This Fornova Subscription Agreement (this “Agreement”) is made and entered into as of the date set forth in the Order Form (as defined below) (“Effective Date”), by and between Fornova and Customer (as such terms are defined in the Order Form). Any Order Form entered into between the parties shall be deemed to incorporate the terms of this Agreement and constitute an integral part hereof. The exhibits to this Agreement are deemed an integral part thereof.
Subject to the terms and conditions set forth herein (including, without limitation, full payment of the applicable fees), Fornova hereby grants to Customer, and Customer accepts, a personal, nonexclusive, non-transferable, non-sublicensable, non-assignable, fee bearing, fully revocable, limited license to access and make use of the services and the work product created as a result of the services, as set forth in the Fornova Order Form executed by Customer and Fornova and attached hereto (the "Order Form” and the "Services” respectively) under the limitations herein and in the Order Form. The rights granted herein with respect to access to and use of the Services are solely for Customer’s internal business purposes, during the Term (as defined below) and subject to Customer's compliance with the terms of this Agreement.2. Services
Customer hereby acknowledges and agrees, that the Services shall be provided by Fornova on the basis of commercially reasonable efforts and Fornova makes no representation or warranties of any kind, either express or implied, that any results will be achieved by the Services or any work product.
Certain Services, such as campaign management services, are dependent on the terms and conditions, availability and other aspects of advertising platforms, ad-networks and campaign management tools, on which Fornova has no influence or control. By executing an Order Form with Fornova, Customer expressly acknowledges that the terms and conditions governing such platforms, networks ad tools also affect the rights and duties of the parties under this Agreement. Customer shall cooperate with Fornova and provide Fornova with any access or assistance as Fornova may reasonably request. With respect to campaign management, Fornova will actively manage any spend to avoid exceeding any pre-agreed media budget each month. However, Customer acknowledges that the budget is not guaranteed and Customer will be responsible for actual spend.3. Google Pay Per Stay Campaign Management
In the event that Fornova is providing to Customer Google Pay Per Stay Campaign Management services, as set forth in the Order Form, this Section 3 shall apply with respect to such services.
Notwithstanding anything to the contrary in this Agreement, in the event that the Google Pay Per Stay Campaign Management Fees are not paid within 12 days from the due date, Fornova shall be entitled to immediately suspend the Google Pay Per Stay Campaign Management service, without notice, and without derogating from any right or remedy available to Fornova under this Agreement or under applicable law.
Certain definitions used in the Order Form:
a. “Google Fees” – all fees charged by Google, including, without limitation, any Pay-Per-Stay charge.
b. “Google Pay Per Stay Campaign Management Fees” – a percentage set forth in the Order Form of the all booking revenues received from Pay Per Stay campaigns managed by Fornova after Reconciliations.
c. “Reconciliation” – the deduction of any refundable and cancelled booking from the total booking revenues of the Customer, in connection with the Pay Per Stay campaign.
4. Modification or Discontinuation of the Services
Fornova may change or update the Services at any time, including the availability of any feature, content or database, and Fornova may impose limitations or restrictions on certain features and services or on the access to the Services (or any part thereof), without notice or liability, unless Fornova considers certain change to be material, in which case Fornova will notify Customer by posting an announcement on Fornova's website, through the Services or by email. Furthermore, Fornova may offer alternative or additional features to certain Customers, that may not be offered to others.5. Title and Ownership
The Services, including any revisions, corrections, modifications, improvments, derivatives, enhancements, updates and/or upgrades thereto (if any) and the related documentation and all right, title, interest in and to any of the foregoing and all intellectual property rights (including, without limitation, patents, copyrights, trade secrets, and trademarks) related thereto, are and shall be owned exclusively by Fornova and its licensors. This Agreement does not convey to Customer an interest in or to the Services, but only a limited right of use, revocable in accordance with the terms hereof. The rights granted by this Agreement are limited to those expressly stated herein, no additional rights or licenses are being granted or implied, and Fornova reserves all rights not expressly granted herein. Customer shall not provide, present and/or display the data generated under the Services to any third party without receiving Fornova's prior written consent.
Except as expressly authorized herein, Customer shall not: (A) copy, adapt, vary, enhance, modify any portion of the Services, nor permit any person or entity to do so; (B) take any action designed to defeat or bypass the operation of any security measure incorporated in the Services, or take any action intended to circumvent or disable the operation of any security feature or measure of the Services; (C) publish, distribute, sell, disclose, market, sublicense, rent, assign (by operation of law or otherwise), use for service bureau purposes, lease, display, provide, transfer or make available the Services, or any portion thereof, to any third party; (D) use the Services in any manner not authorized by this Agreement; (E) use, or encourage, promote, facilitate or instruct others to use, the Services for any illegal, harmful or offensive use; (F) allow any person or entity, other than as explicitly permitted herein, to access the Services; (G) "unlock", decompile, reverse engineer, disassemble or otherwise translate the Services or otherwise make any attempt to discover the source code of, modify, or create derivative works of the Services or any part thereof, nor permit any person or entity to do so; (H) interfere or attempt to interfere with the integrity or proper working of the Services; (I) provide public access to results obtained by the Services; (J) access the Services or Fornova's systems via any means other than through the interface provided by Fornova, or via automated means, including by crawling, scraping, caching or otherwise, and/or (K) alter, deface, remove or destroy Fornova’s or any third-party’s identification, attribution, trademark, copyright notice or other proprietary notices included in the Services. Customer hereby covenants and agrees to: (i) Subject to the capacity limit set forth in the Order Form, limit access to and use of the Services solely to its employees who require access in connection with Customer’s use of the Services, and (ii) take all reasonable precautions to prevent unauthorised or improper use or disclosure or use of the Services.
The Services may be used to access third party content and other intellectual property. Without derogating from the aforementioned, Customer shall not use the Service to violate, misappropriate or infringe any third party right and shall not unlawfully use any data or information aggregated by the Services. Customer will indemnify, defend, and hold harmless Fornova and its affiliates and their respective employees, shareholders and directors ("Indemnified Parties"), from any and all demands, claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) which result from any allegation against any Indemnified Party arising from Customer's violation, misappropriation or infringement of any third party right or from unlawful use of any data and/or information aggregated by the Services.7. Feedback
Customer shall notify Fornova of any and all design or functional errors, anomalies, and problems associated with the Services discovered or brought to its attention by its users, and may provide Fornova suggestions, comments or any other feedback regarding the Services (the "Feedback"). Fornova may use any Feedback at its sole discretion, free from any right of the Customer or any third party and without any obligation towards Customer. Customer hereby assigns to Fornova all right, title, and interest worldwide in the Feedback and any intellectual property rights related thereto, and explicitly and irrevocably waives any and all claims associated therewith. Customer shall not provide Fornova with any Feedback which infringes any third-party's right.8. Intellectual Property Infringements
In the event that Fornova believes that the provision of the Services by Fornova may infringe intellectual property rights of third parties, then Fornova may, in its sole discretion: (i) obtain (at no additional cost to Customer) the right to continue to use the Services; (ii) replace or modify the allegedly infringing part of the Services so that it becomes non-infringing while giving substantially equivalent performance; or (iii) if Fornova determines that the foregoing remedies are not reasonably available, then Fornova may require that use of the (allegedly) infringing Services (or part thereof) shall cease and in such an event Customer shall receive a prorated refund of any Fees paid for the unused portion of the subscription Term (or the respective part thereof).
9. Personal Data.
(i) Notwithstanding anything to the contrary herein, Customer hereby grants Fornova, its affiliates and its sub-processors an irrevocable, perpetual, non-exclusive, worldwide, royalty-free, fully paid, sub-licensable right and license to access, extract, use, process, copy, download, distribute, display, store, host on its servers, and otherwise exploit data and content available on Customer's website (“Content”) and/or Customer hotel’s operational, financial and reservation data such as: property or revenue management systems (the “Customer Data”). The Customer Data shall only be used by Fornova for the performance of the Services for the Customer under this Agreement. Such license will apply to any form, media, or technology now known or hereafter developed.
(ii) Customer represents and warrants that (a) Customer owns or has all the necessary licenses, rights, consents, approvals, permissions, power and/or authority, necessary to grant Fornova the aforementioned right and license and to authorize Fornova and its sub-processors to access, use, process, copy, download, store, distribute and display the Content and the Customer Data, without infringing or violating any copyrights, privacy rights, publicity rights, trademarks or any other contractual, intellectual property or proprietary of any third party; (b) any Customer Data and any use thereof do not and shall not violate any applicable laws, including those related to data privacy or data transfer and export or any policies and terms governing such Customer Data; and (c) no sensitive data that is protected under a special legislation and requires unique treatment (such as protected health information or credit, debit or other payment card data) will be transferred to the Services.
(iii) Other than Fornova's data protection obligations expressly set forth herein, Fornova assume no responsibility or liability for Customer Data and the Content, and Customer will be solely responsible for Customer Data and the Content, and for the consequences of using, disclosing, storing, or transmitting it. It is hereby clarified that Fornova shall not monitor and/or moderate the Customer Data or the Content, or the Customer's use of the Services, and there shall be no claim against Fornova for not acting so. Customer shall indemnify and hold harmless Fornova or anyone on its behalf from any liability, cost, damage and expense (including reasonable legal fees) caused in connection with the Customer Data or the Content.
(iv) If any Customer Data collected through Customer's use of the Services is deemed Personal Data (as such term is defined under the EU General Data Protection Regulation 2016/679 (“GDPR” and “Personal Data” respectively)) and is subject to the GDPR, then the terms and conditions set forth in the Data Processing Addendum (“DPA“) available here shall apply to the processing of such Personal Data, and the DPA shall be incorporated by reference into, and made and integral part of, this Agreement.10. Third-Party Software and Services
(i) Sub-processors. Customer acknowledges that the Services may be hosted and made available by certain sub-processors of Fornova. Fornova may remove, add or replace its sub-processors from time to time, at its sole discretion.
(ii) Free Software. The Services may include third-party “open source” or “Free Software” components that are subject to third-party terms and conditions (“Third-Party Terms”). If there is a conflict between any Third-Party Terms and the terms of this Agreement, then the Third-Party Terms shall prevail, but solely in connection with the related third-party component. Fornova represents and warrants that it is in compliance with the notice and attribution aspects of the Third-Party Terms.
(iii) Other Products and Services. The Services may contain links to other third-party services or may enable Customer and its users to access, engage and procure certain services and products provided by third parties (the “Third-Party Services”). Customer acknowledges and agrees that regardless of the manner in which such Third-Party Services may be presented or offered to Customer, Fornova does not endorse any such Third-Party Services or shall be in any way responsible or liable with respect to any such Third-Party Services. BY ACCESSING AND/OR USING THE THIRD-PARTY SERVICES, CUSTOMER ACKNOWLEDGES THAT ITS ACCESS AND USE OF THE THIRD-PARTY SERVICES ARE AT ITS SOLE DISCRETION AND RISK, AND CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING SUCH THIRD-PARTY SERVICES ARE IN COMPLIANCE WITH CUSTOMER’S REQUIREMENTS AND ANY APPLICABLE LAW OR REGULATION. FORNOVA BEARS NO RESPONSIBILITY AND/OR LIABILITY FOR ANY LINKS OR THIRD-PARTY SERVICES, INCLUDING WITHOUT LIMITATION, SUCH THIRD-PARTY SERVICES’ OPERABILITY OR INTEROPERABILITY WITH FORNOVA’S SERVICE, SECURITY, ACCURACY, RELIABILITY, DATA PROTECTION AND PROCESSING PRACTICES AND THE QUALITY OF ITS OFFERINGS, AS WELL AS ANY ACTS OR OMISSIONS BY THIRD PARTIES.11. Fees and Taxes
In consideration of the provision by Fornova to Customer of the Services, Customer shall pay the fees and other charges as set forth in the Order Form (the “Fees”). The Fees shall be invoiced and paid as set forth in the Order Form. All amounts due for more than 30 days under this Agreement shall be paid in cash or cleared funds to the bank account specified from time to time by Fornova. Any payments not made within 30 days as of the due date, shall accrue interest at the rate of one and one-half percent (1½%) per month as of the due date, and until full payment thereof. In case a payment due is not paid within 60 days from the due date, Fornova shall be entitled to suspend its Services or terminate the Agreement, without derogating from any right or remedy available to Fornova. All amounts payable will be made without setoff or counterclaim, and without any deduction or withholding. All fees and charges payable by Customer are exclusive of applicable taxes and duties, including, but not limited to, VAT and applicable sales tax. Customer will provide Fornova any information Fornova may reasonably request to determine whether it is obligated to collect VAT or applicable sales tax from Customer, including Customer’s VAT identification number. Customer shall pay to the relevant taxing authority and Fornova for any liability relating to such taxes and duties, other than taxes based upon Customer's net income. If Customer is legally entitled to an exemption from any sales, use, or similar transaction tax, Customer is responsible for providing Fornova with legally-sufficient tax exemption certificates for each taxing jurisdiction. Fornova will apply the tax exemption certificates to charges occurring after the date Fornova receives the tax exemption certificates. If any deduction or withholding is required by law, Customer will notify Fornova in advance and in writing and will pay Fornova any additional amounts necessary to ensure that the net amount that Fornova receives, after any deduction and withholding, equals the amount Fornova would have received if no deduction or withholding had been required. Additionally, Customer will provide Fornova with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority. Customer retains the responsibility for settling all outstanding balances in a timely manner and maintaining updated billing information. Unless expressly set forth herein or on the Order Form, the Fees are non-cancellable and non-refundable. Fornova reserves the right to change the Fees at any time, upon notice to Customer, provided that any increase shall only become effective upon the end of the then-applicable subscription Term.12. Disclaimers
EXCEPT AS EXPLICITLY OTHERWISE SET FORTH HEREIN: (I) ANY USE BY CUSTOMER OF THE SERVICES AND/OR ANY WORK PRODUCT THEREOF AND/OR ANY DATA AND/OR INFORMATION AGGREGATED BY THE SERVICES IS AT CUSTOMER'S OWN RISK, (II) THE SERVICES AND/OR ANY WORK PRODUCT THEREOF AND/OR ANY DATA AND/OR INFORMATION AGGREGATED BY THE SERVICES ARE PROVIDED “AS IS,” AND (III) TO THE MAXIMUM EXTENT PERMITTED BY LAW, Fornova DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, AND/OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, SATISFACTORY QUALITY, SECURITY, NON-INFRINGEMENT, AVAILABILITY, TIMELINESS, ACCURACY, CORRECTNESS, COMPLETENESS, RELIABILITY, RESULTS, IN RESPECT OF THE SERVICES, CONTENT, WORK PRODUCT THEREOF AND/OR ANY DATA AND/OR INFORMATION AGGREGATED BY THE SERVICES AND Fornova SHALL NOT BE LIABLE FOR ANY OF THE FOREGOING. Fornova DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES AND/OR ANY WORK PRODUCT THEREOF AND/OR ANY DATA AND/OR INFORMATION AGGREGATED BY THE SERVICES WILL MEET ANY REQUIREMENTS OR NEEDS CUSTOMER MAY HAVE, OR THAT ANY PROCESS, ACTION, INFORMATION OR ADVICE OBTAINED BY CUSTOMER AS A RESULT OF THE USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, EFFECTIVE, PROPER, LAWFUL OR OTHERWISE IN ACCORDANCE WITH THE CUSTOMER’S EXPECTATIONS, OR THAT THE SERVICES AND/OR ANY WORK PRODUCT THEREOF AND/OR ANY DATA AND/OR INFORMATION AGGREGATED BY THE SERVICES WILL OPERATE ERROR FREE, WITHOUT DELAY AND/OR OR IN AN UNINTERRUPTED AND/OR TIMELY FASHION, AND/OR THAT ANY DEFECTS OR ERRORS IN THE SERVICES AND/OR ANY WORK PRODUCT THEREOF AND/OR ANY DATA AND/OR INFORMATION AGGREGATED BY THE SERVICES WILL BE CORRECTED, AND/OR THAT THE SERVICES AND/OR ANY WORK PRODUCT THEREOF AND/OR ANY DATA AND/OR INFORMATION AGGREGATED BY THE SERVICES ARE SECURED FROM UNAUTHORISED ACCESS. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES.
13. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL Fornova BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, DAMAGES FOR LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA, OR LOSS OF BUSINESS INFORMATION, ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES OR LIABILITIES HAVE BEEN COMMUNICATED TO Fornova, ITS AFFILIATES OR THIRD-PARTY PROVIDERS, AND REGARDLESS OF WHETHER Fornova, ITS AFFILIATES OR THIRD-PARTY PROVIDERS, HAVE OR GAIN KNOWLEDGE OF THE EXISTENCE OF SUCH DAMAGES OR LIABILITIES. Fornova'S CUMULATIVE AND AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY Fornova FROM CUSTOMER HEREUNDER DURING THE 6 MONTHS PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
Each of the parties may be exposed to certain information concerning the other party and/or its business that is not generally known to the public, including information contained or relating to the Services and/or the terms and conditions of this Agreement (“Confidential Information”). The receiving party shall refrain from using or exploiting any and all of the Confidential Information for any purposes or activities other than for the performance of this Agreement or as permitted herein. The receiving party shall (i) hold the Confidential Information in strict confidence and protect the Confidential Information to the same extent and by the same means it uses to protect the confidentiality of its own proprietary or confidential information that it does not wish to disclose, but in no event less than reasonable means, and (ii) refrain from disclosing or facilitate disclosure of the Confidential Information to anyone, without the disclosing party's prior written consent, except to those of its employees and/or subcontractors with a need to know such information for the purposes of the performance of this Agreement whom are bound by confidentiality obligations no less restrictive than those set forth herein. The obligations under this Section 14 do not apply to any Confidential Information that receiving party can demonstrate: (i) receiving party possessed, without an obligation of confidentiality, prior to disclosure in connection with this Agreement; (ii) is or becomes public through no fault of receiving party; (iii) is independently developed by receiving party without use or reference of any Confidential Information; or (iv) is received by receiving party from a third party that does not have an obligation of confidentiality to the disclosing party. In any event, receiving party shall be responsible for any breach thereof by any of its said employees and/or subcontractors. If, in the reasonable opinion of its legal counsel, receiving party is required by law, regulation, rule, act, or order of any governmental authority, agency or court of law (“Governmental Regulations”) to be disclosed by receiving party, then receiving party may disclose such information to the arbitrator, court or other governmental authority, as the case may be provided, however, that to the extent permitted under applicable law, receiving party gives the disclosing party written notice sufficiently in advance to permit the disclosing party to seek a protective order or other similar order with respect to the Confidential Information (and receiving party supports disclosing party’s efforts to seek such protective measures) and, thereafter, receiving party discloses only the minimum Confidential Information required to be disclosed in order to comply with the Governmental Regulation, whether or not the disclosing party seeks or obtains any such protective or other similar order. Receiving party will promptly report to disclosing party any suspected or actual unauthorized use or disclosure of the Confidential Information that it becomes aware of and provide reasonable assistance to disclosing party in the investigation and prosecution of any such unauthorized use or disclosure. Notwithstanding anything to the contrary herein, the rights and obligations set forth in this Section, may be enforced by legal action seeking injunctive relief without posting a bond.
15. Term and Termination. This Agreement shall commence on the Effective Date and shall continue for the initial term set forth in the Order Form (the "Initial Term"), unless terminated earlier in accordance with this Section 15. Thereafter, this Agreement shall automatically renew for successive terms of twelve (12) months each ("Renewal Term(s)", and together with the Initial Term, the "Term"), unless either party notifies the other party in writing of non-renewal no less than sixty (60) days prior to the expiration of the applicable term. Notwithstanding the foregoing, either party may terminate this Agreement if the other party breaches this Agreement and fails to cure such breach within fourteen (14) days of notice thereof. Without derogating from the above, Fornova may immediately terminate this Agreement if any assignment is made by Customer for the benefit of creditors, or if Customer is the subject of an involuntary local, state, or federal bankruptcy, insolvency, or similar proceeding that is not dismissed within sixty (60) days of filing, or if Customer files for voluntary bankruptcy, insolvency, or similar proceeding, or if Customer ceases its business operations or becomes unable to pay its debts when due, or enters into an agreement with its creditors providing for the extension or composition of debt. Upon termination or expiration of this Agreement for any reason: (i) the license granted to Customer in this Agreement shall expire, access to the Services shall be disabled by Fornova, and Customer shall discontinue all further use of the Services; (ii) Customer shall pay forthwith all amounts due and owing under this Agreement for the remainder of the applicable term and Customer shall not be entitled to a refund of any amounts paid hereunder, and (iii) Customer shall immediately cease using and return all property in its possession belonging to Fornova, including any and all data relating to the Services and any Confidential Information and all copies thereof and/or shall erase/delete any such data and information held by it in electronic form and shall confirm such deletion to Fornova in writing. Sections 5, 7, 8, 9, 12, 13, 14, 15 and 16 shall survive any termination or expiration of this Agreement.
This Agreement shall be construed and governed in accordance with the laws of England (without regard to its principles of conflicts of law), and the competent courts of London, England shall have exclusive jurisdiction and venue to adjudicate any conflict or dispute arising out of or relating to this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as to reasonably effect the intention of the parties. Customer shall not assign this Agreement or any rights or obligations hereunder, whether by operation of law or otherwise, without Fornova’s prior written consent. Assignment shall be deemed to include (i) a sale or transfer of all or substantial part of the assets of Customer to any person; (ii) Customer being merged or consolidated with any other person; and/or (iii) a change of control of Customer. With the exception of payment obligations, neither party shall be liable to the other party for any delay or failure in performance, to the extent such delay or failure is due to causes beyond its reasonable control regardless of whether such causes could have been foreseen. Customer agrees that Fornova may identify Customer as a Customer of Fornova and use Customer’s trademark and/or logo in promotional/marketing materials, press releases, and on Fornova's website for promotional purposes. This Agreement, including all attachments and exhibits, constitutes the entire agreement between the parties, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof. Except if explicitly otherwise set forth in an attachment or exhibit, in the event of any conflict between the main agreement and any attachments and exhibits thereto, the former shall prevail. This Agreement may be modified, amended, or supplemented, only in writing and signed by the duly authorised representatives of both parties. Any notices permitted or required under this Agreement shall be in writing, and shall be deemed given when delivered (a) in person, (b) by overnight courier, upon written confirmation of receipt, (c) by certified or registered mail, with proof of delivery, or (d) by facsimile or e-mail, when receipt is electronically confirmed. Notices shall be sent to the address set forth herein.