Last Updated 25th May 2018
a) The term "Net Affinity", refers to Net Affinity Limited, a company incorporated in Ireland, company number 323392, whose registered office is at Unit 1c, The Forum, Ballymoss Road, Sandyford, Dublin 18. (trading as Net Affinity).
b) The term "Services" refers to all services provided by Net Affinity from time to time including but not limited to creating, maintaining and hosting a website, receiving booking information via our booking engine, managing reservations and payments and responding to Customer clients via our reservation system and managing content on third party channels via our channel manager / CRS.
c) The term "Customer" refers to either: a) the person who registers for a Customer Account on his/her own behalf; or b) the organisation, where the person registers for a Customer account on behalf of an organisation.
d) The term "Customer Account" refers to the account which the Customer creates on Net Affinity.com in order to access and use the Services.
e) The term "Customer Website" refers to the website that is created by the Customer using our Services
f) The term "Property" refers to any form of accommodation, building, house boat, apartment, room, apartment blocks, houses or any other dwellings or rental space that is displayed by the Customer on the Customer Website or a third party channel and offered for rent using the Services.
g) The term "Content" means text, graphics, images, music, software, audio, video, information or any other form of data.
h) The term "Customer Content" refers to Content provided by the Customer as part of using the Services including but not limited to information (including photographs or illustrations) about a Property's amenities, suitability, pricing or availability.
2. Customer Account
a) To access and use the Services, the Customer must create a Customer Account with us. The Customer agrees to provide and maintain true, accurate, current and complete information at all times.
b) Where the Customer is an organisation, the person signing up for a Customer Account on its behalf warrants that he/she has the authority to bind the organisation to these Terms of Service.
c) The Customer, if an individual, must be at least 18 years of age to be eligible to use the Services.
d) The Customer is responsible for maintaining the confidentiality of its Customer Account, and shall not disclose its password to any third party.
e) The Customer is responsible for all activities that occur, and Content that is transmitted, under its Customer Account.
3. Limitation of Business Activity
a) We do not own or manage Properties and we do not act as real estate agents or travel agents for our Customers or their customers. We only provide a platform that allows Customers to create, edit and display listings for Properties on Customer Websites or third party channels, and to manage the booking and reservation of Properties. We do not take part in, or responsibility for, any rental transactions, booking arrangements or any property management issues. We are not a party to any rental contract.
c) The Customer is solely responsible for the operation of the Customer Website, including the business that is conducted in relation to the Properties, the statements and representations made by the Customer about the Properties, any interaction between the Customer and its users on the Customer Website, and the content (including user generated content) which is posted to or transmitted via the Customer Website.
d) The Customer further acknowledges that we have no control over any Content transmitted on the Customer Website or the third party channels (including initiation of the transmission or determination of the receiver of the transmission) and do not monitor or review such Content.
e) The Customer shall ensure that the scope of our role in relation to the Customer Website as described in this clause 3 shall be clearly communicated to users of its Customer Website, and that no statement made on the Customer Website or otherwise to the Customer's users misrepresents, or is likely to misrepresent, this.
4. Use of the Services
a) The Customer agrees to access and use the Services only to advertise Properties for rent. Any other use of the Services is expressly prohibited.
b) The Customer agrees to comply with all applicable laws and regulations with respect to its activities under these Terms of Service.
c) The Customer shall own all right, title and interest in and to the Customer Content and Content uploaded by the Customer's users, and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of such Content.
d) The Customer warrants that it will provide and maintain correct and up-to-date information about the state, features and availability of the Properties, and not to mislead the Customers' users about the same or any other detail about the Properties. The Customer acknowledges that information provided about the Properties will be made available to the public and may be sent to our partner websites for the purpose of advertising the Property.
f) If the Customer operates in a similar business to ours, we reserve the right to refuse to provide our Services to them and to terminate these Terms of Service immediately without notice
g) We may modify, replace, refuse access to, suspend or discontinue the Services, partially or entirely, at any time and in our sole discretion.
5. Trial Period
a) Customers that use the Services within a free trial period acknowledge and agree that the Services will, or may, automatically "time out" (that is to say, cease to operate) at the end of the trial period if the Customer has not at that time paid the applicable fees.
b) During the free trial period, we may terminate our contract with the Customer at any time and for any reason by giving notice to the Customer.
c) Without limiting the generality of clause 3 b), we reserve the right to delete any Content stored by us in relation to an expired trial period, without liability to you.
6. Prohibited Use
a) The Customer shall not:
- licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise make the Services available to any third party.
- access all or any part of the Services in order to build a product or service which competes with the Services.
- attempt to copy, modify, create derivative works of, display, transmit or distribute all or any part of the software applications used by us as part of the Services (except as may be allowed by any applicable law incapable of exclusion).
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software applications used by us as part of the Services (except as may be allowed by any applicable law incapable of exclusion).
b) Except where expressly otherwise permitted in these Terms of Service, the Customer is prohibited from:
- using or accessing Net Affinity and the Services in a manner that unfavorably affects the performance or proper functioning of Net Affinity and the Services, or any computer systems or networks used by net Affinity and the Services.
- impersonating anyone, or from misrepresenting or misstating facts about affiliation with any person, or from forging headers or manipulating identifiers so as to disguise the origin of the content transmitted through the Customer Websites.
- using, displaying, mirroring or framing NetAffinity.com, or any individual element within NetAffinity.com or the Services, Net Affinity's name, any Net Affinity trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without our express written consent.
- using any robot, spider, other automatic device or manual process to monitor, download, copy or keep a database copy of the Customer Content and Content made available through the Services and NetAffinity.com.
- sending any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation.
- and the Customer agrees to include similar provisions which are no less onerous than those stated in this clause 6. b) in its terms and conditions with its users
c) The Customer agrees not to post, upload, publish, submit or transmit any Customer Content that:
- infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy.
- violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability.
- is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive.
- promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group.
- is violent or threatening or promotes violence or actions that are threatening to any person or entity.
- promotes illegal or harmful activities or substances.
- and the Customer shall include similar provisions which are no less onerous than those stated in this clause 6. c) in its terms and conditions with its users.
d) We reserve the right to withhold, remove and or delete any Customer Content, with or without notice, where we reasonably suspect that such Customer Content breaches these Terms of Service, and the Customer shall indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Customer Content posted to, or linked to, the Customer Website or a third party channel breaches these Terms of Service
e) We further reserve the right to modify any Customer Content in connection with the optimization of the Customer Website. Further information about this right and other rights which you grant to us in relation to Customer Content is set out in clause 13. c).
7. Fees, Payments, Refunds
a) Subject to clause 5, our Services are provided for the fees described for each service on NetAffinity.com and the Customer is liable for such Fees. Fees are exclusive of value added tax.
b) We reserve the right to change these fees and introduce new charges any time, upon at least 30 days prior notice to the Customer, which notice may be provided by e-mail. Fee changes will take effect in the Customer's next contract term.
c) The Customer may agree to a one (1) month, twelve (12) month or twenty-four (24) month contract term with us, where the payment is made in advance for the agreed contract term. The Services will be provided immediately after we have received the payment.
d) The Customer can opt to upgrade or downgrade the Services to any other service level that we are offering for sale at any time during his/her contract term. In the event of a Service upgrade, the new fee will immediately apply and the Customer will be charged in full for the pro-rata part of that contract term. In the event of a Service downgrade, the new fee will only apply after the contract term. No discount credit will be given.
e) The contract term will automatically renew for additional contract terms until explicitly cancelled by the Customer. Contract renewals must be paid for by credit card. The Customer acknowledges that we will not send it a notice before the contract term is renewed and that it is the Customer's responsibility to cancel the contract with us if the Customer no longer wishes to receive the Services. Cancellation must be issued via the Customer's Account or by emailing support@NetAffinity.com. Any cancellation issued via the Customer's Account must be done at least one (1) day prior to the end of the contract term. Any cancellation issued via email must be done five (5) days prior to the end of the contract term to allow for adequate processing time.
f) Services cancelled at the Customer's request prior to the completion of the contract term are not subject to a refund.
g) If the Customer fails to comply with any of the provisions of these Terms of Service and we terminate the Customer's Services prior to the completion of the contract term, we will not refund any payments.
h) The Customer agrees to us, or our third party service providers, storing the Customer's payment card information and charging that payment card (i) a fee for any applicable Services billed on a monthly, yearly or biyearly basis, (ii) any other fees for Services the Customer may purchase in addition from us, (iii) any increase in fee pursuant to clause 7. b) or d) of these Terms of Service, and (iv) any applicable taxes in connection with the Customer's use of the Services. If the payment card the Customer provides expires or fails to make the payment and the Customer does not provide new payment card information or cancel the Customer Account, we may, without liability to the Customer, disable the Customer Account and access to all or part of the Services and we shall be under no obligation to provide any or all of the Services until a new payment card is provided or payment of a due amount is able to be charged.
i) All fees shall be paid in U.S. dollars, British pounds or EU euros.
a) Our contract with the Customer shall commence on the date the Customer creates a Customer Account and shall continue until terminated in accordance with this clause 8.
b) Our contract with the Customer may be terminated by the Customer, without cause, by following the cancellation procedures set forth in clause 7. e).
c) Our contract with the Customer may be terminated by us, without cause, at any time and (subject to clause 4. f)) upon one month's notice to the Customer.
d) Our contract with the Customer may be terminated by us at any time, upon notice to the Customer (including via email), if:
- the Customer fails to comply with any of the provisions of these Terms of Service.
- the Services are discontinued.
- we lose the right to provide the Customer with the Services or where the provision of the Services or a particular Service becomes unlawful.
e) Upon termination:
- the Customer shall immediately cease use of the Services.
- the Customer acknowledges we have the right to delete all data, files, or other information that is stored in the Customer's Account.
- any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected.
9. Links To Third Party Websites And Third Party Services
b) NetAffinity.com may also contain the services of third parties (including but not limited to domain registration services) which will be provided to the Customer pursuant to such third parties' terms and conditions. We will provide the Customer with links to these third parties' terms and conditions. The Customer's acceptance of these terms and conditions may be required to make all services via NetAffinity.com available to the Customer.
a) The Customer acknowledges that the Services have not been developed to meet its individual requirements, and that it is therefore the Customer's responsibility to ensure that the facilities and functions of the Services meet the Customer's requirements.
b) We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
c) The Services and NetAffinity.com are provided on an "AS IS", "AS AVAILABLE" basis.
d) We make no warranty that the functionality of the Services will be uninterrupted or error free, that defects will be corrected or that the Services or the servers that makes it available are free of viruses or anything else which may be harmful or destructive.
f) Except as expressly stated in these Terms of Service, to the fullest extent permitted by law, all other warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from these Terms of Service.
Intellectual Property Rights
The parties agree that all Intellectual Property rights arising in connection with the provision of the Services by The Supplier during the term of this Contract shall vest solely with the Supplier. The Client acknowledges pre-existing Intellectual Property is and shall remain solely vested with the Supplier. The Client confirms that it shall do any and all things, including the execution of documents and applications if required, to ensure and confirm that all developed Intellectual Property vests and can vest with The Supplier and furthermore hereby assigns to The Supplier all Intellectual Property in which it may have an interest which is created pursuant to the Contract. If any Client Intellectual Property is incorporated into the Services or Intellectual Property created as a result of the Services the Client hereby grants The Supplier a perpetual, worldwide irrevocable licence to use, adapt and commercialise same. IP (Intellectual Property): All Account Activity is confidentially commercial IP and is retained by Net Affinity at all times. Should a client wish to change provider, it is the responsibility of the new provider to create new accounts. The Client shall indemnify and hold harmless The Supplier against all damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the use by The Supplier of any materials or information provided to it by the Client pursuant to this Contract infringes any Intellectual Property right of that third party. "Intellectual Property" means discoveries, concepts, ideas and improvements to existing technology whether or not written down or otherwise converted to tangible form, patents, designs, trade-marks, trade names, goodwill, copyrights, all rights in inventions, designs, database rights, processes, topography and semi-conductor chip rights, formulae, notations, improvements, know-how, goodwill, reputation, moulds, get-up, computer programmes and analogous property (whether in object code or source code), plans, models, literary, dramatic, musical and artistic works and all other forms of industrial or intellectual property (in each case in any part of the world and whether or not registered or registerable and to the fullest extent thereof and for the full period thereof and all extensions and renewals thereof) and all applications for registration thereof and all rights and interests, present and future, thereto and therein.
Warranty and Limitations
The Supplier warrants that it is entitled to enter into this Service Level Agreement and that it will provide the Services in accordance with this Service Level Agreement. The Supplier shall not be liable for a failure caused by:
- Software other than software developed and owned by The Supplier.
- Modifications or customisation made by or on behalf of the Client without the authorisation of The Supplier.
- Telecommunications, communications or electrical power outages, failures or delays.
- Failures internal to, or factors internal to, the Client and/or the Client group or such failures or factors within the contract and responsibility of the Client.
- Third party processes, practices, algorithms, search result categorisation models and techniques.
- Any breach of the GDPR or Data Protection Law by the Client including but not exclusively the movement of data belonging to any third parties from outside the EU and in particular Third Countries as defined in the GDPR.
If the Supplier receives a written notice from the Client identifying a breach of warranties, or otherwise becomes aware of its failure to comply with the warranties, then The Supplier shall at its own expense, promptly remedy such breach or failure provided that The Supplier shall have no liability or obligations under the warranties unless it shall have received written notice of the defect or error within one (1) week of such an error or breach occurring.
To the extent permitted by applicable law, The Supplier excludes all conditions, terms, representations (other than fraudulent or negligent representations) and warranties relating to the Services, either express or implied, that are not expressly stated herein, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result.
The Supplier makes no warranty that the Services, development, optimisation, third party hardware or software, hosting, clearing, aggregation etc. or operation thereof, are error free, that particular results are guaranteed or that use will be uninterrupted, and the Client acknowledges and agrees that the existence of such errors and results shall not constitute a breach of this Service Level Agreement.
The Supplier does not give any warranty in respect of third party products, hardware, software services, clearing, ranking, optimisation, or alteration to same, which occur from time to time.
The Supplier does not guarantee that the Client or any third parties will be able to access a website created or hosted by The Supplier at any particular time, nor that particular websites will be included or rated at a particular level in any particular search engines or search results. Optimisation, marketing and other services are provided on an "as-is, as-available" basis. The Client acknowledges that the need for routine maintenance and error correction as well as technical changes to search engine technology and models may result in loss of ranking or downtime and also that The Supplier cannot control the timing or volume of results or attempts to access The Supplier's or any other party's websites, servers, search results, connection speeds, unavailability or storage capacity. The Supplier shall have no liability under or be deemed to be in breach of this Service Level Agreement for any delays or failures in the performance of this Service Level Agreement or impaired functionality or commercialization which result from circumstances beyond the reasonable control of The Supplier, including in particular, telecommunications shortages or outages; third party telecommunication or Internet services providers; third party websites; third party ranking or search engines; changes of search engine or internet service providers, third party rankings, optimisations, technology, algorithms or codes; failure or shortage of power supplies; the act or omission of any telecommunications or Internet carrier or service provider, operator or administrator delay or failure in manufacture, production or supply by any party of equipment or services. Net Affinity will endeavour to work in conjunction with the relevant 3rd party to resolve problems as quickly as possible on the explicit understanding that resolution times are ultimately dependent on the 3rd party involved.
The Supplier makes no warranty that the Services, development, optimisation, third party hardware or software, hosting, clearing, aggregation etc. or operation thereof, shall be delivered exclusively to the Client and the Client agrees that The Supplier is free to work with any party and offer services to that party prior, during, and after the term of this Service Level Agreement.
The Supplier shall use reasonable endeavours to perform support or remedial services so as to minimize business disruption so far as reasonably practicable. The Supplier gives no warranties and makes no representations express or implied, statutory or otherwise regarding the accuracy, quality or completeness of content or its fitness for any purpose and excludes any liability relating to it.
The Supplier makes no other warranty, terms, representations or conditions in relation for Services provided under this Service Level Agreement whether as to performance, functionality or otherwise and in particular, without prejudice to the foregoing, does not warrant that even subsequent to software support the operation of the Services shall be uninterrupted, error free or optimised.
Risk in hardware, enhancements, error correction, releases, optimisation provided under this Service Level Agreement will pass to the Client upon the date of actual delivery to the Client and/or go live (whichever is sooner).
The Supplier does not guarantee that the Client or any third parties will be able to access a website or Service and has no control over timing or failure of attempts to access websites or Services at any particular time.
Website, Marketing and Hosting
The Client is responsible for maintaining the confidentiality of accounts and passwords and for restricting access and to prevent any unauthorised access. Where the Client has access to usernames and password the Client accepts responsibility for all activities that occur under its website(s), and indemnify the Supplier.
The Supplier will do its utmost to ensure that availability of a website(s) will be uninterrupted and that transmissions will be error-free. However, due to the nature of the Internet, this cannot be guaranteed. Also, access to the Services may also be occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of new facilities or services.
The Client is responsible for all electronic communications and content sent from its Clients and users and must use the website and Services and for lawful purposes only.
The Client must not use the website and Services for any of the following;
- for fraudulent purposes, or in connection with a criminal offence or other unlawful activity.
- to send, use or reuse any material that is illegal, offensive, abusive, indecent, defamatory, obscene or menacing; or in breach of copyright, trademark, confidence, privacy or any other right; or is otherwise injurious to third parties; or objectionable material; or which consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any "spam".
- to cause annoyance, inconvenience or needless anxiety
The Client's comments and content must not be illegal, obscene, abusive, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties, or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam".
The Client represents and warrants that it owns or otherwise controls all of the rights to the content that it provides or posts; that, as at the date that the content or material is submitted the content and material is accurate and the use of the content and material you supply does not breach any applicable policies or guidelines and will not cause injury to any person or entity (including that the content or material is not defamatory). The Client agrees to indemnify the Supplier and its affiliates for all claims brought by a third party against the Supplier or its affiliates arising out of or in connection with a breach of any of these warranties.
The Client is responsible for all orders to purchase a product or service from its Services and websites.
The Supplier is not responsible for examining or evaluating, and does not warrant or endorse the offerings of any of these businesses or individuals, or the content of websites. The Supplier does not assume any responsibility or liability for the actions, products, and content of any of these and any other third-parties.
The Client will be responsible for any losses suffered as a result of it breaching these conditions if the losses were reasonably foreseeable when the Client commenced using the Services or website. The Supplier will not be responsible for any business loss (including loss of profits, revenue, contracts, anticipated savings, data, goodwill or wasted expenditure) or any other indirect or consequential loss that is not reasonably foreseeable to both you and us when the Client commenced using the website or when a contract for the sale of goods was formed.
The Supplier reserves the right to make changes to the website, policies and conditions at any time. The Client will be subject to the policies and conditions of use & sale in force at the time that it uses the website or order goods, unless any change to those policies or these conditions is required to be made by law or government authority (in which case it will apply to orders previously placed). If any of these conditions is deemed invalid, void, or for any reason unenforceable, that condition will be deemed severable and will not affect the validity and enforceability of any remaining condition.
The Supplier will not be held responsible for any delay or failure to comply with obligations under these conditions if the delay or failure arises from any cause which is beyond its reasonable control. This condition does not affect Clients statutory rights.
Any online advertising or social media campaigns managed or transferred to the or by the Supplier shall be and remain in the intellectual property of the Supplier. Should there be a termination of the Service Level Agreement the access to the online advertising or social media campaigns managed by the Supplier will not be granted to the Client nor transferable to any 3rd party. Online advertising campaigns covers all accounts managed in the various platforms online which may include but is not limited to Google AdWords, MSN AdCenter, Yahoo! Search Marketing, Facebook, Twitter, LinkedIn, Myspace, Flipto, Flickr, YouTube, Digg, StumbleUpon, Reddit, Del.icio.is or any other platform that the Supplier engages in.
The Supplier shall not be liable for any claim for damage to, loss of or costs in respect of any consequential or indirect loss including without limitation loss of profit, revenues, goodwill, anticipated savings or business opportunities.
The Supplier will not be liable to the Client for any loss or corruption of data, software or database configuration held by the Client to the extent that it could have been avoided by the Client keeping adequate backup copies of its data, software or database configuration in accordance with best data processing practice.
Notwithstanding anything to the contrary in this Contract, the Supplier's liability to the Client for death or personal injury caused by the negligence of The Supplier, its employees, agents or sub-contractors for fraud (including without limit, fraudulent misrepresentation) is not limited (but nothing in this clause confers any right or remedy upon the Client to which it would not otherwise be entitled). This clause has continuing effect after termination of this Contract.
Save in respect of claims for death or personal injury arising from The Supplier's negligence, in no event will The Supplier be liable for any damages resulting from loss of data or use, lost profits, loss of earnings, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of The Supplier whether such damages were reasonably foreseeable or actually foreseen.
Whereas the Supplier and the Client (hereinafter referred to together as the "Parties") for their mutual benefit wish to exchange certain information of a confidential nature in respect of discussions between them in consideration of which the parties hereto agree as follows:
Confidential Information and Confidential Materials
"Confidential Information" means information of a party to this Service Level Agreement ("Disclosing Party") (whether marked as confidential or not) disclosed to the other party ("Receiving Party") as being confidential or which, under the circumstances surrounding disclosure should be treated as confidential or which is disclosed to or learned by the Receiving Party through observation or examination including, without limitation, all manuscripts, copies and versions, and parts thereof, publications (whether in draft or finalised form), records, text, accounts, software (whether in object code or source code), templates, agreements, arrangement, practices, banking arrangements, trade secrets, proposals, business plans, know-how, inventions, techniques, processes, Client lists, financial information, forecasts, analyses, compilations, sales and marketing plans, reports, market research, interpretations, manuals, handbooks, pamphlets, booklets, books, studies, designs, drawings and any other material bearing or incorporating any information in relation to the proposal of any documents, books, records, data, software (whether in object code or source code), hardware, peripherals, brochures, documents or literature of the Disclosing Party. Confidential Information includes, without limitation, information in tangible or intangible form relating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing Party product, Disclosing Party's business policies or practices, and information received from others that Disclosing Party is obligated to treat as confidential. Confidential Information includes any information, acquired by either party in the course of or in connection with the performance of the Services or in connection with this Service Level Agreement which is not publicly available, but does not include information already lawfully in the possession of the recipient, or information legally acquired by the recipient from a third party, otherwise than in the course of the performance of the Services (all "Confidential Information").
Except as otherwise indicated in this Service Level Agreement, the terms "Disclosing Party" and "Receiving Party" also include all Affiliates and/or agents of each party and "Affiliate" means any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, control, are controlled by, or are under common control with a party.
For the purposes of this Service Level Agreement, Confidential Information shall not be considered to be Confidential Information if such information is in or passed into the public domain other than by breach of this Service Level Agreement or can be shown by the Receiving Party to have been known to them prior to the disclosure by the Disclosing Party or became known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party.
The Receiving Party shall not disclose any Confidential Information to third parties for two (2) years following the date of its disclosure by Disclosing Party, except to Receiving Party's employees, interns, agents, independent contractors and consultants on a need-to-know basis, provided that Receiving Party has executed appropriate written agreements with each such individuals sufficient to enable compliance with all the provisions of this Service Level Agreement; or in accordance with a judicial or other governmental order, provided Receiving Party shall give Disclosing Party reasonable opportunity to seek a protective order or equivalent, or obtain written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.
The Receiving Party shall take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, to keep confidential the Confidential Information.
Confidential Information shall not be disclosed, reproduced, summarized and/or distributed by the Receiving Party except in pursuance of Receiving Party's business relationship with Disclosing Party, and only as otherwise provided hereunder.
Receiving Party may not reverse engineer, decompile or disassemble any software disclosed to Receiving Party except as expressly permitted by applicable law.
Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information, or any other breach of this Service Level Agreement by Receiving Party and its employees, interns, agents, independent contractors and consultants, and will cooperate with Disclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
Receiving Party shall, at Disclosing Party's request, return all originals, copies, reproductions and summaries of Confidential Information and other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party's option, certify destruction of the same. Notwithstanding anything to the contrary in this paragraph, the parties shall not be obligated to erase Confidential Information that is contained in an archived computer system backup that was made in accordance with a party's security and/or disaster recovery procedures; provided, however, that any such Confidential Information contained in such archived computer system backup shall be subject to the terms and conditions of this Service Level Agreement.
The Receiving Party acknowledges that it has no claim, whether at law, by statute or otherwise, to any intellectual property rights of the Disclosing Party.
Rights and Remedies
The Receiving Party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. The Receiving Party agrees to indemnify and hold the Disclosing Party harmless from and against any loss or liability to include without prejudice to the generality of the foregoing loss of profit and earnings for a period of not less than five (5) years resulting from, or arising in connection with, the unauthorized use or disclosure of the Confidential Information by the Receiving Party or any person to whom disclosure is permitted.
All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information, Disclosing Party does not grant any express or implied right to Receiving Party to or under Disclosing Party patents, copyrights, trademarks, or trade secret information. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents, copyrights, trademarks, or trade secrets except as otherwise provided herein.
If the Disclosing Party provides any computer software and/or hardware as Confidential Information under the terms of this Service Level Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and providing feedback and any other expressly authorized purpose provided for by this Service Level Agreement to the Disclosing Party. Unless otherwise agreed by the parties, if either party provides software and/or hardware as Confidential Information under this Service Level Agreement, such software and/or hardware is provided "as is" without warranty of any kind and Receiving Party agrees that neither Disclosing Party nor its the Suppliers shall be liable for any damages whatsoever relating to Receiving Party's use or inability to use such software and/or hardware.
The terms of confidentiality under this Service Level Agreement shall not be construed to limit either party's right to independently develop or acquire products without use of the other party's Confidential Information. However, the Client shall not be free to use for any purpose the know how resulting from access to or work with such Confidential Information provided to it by the Supplier (The Supplier) in the event of termination.
This Service Level Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified except by a written agreement dated subsequent to the date of this Service Level Agreement and signed by both parties. None of the provisions of this Service Level Agreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their Affiliates, agents, or employees, but only by an instrument in writing signed by an authorized officer of Disclosing Party and the Receiving Party. No waiver of any provision of this Service Level Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.
If either party employs attorneys to enforce any rights arising out of or relating to this Service Level Agreement, the prevailing party shall be entitled to recover reasonable legal fees on a solicitor client basis. This Service Level Agreement shall be construed and governed by the laws of Ireland and will be subject to the jurisdiction of the Courts of Ireland. Client waives all defences of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule.
If any provision of this Service Level Agreement or part thereof shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions or parts thereof shall remain in full force and effect.
This Service Level Agreement shall be governed by the laws of the Republic of Ireland and the parties submit to the non-exclusive jurisdiction of the Irish courts.
The parties hereby undertake to comply with the provisions of the Data Protection Act 1988, 2003 and Act 2011 and any related legislation or regulation adopted insofar as the same relates to the provisions and obligations of this Service Level Agreement. The parties confirm that they are aware of the provisions contained in the GDPR and Data Protection Law. For the avoidance of doubt the Client shall be the data controller responsible for all data and information collected on, via or in relation to the Services. The Client shall be a data controller in relation to any data and information it receives from the websites, The Supplier or from users of the Services or websites. For the avoidance of doubt the Supplier may, collect, hold, control, use, transmit and share with sub-processors data obtained from and about the Client and visitors to the websites in the course of providing the services and any websites. The Supplier will not transfer any data outside of the EU nor to any Third Countries as defined in the Data Protection law or the GDPR without first ensuring the appropriate assurances are in place. Client consents to such data being so used.
The Supplier shall not be liable to the Client or be in breach of its obligations to the Client if by reason of any cause beyond its reasonable control it is delayed in performing or fails to perform the Services or any part of them. Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, strikes (of its own or other employees), electrical or communication outages; insurrection or riots, embargoes, container shortages, wrecks or delays in transportation, inability to obtain supplies and raw materials, requirements or regulations of any civil or military authority (an "Event of Force Majeure"). Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure. If a default due to an Event of Force Majeure shall continue for more than 12 weeks, then the party not in default shall be entitled to terminate this Service Level Agreement. Neither party shall have any liability to the other in respect of the termination of this Service Level Agreement as a result of an Event of Force Majeure.
Access to Clients Data and Systems
The Client shall afford the Supplier's employees, agents and sub-contractors such access to the Client's third party providers as may be necessary for the performance of the Services. Access referred to in this clause is to be at reasonable times and on reasonable notice.
The failure or delay by either party to exercise or enforce any of its rights or to enforce any obligation which the other party is in breach of under this Contract is not a waiver of that right and nor will it bar enforcement of that obligation (or any similar or other obligation) at that time or at any subsequent time.
The Client may not assign, transfer, mortgage, sub‑licence, charge or otherwise dispose of or encumber this Contract, or any of its rights or obligations under it, without the prior written consent of the Supplier. Neither party may assign its rights and obligations under this Contract without the prior written consent of the other which consent shall not be unreasonably withheld. The Supplier will be free to sub-contract any or all of its rights and obligations under this Contract as it in its absolute discretion sees fit.
Net Affinity reserve the right to update, change, edit or alter the above terms and condition in respect of market, legal or company led factors and will supply a written copy of any change to each client. By agreeing to these terms you hereby agree acceptance of the current and any future terms and conditions.