AGREEMENT
This
agreement (further: „the Agreement”) is concluded
BETWEEN:
Romecityapartments
snc, represented by Stefano Sessa, with its VAT registration number
and registration number at the “registro delle imprese”
of Rome, Italy, being 08181701007. Legal address of the company: Via
Guglielmo Calderini, 68 – 00100 Roma. Operational office
address: Via Quintino Sella, 23 – 00187 Roma. Tel. 0642016891 –
fax: 0642390449.
HEREAFTER
REFERRED TO IN THIS AGREEMENT AS “RCA”
AND
the
applicant to the Affiliate Program,
HEREAFTER REFERRED TO IN
THIS AGREEMENT AS “Affiliate"
hereafter
in this Agreement referred to jointly as the “Parties”.
WHEREAS:
RCA
provides services including on-line accommodation reservation,
RCA
wishes to cooperate with Affiliate in order to increase number of
accommodation reservations,
Affiliate
is willing to disseminate information concerning RCA services on its
Internet site, in exchange for fee,
both
parties wish to cooperate in good faith and in accordance with the
provisions of this Contract
PARTIES
ACCORDINGLY DECIDE AS FOLLOWS:
1.
DEFINITIONS
The
Parties decide that the terms below shall have the following meaning:
(i)
“Accommodation Database” – database processed by
RCA including information on availability and reservation status of
RCA Accommodation;
(ii) “Affiliate Website” –
any website operated by Affiliate;
(iii) “Agreement”
– this agreement
(iv) “Client” means a
person interested in reservation of RCA Accommodation;
(v)
“Rules of cancellation” means rules of financial
calculation applied by RCA towards Clients cancelling
reservation;
(vi) “RCA Accommodation” means
accommodation offered by RCA;
(vii) “RCA IP” –
means RCA trademark, commercial name and RCA Website address, as set
forth in Appendix no 1 to this Agreement;
(viii) “RCA
Website” – means main website operated by RCA.
2.
SUBJECT MATTER
Under
this Agreement RCA undertakes to pay Affiliate a fee conditional upon
sale of RCA Accommodation to a Client, provided that the Client has
made his reservation for RCA Accommodation indirectly, via Affiliate
Website.
3.
REPRESENTATIONS
3.1
Each Party represents that it is solvent. Each Party represents that
neither provisions of law, administrative decision, judicial
decision, nor contract with a third party constitutes an obstacle for
the that Party’s performance under the Agreement.
3.2
The Parties represent that they are and shall remain separate legal
entities. The Parties declare that this Agreement is not to be
construed as a civil partnership agreement.
3.3 Affiliate
represents and warrants that it holds the right to operate Affiliate
Website. Affiliate represents that Affiliate Website is set up in
accordance with the relevant law and that Affiliate Website does not
infringe upon rights of any third party.
3.4 RCA represents
and warrants that it holds the right to operate RCA Website. RCA
represents that RCA Website is set up in accordance with the Italian
law and that RCA Website does not infringe upon rights of any third
party.
3.5 Each Party represents that its performance under
the Agreement is covered by the scope of its registered commercial
activity.
3.6 The Affiliate shall be solely liable vis-a-vis
public tax authorities and other administrative bodies with respect
to his performance under the Agreement.
4.
RIGHTS AND OBLIGATIONS OF THE PARTIES
4.1
General provisions
4.1.1 RCA grants Affiliate non-exclusive
right to process Accommodation Database on Affiliate Website in
order to create demand for RCA Accommodation (further: “Indirect
reference”).
4.2 Indirect reference
4.2.1
Affiliate may process Accommodation Database in order to display RCA
Accommodation data on Affiliate Website and book RCA Accommodation
for Clients in accordance with the Accommodation Database, subject to
restrictions set forth below.
4.2.2 Affiliate is granted right
to arrange the display of relevant RCA Accommodation data on
Affiliate Website in a suitable manner. However, Affiliate shall be
solely liable vis-a-vis RCA and Clients for presenting on Affiliate
Website RCA Accommodation data:
(i) in a false manner, or
(ii) out-of-date, or
(iii) from the source other than RCA
(further: “Misrepresentation”).
4.3.3 RCA shall
be entitled to indemnification from Affiliate with regard to damages
resulting from Misrepresentation.
4.3.4 RCA Accommodation data
presented by means of Indirect reference shall be accompanied by the
Rules of cancellation and RCA “Terms and Conditions”, in
a manner legally binding the Client in respect of the Rules of
cancellation.
4.3.5 Gaining access and processing
Accommodation Database shall be effected by Affiliate in a manner set
forth in the Appendix 2 to Agreement. RCA undertakes to enable
Affiliate to gain access to Accommodation Database within the
framework set forth in the Agreement.
4.4 Licence
4.4.1
For the purposes of Indirect reference, RCA grants Affiliate
non-exclusive licence on the following fields:
(i) licence to
use RCA IP,
(ii) licence to process Accommodation Database
(further: “Licence”).
4.4.2 The Licence is limited
to the territory of the state in which Affiliate has its seat.
4.4.3
Affiliate shall have no right to grant the Licence or its part to any
other party, unless Affiliate obtains RCA’s consent in a
written form, under the pain of nullity.
4.4.4 The Licence
shall be automatically revoked once the Agreement is terminated,
rescinded or otherwise ceases to bind any of the Parties. In such
situation, Affiliate shall be bound to cease any activity having
regard to the subject matter of the Licence, in particular Affiliate
shall be bound to immediately remove RCA’s trademarks,
commercial name and RCA Website address from Affiliate
Website.
4.4.5 The Agreement does not transfer any other
rights to Affiliate, in particular the Agreement does not transfer
RCA IP, Accommodation Database property rights or any other rights in
any IP or any databases to Affiliate.
4.4.6 Affiliate
undertakes to protect RCA IP and Accommodation Database. In
particular, Affiliate undertakes to deny the access and protect
Accommodation Database from intrusion of any third party or other
unauthorised person. Affiliate undertakes to inform RCA to any
infringements or attempted infringements upon RCA IP or Accommodation
Database.
4.4.7 Affiliate acknowledges that RCA IP and
Accommodation Database are subject to legal protection as a sole
property of RCA and that RCA is entitled to modify and assign RCA IP
and Accommodation Database.
4.4.8 Affiliate acknowledges that
use of RCA IP and Accommodation Database contrary to the Agreement
may give rise to civil and criminal liability on the part of
Affiliate.
4.5 Additional duties, disclaimers and
liability
4.5.1 All Direct references shall be created by
Affiliate in an aesthetic manner. Direct references and Indirect
references shall not be accompanied or set as a background or put in
the context of visual or verbal elements which presence in the
Internet is contrary to the law, Internet ethics or commonly
acknowledge customs or infringe upon rights of third parties.
4.5.2
Affiliate shall not enjoy the status of RCA’s exclusive agent
neither with respect to territory nor group of Clients.
4.5.3
RCA shall not bear any liability in case of malfunction of RCA
Website or Accommodation database.
5.
FEE
5.1 Affiliate shall be entitled to fee calculated
on the basis the value of the lease of RCA
Accommodation to a given Client, directed to RCA Website by mean of
booking RCA Accommodation by mean of Indirect reference (further:
“Fee”). The Fee shall be due provided that the Client,
reserves RCA Accommodation and pays the rent in full amount.
5.2
The Fee shall amount to XX% of the value of the lease of RCA
accommodation booked by the affiliate, reduced by RCA’s
operational costs. RCA’s operational costs shall include credit
card commissions and cash transfer costs.
5.3 The Fee shall be
due at the end of the month following the month in which RCA gained
right to its commission. Affiliate shall be entitled to inspect the
status of the Clients’ reservations on the basis of the
Accommodation database. The Parties agree that granting Affiliate an
access to the Accommodation database as set forth in this provision
of the Agreement meets the requirements set forth in the Italian
Civil Code.
5.4 The Fee shall be transferred to Affiliate upon
delivery of the commercial invoice.
6.
CONFIDENTIALITY
6.1 The Parties shall
keep the terms of the Agreement confidential. Information conveyed by
one Party to the other shall be used solely for the purpose resulting
directly from the execution of the provisions of this Agreement. Any
information, referred to above, may be disclosed to a third party
only upon gaining consent of the second Party, unless a duty to
disclose results from the binding provisions of law.
6.2 The
provisions of this part of the Agreement shall be applied within the
5 years following the moment in which given information was disclosed
to the second Party, but not shorter than 10 years since the
conclusion of this Agreement.
6.3 Each Party shall be liable
for any damages resulting from the breach of duty to keep information
confidential.
7.
DURATION AND TERMINATION OF THE AGREEMENT
7.1
General provisions
7.1.1 The Agreement is concluded for 1
year.
7.1.2 Upon the lapse of each 1 year period, the duration of
the Agreement is to be extended for next period of 1 year, unless
notice to other effect is produced and delivered by any of the
Parties acting within the lapsing period.
7.1.3 The Agreement may
be terminated:
(i) in any time – without notice of
termination, with immediate effect,
(ii) by the mean of a
notice of termination.
7.1.4 Termination of the Agreement with
or without the notice of termination shall take effect upon delivery
to the second Party of the statement of one of the Parties, drawn in
the written form under the pain of nullity.
7.2 Termination of
the Agreement without notice
7.2.1 This Agreement is subject
to immediate termination, without prejudice to the rights of any of
the Parties, in case:
(i) any of the Parties recurrently
breaches its obligations set forth in the Agreement; or
(ii)
RCA fails to perform its obligation to pay any due invoice,
regardless of delivery of the written notice to this fact by
Affiliate and fixing additional 1 month term to pay.
7.2.2 In
case the Agreement is terminated due to Affiliate’s breach,
Affiliate shall not be entitled to any outstanding fee or fee due in
future.
7.3 Termination of the Agreement with notice
7.3.1
Each Party may terminate the Agreement further to 3 months prior
notice.
8.MISCELLANEOUS
8.1
Assignment of rights and obligations
8.1.1 Affiliate shall not
assign any of its rights and obligations resulting from the Agreement
to the third parties without prior consent of RCA, drawn in the
written form under the pain of nullity.
8.1.2 RCA is free to
assign any of its rights and obligations resulting from the Agreement
to the third parties without prior consent of Affiliate. The
assignment shall be effective upon the delivery of the assignment
notice to Affiliate.
8.2 Amendments
8.2.1 All
amendments to the Agreement shall be made in the written form under
the pain of nullity.
8.3 Salvatory clause
8.3.1 Should
any provision or part of the provision of this Agreement be declared
invalid, the rest remains in force while the Parties shall undertake
such steps as will be necessary in order to achieve the goals and
purposes of the Agreement in some other, legally acceptable, manner.
8.4 Resolution of the disputes
8.4.1 Any disputes that
may result from the application of the Agreement shall be resolved by
the Parties by means of negotiations led in good faith. Each Party
shall undertake an attempt to negotiate the dispute on the basis of a
written request, served by the other Party.
8.4.2 Should
negotiations between the Parties fail, the dispute will be resolved
by the Italian court in the RCA’s registered seat
district.
8.5 Third parties
8.5.1 The Agreement shall
not be construed as giving rise to any rights or claims on the part
of any third party.
8.6 Applicable law
8.6.1 The
Italian law shall be applicable to this Agreement.
Appendix
no 1 to the Agreement
RCA
IP consists of:
Names,
trade marks, logos, symbols, other commercial names, addresses and
names of websites, sub-websites and internet domains; in
particular:
Logos, names, commercial names and trademarks of:
RCA
Internet addresses::
www.romecityapartments.com
Addresses,
telephone and fax numbers of the aforementioned companies
Graphic
as well as textual contents of the elements listed in section 1,
that fall under copyright protected categories, in particular:
graphic and textual descriptions concerning the apartments and other
types of RCA Accommodation; banners; maps; the general pattern of
the layout of specific elements, fragments of the source code of the
aforementioned, in different programming languages; the contents of
translations, agreements and contracts etc.
Appendix
no 2 to the Agreement
Partner’s
accessing any data and materials, RCA
IP etc., is clearly described and is pursued and performed by means
of the panel available at the www.romecityapartments.com site, in a
default manner, according to the instructions available there or
provided by an appropriate RCA employee. Any accessing through
hacking, inappropriate or incorrect use, circumventing security
measurements and system, access ways and manners as well as tools
intended, designed and created specifically and solely for this
purpose, is forbidden.
