These general terms and conditions (“Terms”) form an integral part of the business agreement (“Business Agreement” which together with the Terms is referred to as the “Agreement”) entered into between a business and Discover Paros member card (each referred to as a “Party” and together referred to as the “Parties”).
In addition to the definitions set forth elsewhere in this Agreement, the following definitions apply to this Agreement
definitions, unless the contrary intention appears:
“Discover Paros member card Platform ” means the Discover Paros member card website(s), applications, tools, platforms and/or other means on which the Service is available.
“Customer Service” means the Discover Paros member card customer service department that may be contacted at email@example.com or any other similar address as stated in this Agreement.
”Business” means this party .
“Data Controller” means the natural or legal person who alone or in cooperation with others determines the purpose and means of processing Personal Data.
“Visitor” means a visitor to the Platform(s) or a visitor/customer of a business
“Intellectual Property Right” means any patent, copyright, copyright, invention, database author’s rights, design right, registered design, trademark, trade name, trade name, brand name, trademark, logos, service mark, know-how, utility model, unregistered design or, where applicable, any application for such a right, know-how, trade or business name, domain name (by any suffix, for example com,. nl,. fr,. eu, etc.) or any other similar right or obligation, whether registered or not, or any other industrial or intellectual property right existing in any territory or jurisdiction in the world.
“Online Marketing” means marketing to the general public online, by any means, including mobile applications. This definition specifically excludes communication by email, SMS and direct messages not addressed to the general public.
“Personal Data” means any information relating to an identified or identifiable natural person (including customer and credit card data).
“Platforms” means the website(s), application(s), tools, platforms and/or other means of Discover Paros member card and its affiliates and business partners generally, through or on which the Service is made available.
“Published Online” means made available to the general public by any means, including mobile applications. In the case of prices, publication shall include the display of actual prices or sufficient detail for the customer to calculate prices.
‘System’ means the system (XML) that is accessed by the business to use and exploit the services, functions and management of the business on the Platform (including descriptions, prices, discounts, etc.).
“Unpublished” means not published online.
2. OBLIGATIONS OF THE UNDERTAKING
2.1 Business information
2.1.1 Information provided by the Business for inclusion on the Platforms will contain material about the Business (including images, photographs and descriptions), its benefits and services, details of discount prices (including all applicable taxes, levies, surcharges and fees) and availability, cancellation and no-show policies and other policies and restrictions (“Business Information”) and will comply with the format and standards set out in the
2.1.2 The Company makes clear and commits that the Business Information will in all cases be true, accurate and not misleading. The business is in all cases responsible for the correct and up-to-date status of the Information including the additional availability of discounts for certain periods or any extraordinary (adverse) events or situations (e.g. during construction or renovation on or near its premises). The company will update the company information on a daily basis (or as frequently as necessary).
2.1.3 Information provided by the Business for display on the Platforms shall remain the sole property of the Business. Information provided by the Business may be edited or modified by Discover Paros member card and then translated into other languages, but such translations shall remain the exclusive property of Discover Paros member card. The edited and translated content will be used solely by Discover Paros member card on the Platforms and may not be used (in any other manner or form) by the Company for any other distribution or sales channel or other purposes. No changes or modifications to the content of the business descriptive information are permitted unless prior written approval is given by Discover Paros member card.
2.1.4 Unless otherwise agreed with Discover Paros member card, all changes, updates and/or amendments to the Business Information (including prices, availability, discounts) must be made directly by the business and on-line through the platform or by any other appropriate means recommended by Discover Paros member card. Updates and changes to images, photos and descriptions will be processed by Discover Paros member card as quickly as reasonably possible.
2.2 Price Maintenance and Discounts.
2.2.1 The Business will provide Discover Paros member card with a Price Maintenance and Discount Guarantee. “Price and Discount Maintenance” refers to the same or better prices and discounts for the same business, , same dates, same product , same number of customers, same or better benefits and additional services as available from the business.
2.2.2 Under this Agreement and subject always to Clause 2.2.1, the business agrees to provide for each calendar date specified (subject to availability) availability of discounts for all Discover Paros member cardholders .
3.1 Business hereby grants to Discover Paros member card a non-exclusive, royalty-free, and international right and license (or grant of further license where applicable):
(a) to use, reproduce, have reproduced, distribute, communicate and make available by any method and presentation what has been agreed to be the elements of the Business Intellectual Property Rights as assigned to Discover Paros member card by Business in accordance with this Agreement and which are necessary for Discover Paros member card to exercise its rights and perform its obligations under this Agreement;
(b) make use of, reproduce, have reproduced, distribute and use (including without limitation publicly performing, modifying, adapting, disclosing, reproducing, copying and making available to the public in any manner) the Business Information.
3.2 Discover Paros member card may further license, make available, disclose and offer the Business Information (including the related Intellectual Property Rights) of the Business and special offers made by the Business for the Platforms through or in conjunction with (the websites, applications, tools or other means by) affiliated companies and/or third parties (the “Third Party Platforms”).
3.3 Under no circumstances is Discover Paros member card liable to the business for any acts or omissions on the part of the Third Party Platforms. The only remedy for the Business with respect to Third Party Platforms is to request Discover Paros member card (which has the right and not the obligation) to (i) deactivate and disconnect from a particular Third Party Platform, or (ii) terminate this Agreement, all in accordance with the terms of this Agreement.
4. DISPLAY SERIES, CUSTOMER FEEDBACK, MARKETING
4.1 Display Series
4.1.1 The order in which the Business appears on the Platforms (the “Appearance Order”) is determined automatically and unilaterally by the Discover Paros member card. The Order of Appearance is based on and influenced by various factors, including, but not limited to, the amount paid by the business, the minimum discount declared by the business, the
the ratio of the duration of the discount period to the number of visits to the relevant website of the business (the ‘Customer/Discount Ratio’), the customer feedback score, the customer service history, the number and type of complaints from customers and the history of compliance with the discount.
4.1.2 The business has the ability to influence its own order of appearance by changing the annual subscription amount to a premium package and availability for certain periods and continuously improving other factors. The Business will not make any claims against the Discover Paros member card in relation to the Business’ Appearance Series. The automated Appearance Series system (as defined below) calculates on-time payment as generated, so any failure to pay the annual fee on time will result in a lower Appearance Series and the removal of the business from its Discover Paros member card platforms.
4.2 Customer Comments
4.2.1 Discover Paros member card will ask Customers who have visited the business to provide feedback on their experience
In the business and to rate certain aspects of their service.
4.2.2 Discover Paros member card reserves the right to publish these comments and ratings on the Platforms. The Company acknowledges that Discover Paros member card is a distributor (without any obligation of confirmation) and not a publisher of such comments.
4.2.3 The Discover Paros member card undertakes to make every effort to monitor and control the Customer Schools in relation to the offence of immorality or the mention of the name of a specific person. The Discover Paros member card reserves the right to reject, edit or remove unfavourable Comments in the event that such Comments include a defamatory statement or reference to the name of a particular person or business.
4.2.4 The Discover Paros member card will not engage in any discussion, negotiation or correspondence with the business in relation to customer comments (the content or consequences of their publication or distribution).
4.2.5 The Discover Paros member card has and disclaims all liability and responsibility for the content and consequences (by publication or distribution) of any comments or feedback on anything and in any way.
4.2.6 Customer Comments are intended for the exclusive use of Discover Paros member card and are made available from time to time on such Platforms by Discover Paros member card. Discover Paros member card retains exclusive ownership of all right, title and interest in and to (all intellectual property rights in) the Customer Comments and the Company has no right (directly or indirectly) to publish, promote, copy, in whole or in part, provide by hyperlink or deep link, incorporate, extract, use, combine, share or otherwise use the Customer Comments without the prior consent of Discover Paros member card.
4.3 (Online) Marketing and PPC Advertising
4.3.1 Discover Paros member card is entitled to promote the business using the name(s) of the business in online marketing, including email marketing and/or pay-per-click (PPC) advertising. The Discover Paros member card shall conduct online marketing campaigns at its own expense and discretion.
4.3.2 The company is aware of the working methods of search engines, such as spidering of content and URL ranking. Discover Paros member card agrees that if the Business discovers conduct by Third Party Platforms that infringes the Business’s Intellectual Property Rights , then the Business will notify Discover Paros member card in writing detailing the situation and Discover Paros member card will use all commercially reasonable means to ensure that such third party takes steps to remedy the infringement.
4.3.3 The business agrees that it will not use, promote, benefit from, include, refer to or specifically target in its brand/logo the Discover Paros member card (including the trade name, trademark, service mark or other similar indicia of identity or source) or by directly purchasing keywords using Discover Paros member card’s Intellectual Property Rights for price comparison purposes or any other purpose (whether on the Company’s platform or on a third party platform, system or engine or otherwise), unless written approval is obtained from Discover Paros member card. The Business will not use or create (directly or indirectly) any pay-per-click advertising on (post-)search websites, which advertising (re)directs and links to the relevant Business’s landing page on the Platforms where the Business is advertised, promoted and/or included (no duplicate advertising is permitted).
5. COMPENSATION AND LIABILITY
5. 1 Each Party (the “Indemnitee”) shall be responsible for and shall indemnify, protect and hold the other Party (or its directors, officers, employees, agents, representatives, affiliates and sub-contractors) (the “Indemnitee”) harmless and from direct loss, damage, loss (excluding any loss of production, loss of profit, loss of income, loss of contract, loss or damage to goodwill or reputation, loss of reputation, loss of goodwill and/or loss of reputation, loss of compensation or any special, indirect or substantial loss and/or damage), liabilities, obligations, costs, damages, indemnities, damages of any kind, costs of proceedings, rights, rights of any kind, penalties, legal proceedings, and expenses (including, without limitation, reasonable attorneys’ fees and expenses) actually paid, incurred or suffered by the Indemnitee pursuant to:
(i) the breach of this Agreement by the Indemnitee; or
(ii) any claim by any third party based on any (alleged) infringement of the Indemnitee’s Intellectual Property Rights.
5. 2 The business will fully indemnify, protect and hold Discover Paros member card (or its directors, officers, employees, agents, affiliates and subcontractors) harmless for and against any and all liabilities, costs, expenses (including, without limitation, reasonable attorneys’ fees and costs), damages, losses, liabilities, liabilities, claims of any kind, interests, penalties and legal proceedings paid, incurred or caused by Discover Paros member card (or its directors, officers, employees, agents, affiliates and subcontractors in connection with:
(i) all Customer Claims relating to inaccurate, misleading or erroneous business information on the Platforms,
(ii) all Customer claims relating to accommodation, overbooking or (partial) cancellation or incorrect bookings.
(iii) all other claims by Customers which are wholly or partly attributable to or at the risk of and on account of the business (including directors, employees, intermediaries, agents and business premises) (including claims relating to (the lack of) services provided or products offered by the business ) or arising in tort, fraud, wilful misconduct, negligence or breach of contract (including the Customer’s discount) by or attributable to the business (including the directors, employees, intermediaries, agents and premises of the business) in respect of the Customer or the Customer’s property.
(v) all claims against Discover Paros Member Card in connection with or as a result of the business’s failure to (a) properly register with the appropriate tax authorities, (b) pay, collect, remit or withhold applicable taxes, costs or surcharges imposed or based on services or other charges arising hereunder in the relevant jurisdiction (including product price and discounts ).
5.3The parties agree and acknowledge that none of the limitations of liability that
set out in Clause 5 shall apply to any of the indemnities in relation to the third party’s claims (e.g. Customer claims as described in Clause 5.2) or the third party’s legal liabilities.
5.4 In the event of a Third Party Claim, the Parties shall act in good faith and use commercially reasonable efforts to advise, cooperate and assist each other in the defence and/or settlement (in consultation and agreement with the Indemnitee and with due regard to the interests of both Parties) and neither Party shall make any admission, shall not submit any documents, consent to the enforcement of any court order or enter into any compromise or settlement without the prior written consent of the other Party (which consent shall not be unreasonably withheld, delayed or limited).
5. 5 In no event shall either Party be liable to the other Party for indirect, special, punitive, incidental or consequential damages or losses, including loss of production, loss of profit, loss of income, loss of contract, loss or damage to reputation and patronage, loss of claim, if such loss or damage (alleged to be) the result of breach of contract, tort or otherwise (even if warned of the possibility of such loss or damage). All such losses and damages are expressly waived by this document.
5.6 Each Party acknowledges that remedies at law may be inadequate to protect the other Party from any breach of this Agreement and without prejudice to any other rights and remedies to the contrary available to the other Party, each Party shall have the right to injunctive relief and specific performance of contracts.
6.1 The Business will fully cooperate and assist Discover Paros Member Card upon its first request (and will disclose any information reasonably requested in connection with) the identification of the (ultimate) owner, manager and/or controller of the Business.
7.1 The Parties understand and agree that in the implementation of this Agreement, each Party may have access to, or may be exposed, directly or indirectly, to confidential information of the other Party (the “Confidential Information”). Confidential Information includes Customer Data, transaction volumes, marketing and business plans, business, financial, technical, operational and other such non-public information that either the disclosing Party designates as private or confidential, or that either Party receiving it should reasonably know should be considered private and confidential.
7.2 Each Party agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing Party and the Party accepting the information shall not use any Confidential Information for any purpose other than in furtherance of this Agreement, (b) shall maintain and use reasonable methods to induce its employees, officers, agents, representatives, contractors and agents (the “Permitted Persons”) to maintain the confidentiality and privacy of the Confidential Information, (c) will disclose the Confidential Information only to Permitted Persons who need to know such information in furtherance of this Agreement; (d) will not make and will use reasonable efforts to ensure that Permitted Persons will not make a copy, publication, disclosure to third parties or use (except as permitted hereunder) the Confidential Information; and (e) return or destroy all Confidential Information (including hard copies and digital copies thereof) upon the written request of the other Party.
7. 3 Notwithstanding the foregoing, (a) Confidential Information shall not include information to the extent that it (i) is or becomes part of the public domain through acts or omissions by the receiving Party, (ii) was in the possession of the receiving Party prior to the date of entry into force of this Agreement, (iii) was disclosed to the receiving Party by a third party that had no obligation to keep it confidential, or (iv) is required to be disclosed pursuant to law, court order, subpoena or governmental authority; and (b) nothing in this Agreement restricts or prevents a Party from disclosing this Agreement (including any technical, operational, financial and performance data (but excluding any data relating to Customers)) in confidence and to an Affiliate (of the Group).
7.4 The Parties shall use commercially reasonable efforts to ensure the confidentiality and privacy of Customer Data and to protect it from unlawful use or disclosure. The Parties agree to comply with all applicable laws, rules and directives (on privacy and personal data) of the jurisdiction in which each Party is established (including (where applicable) Directives 95/46/EC and 2002/58/EC (and any amendments thereto) on the processing of personal data and privacy).