of Customer’s receipt of Laya’s written notice. Laya shall expressly draw Customer’s attention to such right of disapproval and to the legal consequences should Customer not notify Laya of its disapproval. In the event of Customer’s written notice of disapproval, this Agreement shall continue without any changes to the previous terms and conditions.
14.3 In the event of a conflict between the provisions of this Agreement and the provisions of the Offer, the terms and conditions of the Offer shall control.
14.4 No amendment or modification to this Agreement will be valid or binding upon the parties unless made in writing and signed by the parties.
14.5 This Agreement is subject to German law with the exception of its conflict of laws rules. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
14.6 The courts of Munich, Germany, shall have sole jurisdiction over all legal disputes arising out of or in connection with this Agreement. Laya, however, shall remain entitled to commence court proceedings at any other statutory place of jurisdiction.
14.7 If any provision of this Agreement is or will be found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force. Notwithstanding the above, the parties shall replace such invalid or unenforceable provision by a valid provision, which reflects, to the maximum extent possible, the original intent of the parties.