1. Definitions and interpretation

1) Definitions. In these Terms and Conditions for Partners, unless the context requires otherwise, the following words and expressions shall have the following meanings:

“Affiliate” means, with respect to any entity, any other entity directly or indirectly controlling, controlled by, or under direct or indirect common control with such entity. An entity shall be deemed to control another entity if such entity possesses, directly or indirectly, the power to (i) vote 50% or more of the securities having ordinary voting power for the election of directors of such other entity; or (ii) direct or cause the direction of the management or policies of such other entity, whether through the ownership of voting securities, by contract or otherwise

“Agency” means services provided by Noovy to Partner using Noovy Platform, inter alia, in order to facilitate booking process of accommodation or any other Service to Guest and specified in more detail in the Agreement

“Agreement” means Cooperation Agreement concluded between Noovy and Partner including these General Terms and Conditions for Partners, the Data Processing and Transfer Policy for Partners and, if applicable, further exhibits.

“Chargeback” means a transaction charge which has been cancelled by, or on behalf of the customer, meaning that the charge is not recognised.

“Data Processing and Transfer Policy for Partners” means data processing and transfer policy of Noovy for Partners which form an integral part of the Agreement and which are available via NOOVY Account and to which the Partner agreed under the Agreement

“Documentation” means user manual to Software Products made available to Partners by Noovy

“Fees” means fees payable for Provided Service by Guests (as determined by respective Partner) and available at Noovy Platform, including any Transaction Fee to be paid to Noovy

“Guests” mean persons requesting, being provided or having been provided with Service whether or not registered with Noovy Platform

“Guests’ General Terms and Conditions” mean current version of Terms and Conditions for Guests made available via Noovy Platform, as amended from time to time by Noovy

“Hosting Platform” means Amazon Web Services hosting solution for Software Products or other hosting platform as notified by Noovy to Partners from time to time

“Hosting Provider” means Amazon Web Services or other provider of hosting for Software Products and/or Services as notified by Noovy to Partners from time to time

“Facility” means hotel or other facility operated by Partner as agreed within the Agreement

“Listing” means available Service along with its specific properties made available by Partner to Guests via Noovy Platform

“NOOVY Account” means account granted to Partner for facilitation of Services based on the Agreement via Software Products

“Noovy Platform” means Noovy’ website or other platform made available to the Partner based on the Agreement

“Noovy” means Noovy Ltd a private company with limited liability organized under the laws of Ireland, having its registered address at Chase House, City Junction Business Park, Northern Cross, Dublin 17, registered with the Irish Chamber of Commerce with number 662588.

“Partner” means party to the Agreement with Noovy

“Terms and Conditions for Partners” mean current version of Terms and Conditions for Partners as may be amended from time to time by Noovy

“Provided Service” means confirmed Service reservation to be provided in Facility evidenced within Software Products as being reserved by a Guest and which has not been cancelled prior to consumption of the particular Service notwithstanding the Service was duly provided or cancelled; or, alternatively a Service reserved and cancelled any time before consumption if the total number of previously cancelled reservations in the particular month has already exceeded 5% of all Provided Service units within the same month

“Personal Data” means personal data processed within Software Products consisting of data categories including identification of the data subject, payment details, details of Service and customer preferences and as further specified in Software Products Description

“Protected Materials” means Software Products and related documentation

“Purpose” means the purpose for processing of Personal Data herein, covering the purpose of Services (i.e. reservation, provision of Service and payment therefor) and as further specified within Software Products Description

“Reselling” or “Reseller” or “Merchant of Record” mean services provided by Noovy to Partner using Noovy Platform, inter alia, where services agreement are concluded by Guest and NOOVY System but Service is honoured by Partner for the benefit of Guests, and further specified in part “Reseller”

“Service(s)” means accommodation or other service published, offered or provided by Partner to Guests via use of or facilitation by Software Products, or in any other way with assistance of Noovy

“Software Products” mean Software Products specified in Software Products Description and used for facilitation of Transactions, i.e. delivery of Services from Partners (via Noovy) to Guests

“Software Products Description” means description of Software Products specified in NOOVY Core Functionality available to Partners via website of Noovy

“Starting Date” means the date of commencement of cooperation according to the Agreement

“Technical requirements” mean current technical requirements designed for proper use of Software Products which are available to Partners via website of Noovy, as amended from time to time by Noovy

“Territory” means territory agreed by the Parties on the basis of the Agreement (in the absence of specific agreement, the territory is deemed to be Ireland)

“Transactions” mean Reselling and/or Agency provided or facilitated by Noovy

“Transaction Fees” mean fees payable by Partner to Noovy for the Provided Services or for the facilitation of Services according to the Agreement

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  1. Models of cooperation

1) Models. Partner shall cooperate with Noovy via concluding the Agreement and setting up of model of cooperation, according to which Noovy provide services to Partner as an agent or as a Reseller.

2) Agency model. If agreed in the Agreement, Partner hereby appoints Noovy as limited agent with respect to booking accommodation and other Services provided by Partner to Guests, subject to limitations as stipulated herein. In this context, Noovy shall enable publishing Listing of Partner via Noovy Platform and its offer of accommodation and other services.

3) Reseller model. If agreed in the Agreement, Noovy shall provide Guests with accommodation and other Services on its own behalf, subject to limitations as stipulated herein. In this context, Noovy publishes Listing of offers for accommodation and other Services to be supplied by Partner. Partner undertakes to provide Noovy with types of Services for which Noovy is expected to resell them. From these Fees, the Transaction Fee shall be deducted by Noovy to which Partner irrevocably grants its consent.

4) Selection and agreement with terms. By concluding the Agreement, the Parties agree with these Partners’ General Terms and Conditions and are bound thereby to the extent relevant to the selected model of cooperation.

5) Prior use. Parties hereby represent and agree that Partner has been given the opportunity to try Software Products, they fit its business purpose and has been given all relevant access codes to NOOVY Account through which Partner has been offered opportunity to try a demo and will be further able to use services of Noovy.

 

  1. Listing, confirmation & service provision

1) Listing. Partner acknowledges and agrees that he is fully responsible for the uploaded availability of accommodation or other Services to Noovy Platform. Accordingly, Partner represents and warrants that the uploaded available Services i) will not breach any agreements made by Partner with a third party, ii) will be in compliance with all applicable laws, and iii) do not conflict with rights of third parties. Noovy is entitled to disable, at any time, without any prior notice and at its sole discretion, to remove or disable access to any available Service Listings uploaded to the Noovy Platform, if it considers to be objectionable by any reason, especially if it breaches applicable laws and regulations.

2) Confirmation. In case a Guest is requesting reservation Service via Noovy Platform, Noovy is entitled to confirm such reservation to the Guest, once the Service is available and all specified requirements of relevant Partner’s Listing has been fulfilled by Guest’s reservation, on its own behalf (as a Reseller) or on behalf of Partner (as an Agent). Noovy shall provide the details of the Guest and his request to Partner. Partner shall not be allowed to request Guest to pay a higher price than in the reservation request.

3) Delivery. Partner is solely responsible for serving any bookings or other services confirmed via Noovy Platform. Noovy shall not bear any liability in this connection. Partner undertakes to indemnify and hold harmless Noovy from any claims or liability whatsoever which may arise from or in connection with provision of accommodation and related services.

4) Cancellation by Partner. If, from whatever reason, Partner cancels a Service which reservation is confirmed, Partner shall without any undue delay repay any and all amounts of money already collected to the respective Guest and pay

  1. a) In case of Reseller model, contractual penalty amounting to EUR 50 payable immediately to Noovy who may set-off the contractual penalty against any payment redeemable to Partner collected from any Guest(s) (this is also applicable for when the guest themselves have cancelled the reservation as a result of a Chargeback); or
  2. b) In case of Agency model, contractual penalty amounting to EUR 15 payable along with Transaction Fees for the respective month in which relevant Service reservation was cancelled.

Contractual penalty serves as recovery of costs of Noovy in relation to cancelled reservation, delisting of respective Service offer and sending other options of similar Service to the respective Guest. Damage caused to Noovy exceeding this amount shall not be thereby affected.

5) Cancellation by Guest. In case of Agency model, cancellation by Guest is governed by service terms of particular Partner. In case of Reseller model, Noovy shall be authorised to i) permit the Guest to cancel the reservation, ii) refund to Guest portion of Fees as specified in the applicable cancellation policy provided by Noovy within Guests’ General Terms and Conditions.

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  1. Payment terms & Transaction fees

1) Calculation of Transaction Fees. Transaction Fees are based on actual prices set forth by Partners within Listings. Actual Transaction Fees shall be calculated as relevant fee rate agreed in the Agreement multiplied by Provided Service at actual Transaction Fee ration agreed with Partner in the Agreement. The Transaction Fee is applicable to all transactions occurred through the service provided by Noovy, unless otherwise specified.

2) Payment terms. Noovy shall invoice Transaction Fees to Partner on a monthly basis. Invoices shall provide an overview of Provided Services per relevant month; whereas total sum to be invoiced shall be then construed according to hereabove.

3) Repayment of Fees. Noovy shall, only in Reseller model, pay to Partner an amount corresponding to Fee for Provided Service by Partner. Noovy shall not have any obligation to pay Partner such amount of Fees until the corresponding payments are duly received from Guests. Partner hereby irrevocably grants consent to Noovy to set-off any Transaction Fees against any amounts payable to Partner.

4) Invoices. Noovy shall issue invoices no later than fifteen (15) days after the end of the respective month. The invoice currency shall be euro (EUR), unless agreed otherwise by the Parties. All invoices issued on the basis hereof are due within fifteen (15) days from delivery of the invoice to Partner, subject to specific cases agreed herein. Payments shall be deemed to be made on the day when such payments are credited to bank account of Noovy. All fees of Noovy are excluding VAT or other taxes which will be separately payable by Partner applied to invoiced amounts of Transaction Fees, where applicable.

5) Both Noovy and Partner declare that the consideration pursuant hereto is made upon the mutual consent of both parties.

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  1. License and manner of use

1) Licence grant. Subject to the terms and conditions herein and to the extent of Software Products agreed by the Parties for facilitation of Transactions and Services, Noovy grants Partner non-exclusive and non-transferable right to use Software Product in the extent specified herein. Fee for granting license is included in the Transaction Fee.

2) Purpose. The purpose of this Agreement is provision of support to part of business processes in provision of Partner’s Services in specified Facilities on the basis of use of Software Products. The Licensee or any of its Affiliates (if and to the extent specifically agreed by the Parties in the Agreement) is entitled to use Software Products only for its internal business processes. Therefore, Software Products may only be utilized for internal use by the Partner or any of its Affiliate (if and to the extent specifically agreed by the Parties in the Agreement) and Partner is not entitled to use the system for processing of data for third persons or for other Facility, inter alia, by allowing any third party to use Software Products by any technical means or by processing any requests for the third parties. Software Products may only be used for the purposes specified in the Documentation, notwithstanding the fact that those Software Products could theoretically be used also for other purposes. In case Partner violates this provision either by using Software Products for any third party, by allowing the use of Software Products by a third party or by using Software Products for other purpose or Facility, Noovy has the right to withdraw from all of its contractual obligations to the Partner and terminate the Agreement without notice period.

3) Scope. Partner may use only those Software Products (and their scope) as agreed by the Parties notwithstanding that the access codes may enable Partner to use also other products (or more extensive scope thereof). Partner is entitled to use Software Products only for provision of Services in Facility, within the Territory and for the period starting from the Starting Date until the termination of the Agreement (or, as the case may be, relevant part of the Agreement related to terminated use for the purposes of facilitation of specific Service).

4) Access. Partner may grant access to Software Products only to its employees which Partner uses for provision of Services in connection to Facility. In such cases Partner shall oblige these persons to adherence to copyright or other rights of Noovy as stipulated herein. This nevertheless does not affect the limitation of use only for internal purposes of Facility.

5) Conduct. Partner shall keep the working environment (including but not limited to the functioning of the network) in compliance with Partner’s Terms and Condition and Documentation and in line with standard business practices for working environment for similar systems. Partner shall adhere to Technical requirements. Noovy shall thus not be liable for any limited or no functioning of Software Products arising out of noncompliance with these requirements. Noovy shall neither be responsible for any damage arising out hereof.

6) Changes. Partner shall not be entitled to make any changes to Software Products subject to standard administration settings in line with the Documentation.

7) Hosting. Partner represents that he is aware that specific Software Products are hosted on Hosting Platform and that he is also aware of any technical and other limitations for use of Software Products arising out of Terms of Hosting.

8) NOOVY API. The Partner acknowledges and agrees that Noovy may grant limited access to third persons to certain parts of specific Software Products and to certain part of its contents via NOOVY Application Programming Interface (“NOOVY API”) on the basis of NOOVY API Terms and Conditions (“NOOVY API Terms”). Any Personal Data of Guests may be accessed or in any other way processed only upon proving that the relevant Guest requested and consented with accessing its Personal Data stored within any specific Software Product via NOOVY API. Noovy shall undertake reasonable endeavours to procure for deletion of Personal Data by such third party, if the Partners gives notice to Noovy that its Guest requested deletion of its Personal Data also from third parties. Once Noovy obtains report on any security breach from such third party, it will notify the Partner, if it determines that the security may anyhow affect the Partner (such determination to be done at the sole discretion of Noovy).

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  1. Software products’ properties and cooperation

1) Properties. Software Products for facilitation of Transactions shall have functional properties as specified in Software Products Description (core functionality). Noovy does not accept any responsibility for any other functions or properties exceeding this scope whether expressly stated or implied from the text of the Documentation.

2) Errors. Partner is obliged to specify any potential errors with a sufficient specification. Noovy may correct the errors by the change of Software Products supplied to Partner, providing a new version of Software Products without such error or by showing Partner option how to prevent the error to apply. In connection with that the Noovy is providing the support pursuant to Service Level Agreement specified herein (free of charge). Should this scope be exceeded, Noovy shall be entitled to the remuneration in accordance with terms of Service Level Agreement specified herein (charged).

3) Changes made by Partner.Partner shall not alter, edit, adapt or otherwise change the Software Products. In case of any such changes to Software Products (as described in Software Product Description) by Partner or in case of interconnection with other system independently developed by Partner, Noovy shall not be liable for any errors and does not warrant the proper functioning of Software Products. For avoidance of any doubt, this does not empower Partner to perform changes, implementations and/or modifications of Software Products. The changes, implementations and/or modifications of Software Products may be performed only by Noovy and/or with the previous written consent of Noovy under the terms in the granted consent.

4) Due cooperation. Partner shall provide Noovy for the purpose of easy handling Transactions enabling respective Partner’s services with appropriate cooperation in scope, resources and personnel free of charge, inter alia, by providing technical resources, qualified personnel obliged to provide with such cooperation or by providing specifications and undertaking tests, by taking over the work duly provided by Noovy, etc.

 

  1. Service Level Agreement

1) Maintenance. If specifically agreed in the Agreement, Noovy shall also provide to Partner maintenance services in connection with the Software Products under the pricing terms set out therein.

2) New development. Noovy further develops Software Products with respect to their quality and modernity, adjusts them to changes in technical environment, issues patches, corrections and new versions to be used by Partner. In connection with that, minor and major extensions of functionality could be provided. Noovy shall exert maximum endeavours which may be reasonably required upon him to patch and/or correct all errors of Software Products without undue delay. Any cases disabling Partner to use Software Products shall be prioritised.

3) Price indexation. The prices for maintenance may be increased by HICP inflation index published by European Central Bank and may be applied by Noovy once per year with one (1) month notice period.

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  1. Liability, contractual penalty, and indemnity

1) General principles. Both Parties are liable for any damage caused by them which may have arisen by virtue of law. Neither of the Parties shall be liable for any damage in connection with an invalid request of the other Party or as a result of the force majeure.

2) Third party hosting. Noovy shall not be liable for any damage caused by the malfunctions of such Hosting Platform that are not under the control of Noovy but may affect the proper functioning of Software Products.

3) Limitations. Both Parties have agreed that the overall damage arising out of or in connection with this Agreement shall not exceed the overall price of remuneration to be paid during the last calendar month on the basis hereof. Noovy shall not be liable for any loss of profit, business, contracts, revenues, anticipated savings or damage to good name, or for any special, indirect, or consequential damage, except for cases caused intentionally or fraudulently, or if causing personal injury or death.

4) Indemnification by Noovy. Should any intellectual property rights in Software Products of third party emerge, Noovy shall indemnify Partner for all successful claims of third parties from this reason, if all following conditions are met:

  1. a) Partner notifies Noovy of any such claim without undue delay and in concise and written form;
  2. b) Partner does not recognise the claim;
  3. c) Partner grants the Power of Attorney to Noovy on his request in order to settle the claim via court or out of court; and
  4. d) Partner does not provide any other steps which could influence the result in any way.

5) Indemnification by Partner. Partner shall indemnify and hold harmless Noovy (including legal fees) without undue delay from its notice by Noovy for any claims brought against Noovy by any third party as a result of Party’s breach of these terms or representations (including, but not limited to, any representations with respect to its Services or Facility) or applicable laws.

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  1. Copyright or other Intellectual Property rights

1) General. Software Products, its design, analytical materials, testing scripts, Documentation and other related materials, all as may be further developed by Noovy on the basis hereof (“Protected Materials”) are protected by copyright and may also be protected by other intellectual property rights.

2) Restricted actions. Partner shall only use the Protected Materials only in the extent and for the purposes specifically stipulated hereby or in case it is specifically allowed by law (statutory license). Except as otherwise provided in this Agreement, Partner shall be entitled to copy or alter the Protected Materials, hand them over to third parties, enable using them by third parties or develop other computer programs on the basis of or similar to Software Products, only on condition that Partner obtained prior written consent of Noovy. For the purpose hereof, the Parties agree that the copying to the hard-drive or other media (whether portable or not) or copying of paper based materials shall amount to copying. Partner is however entitled to adapt Software Products in accordance with the Documentation (system parameterisation).

3) New works. In case Partner creates an author’s work or other legally protected work in connection with use of Software Products, Partner shall offer to Noovy (based on rights obtained from the authors) that it concludes with Partner an agreement on the basis of which it grants Noovy the right to include it into the set of program files and functional blocks and to use them as a standard part of any of the Software Products or other computer program and to grant the rights to use it to third parties. Partner is entitled to create such work only on the basis of a written consent provided by Noovy. In case such work is used and licensed to third party, Partner shall be entitled to adequate remuneration. In case the legal regulations imply that such agreement between Noovy and Partner must be concluded in a specific form, a Party is obliged to conclude the agreement in that form based on the request of the other Party. In case new author’s work is created by Noovy in connection with the system maintenance or system administration, Noovy shall retain any and all rights connected thereto. Noovy is entitled to use such work similarly to the rest of Software Products.

4) Representation. Noovy represents and warrants that no third party has copyright or any other intellectual property rights in Software Products which would anyhow limit the right of the Partner to use Software Products in accordance with this Agreement.

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  1. Data protection

1) Purpose. Save where Noovy obtains specific consents to process Personal Data from the data subjects for other purposes, Noovy shall process the Personal Data exclusively for the Purpose of this Agreement.

2) Legal obligations. Partner shall ensure that all obligations set out in relevant data protection laws are met (e.g., in Ireland the Data Protection Act, as amended). Partner shall be liable for fulfilment of these obligations and shall not entrust any third party therewith.

3) DPT Policy. Parties will process and/or sub-process (by Hosting Provider or another provider as notified Partner by Noovy) and transfer Personal Data in accordance with Data Processing and Transfer Policy for Partners.

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  1. Duration, changes, and termination

1) Duration. Subject to earlier termination, the Agreement and services to be provided thereunder (including use agreed Software Products) shall be provided for an unlimited period unless terminated (i.e. is granted for the whole period of duration of copyright (its property rights)).

2) Changes. These Terms and Conditions may be changed from time to time by Noovy. Any such change will be notified via website of Noovy or NOOVY Accounts of all Partners at least 30 (thirty) calendar days before effectiveness of such change. In case Partner does not agree with these amended Terms and Conditions, he shall duly notify Noovy in writing pursuant to which notification the Agreement shall be deemed as terminated as per the date that the changed Terms and Conditions come to effect.

3) Suspension. Noovy may suspend the production access rights and/or NOOVY Account of Partner (thus disabling operation any and all of Software Products for Partner) for facilitation of provision of Services in case the Partner’s delay with the payment of Transaction Fees for more than ten (10) days or in cases regarded as serious violation of the Agreement by Partner. Any other rights of Noovy arising out Partner’s violation remain unaffected.

4) Withdrawal. Both Parties may terminate the Agreement via a written notice with the notice period of one (1) month as of the first day following the delivery of the notice the other Party. By terminating the Agreement, Noovy does not waive any of its rights to claim the unpaid Transaction Fees, contractual penalty or any claim for damages.

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  1. Applicable law and dispute resolution

1) Jurisdiction. In case the dispute is not settled by mediation, it shall be finally resolved by the competent court in Dublin, Ireland.

2) Applicable law. The Agreement shall be governed by and construed in accordance with the laws of Ireland, excluding the UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, and without regard to conflict-of-laws principles.

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  1. Force majeure

1) Subject to economic or payment reasons, neither of Parties shall be deemed in default of the Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies, or any other cause beyond the control of such party (force majeure).

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  1. Final provisions

1) Entire Agreement. The Agreement, including these Terms and other applicable terms to the relation of Parties as mentioned herein constitutes the entire agreement between Parties with respect to the subject matter hereof and supersedes all previous proposals, both oral and written, negotiations, representations, commitments, writings and all other communications between the parties. It may not be modified or amended except by a writing signed by a duly authorized representative of each of Parties.

2) Severability. The provisions of this Agreement are severable, and if any part of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement will not be affected.

3) Assignment. This Agreement will be binding upon and inure to the benefit of the Parties, their respective successors and assigns. No Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party. For avoidance of any doubt, Partner may not assign and/or sub-license the license granted under this Agreement without the previous written consent of Noovy. The Parties expressly agree that for the assignment of the license within the transfer of the enterprise of Partner a specific consent of Noovy to the assignment within the transfer of the enterprise is required.