SOPAGO TERMS & CONDITIONS
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1. INITIAL PROVISIONS
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1.1 These Terms and Conditions shall apply to all Agreements concluded between SOPAGO and Partner or to whoever is using services provided by SOPAGO and/or has access to SOPAGO Platform.
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1.2 These Terms and Conditions are published on the SOPAGO website and form an integral part of the Agreement.
1.3 This version of the Terms and Conditions is valid and effective from the effective date as stated above and completely replaces any prior versions of the Terms and Conditions.
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2. DEFINITIONS
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2.1 The headings and structure of these Terms and Conditions, as well as any examples provided under certain clauses, if any, shall not affect their interpretation.
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3. SOPAGO SERVICES
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3.1 SOPAGO Services
Subject to these Terms and Conditions, SOPAGO shall make the SOPAGO Platform available to the Partner and provide the Partner with other SOPAGO Services as specified in the Agreement and subject to Clause 3 hereof within the Territory. Partner shall pay SOPAGO the Fees set forth in the Agreement in accordance with Clause 5 of these Terms and Conditions.
3.2 Authorisation
Unless otherwise specified in the Agreement, the Partner hereby appoints SOPAGO as limited agent with respect to booking accommodation and other Partner Services provided by Partner to Customers, subject to limitations as stipulated herein. SOPAGO shall enable the publishing Listing of the Partner via SOPAGO Platform, the Partner’s offer of accommodation, and other Partner Services.
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3.3 Availability
SOPAGO Services shall be made available by SOPAGO subject to any unavailability caused by circumstances beyond SOPAGO’ reasonable control, including any Force Majeure Event, any computer, communications, internet service, or hosting facility failures, delays involving hardware, software, power, or other systems not within SOPAGO’ possession or reasonable control. SOPAGO Services may be temporarily limited or interrupted due to maintenance, repair, modifications, upgrades, or relocation.
3.4 Service Level Agreement
The Service Level Agreement available at … applies to the Agreement.
3.5 SOPAGO Account
As part of the registration process, the Partner shall identify username(s) and email contact(s) for the SOPAGO Account and subsequently shall set up password(s).
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3.6 Unauthorized Access
The Partner is obliged to keep its access details confidential and secure. SOPAGO shall not be liable for any damage caused by misuse or unauthorised disclosure of access details or unauthorised access to the SOPAGO Account by any third party.
3.7 Equipment
The Partner shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use SOPAGO Services including but not limited to modems, hardware, servers, software, operating systems, and networking and web servers (“Equipment”). The Partner shall be responsible for maintaining the security of the Equipment and for any use of the Equipment.
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3.8 Subcontractors
SOPAGO may also use subcontractors to provide certain parts of SOPAGO Services. SOPAGO shall be liable for the acts and omissions of its subcontractors to the same extent SOPAGO would be liable if performing the services of each subcontractor directly under the terms of the Agreement except as otherwise set forth in the Agreement.
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3.9 Changes to SOPAGO Services
Without limiting any other terms herein, as a part of the ongoing development of SOPAGO Services, SOPAGO reserves the right in its sole discretion to add, change, discontinue or otherwise modify any elements and features to the SOPAGO Services specified in the Agreement, including changes to SOPAGO Platform. If any change materially degrades the provided SOPAGO Services (e.g. if a material feature is removed from the applicable SOPAGO Services package provided to the Partner), SOPAGO will notify the Partner and Clause 14.8 hereof will apply.
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3.10 SOPAGO Add-on
The Partner may purchase SOPAGO Add-ons through SOPAGO Marketplace or by other means as offered by SOPAGO subject to the Fees for SOPAGO Add-on as set forth by SOPAGO. The Fees for SOPAGO Add-on are payable on a monthly basis, unless a different billing cycle is specified by SOPAGO, and are always set in EUR. Any currency conversion under this clause shall be calculated based on the currency exchange rate published by Open Exchange Rates (available at Open Exchange Rates ) between 12:00 am and 1:00 am (CET/CEST) on the invoice date. SOPAGO may remove any SOPAGO Add-on and/or update any SOPAGO Add-on at any time and at its sole discretion.
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3.11 Trial period for SOPAGO Add-on
Some SOPAGO Add-ons may be offered free of charge for a trial period as specified for the given SOPAGO Add-on. Within the trial period, the Partner is entitled to cancel its purchase of the given SOPAGO Add-on at any time via the respective feature of SOPAGO Platform. Upon expiration of the trial period, the Partner is obliged to pay the Fees for the respective SOPAGO Add-on.
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4. LISTING, CONFIRMATIONS & PARTNER SERVICES
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4.1 Listing
Partner is in full control and is therefore fully responsible for the uploaded availability of accommodation or other Partner Services and upload of up-to-date versions of terms and conditions governing Partner Services to SOPAGO Platform. Accordingly, Partner represents and warrants that the uploaded available Partner Services and any Partner content made available through SOPAGO Platform (i) will not breach any agreements made by the Partner with any third party, (ii) will be in compliance with all applicable Legislation, and (iii) do not conflict with the rights of any third parties. SOPAGO is entitled, at any time, without any prior notice, and at its sole discretion, to remove or disable access to any available Listing and any Partner content uploaded to SOPAGO Platform if it considers it to be objectionable for any reason, especially if it breaches applicable laws and regulations.
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4.2 Confirmation
Upon Customer’s request for reservation of the Partner Services via SOPAGO Platform, SOPAGO is entitled to confirm the such reservation to the Customers on behalf of Partner provided the requested Partner Services are available and all specified requirements of relevant Partner’s Listing have been fulfilled by Customer’s reservation. SOPAGO shall provide the details of the Customer and the Customer’s request to the Partner. The Partner shall not charge the Customer a higher price for requested Partner Services than the price specified in the reservation request.
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4.3 Partner Services
Partner is solely responsible for providing Partner Services to its Customers and for (i) serving any bookings or other Partner Services confirmed via SOPAGO Platform, (ii) any cancellations of any confirmed Partner Services order, and (iii) the Partner’s refunds policy.
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4.4 Indemnification
The Partner will fully indemnify, defend, and hold harmless SOPAGO against all liabilities, losses, costs, damages, demands and expenses of any kind arising from, or in connection with, (i) the provision of accommodation and any other Partner Services, (ii) cancellation of any confirmed Partner Services order by the Partner, (iii) the Partner’s refunds policy.
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5. FEES & PAYMENT TERMS
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5.1 Fees
The Partner shall pay to SOPAGO all Fees specified in the Agreement. Unless otherwise specified in the Agreement, Platform Fees shall be paid as of the Starting Date in advance. Changes to the scope of SOPAGO Services made through the SOPAGO Platform may affect the amount of Platform Fees payable hereunder. Payment obligations are non-cancellable and non-transferrable and paid Fees are non-refundable.
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5.2 Resource Tiers
Resource Tiers are defined by reference to a type of space(s), membership or other resource (s) (“Resource”) offered by the Partner to its Customers as follows:
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Extra Small Resource Tier ("XS”), Resource’s type(s) will be specified in the future within the SOPAGO Platform;
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Small Resource Tier ("S”), Resource’s type(s) will be specified in the future within the SOPAGO Platform;
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Medium Resource Tier ("M”), Resource’s type(s) will be specified in the future within the SOPAGO Platform;
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Large Resource Tier ("L”), Resource’s type(s) will be specified in the future within the SOPAGO Platform;
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Extra Large Resource (“XL”), Resource type(s) will be specified in the future within the SOPAGO Platform.
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SOPAGO may add a new Resource’ type into each Resource Tier at any time without prior notice except for Resource Tier's change that increases the applicable Platform Fees which will be notified in accordance with Clause 5.6. hereof. The Partner is not allowed to set up the Resource in a Resource Tier which differs from Partner's official offering to its Customers.
If the Partner pays the Platform Fees on monthly basis, the Platform Fees for Resource offered in more than one Resource Tier and/or as more than one Resource’s type (each a “Flexible Resource’”) will be calculated as the higher of (a) the biggest applicable Resource Tier within that Flexible Resource; or (b) the applicable Resource Tier multiplies the number of such Resource within that Flexible Resource.
5.3 Payment terms
All Fees shall be paid as specified in the Agreement. The Partner agrees payment of any Fees is taken from the Sub-Merchant Account. If specifically agreed in the Agreement, SOPAGO (or its Payment Services Provider and/or Member if applicable) shall be authorised to withdraw the respective funds from a payment instrument saved and pre-authorized in the SOPAGO Account. All amounts under the Agreement are payable in the currency stipulated in the Agreement.
The Partner agrees that SOPAGO may issue invoices electronically or otherwise. If the Platform Fees are payable on the annual billing cycle, SOPAGO shall issue a proforma invoice for the prepayment of the Platform Fees based on the Initial Resource Quantities specified in the Agreement. SOPAGO will issue log-in details to the production environment of the SOPAGO Platform only upon receipt of the payment of such pro-forma invoice. The Partner agrees that SOPAGO is not obliged to issue log-in details if the applicable pro-forma invoice is not paid. Unless otherwise agreed, all invoices issued on the basis hereof are due within fourteen (14) days of the invoice date.
Payments shall be deemed to be made on the day when such payments are credited to the bank account of SOPAGO. Any amounts not paid when due shall accrue default interest at the rate of 0.1% per day. If such amount would exceed maximum default interest possible under applicable law, then the Partner shall be obliged to pay only such maximum default interest. Both SOPAGO and Partner declare that the consideration pursuant hereto is made upon the mutual consent of both Parties.
5.4 Taxes
The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, goods and services, harmonised, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (“Taxes”). The Partner is responsible for paying all Taxes associated with the Agreement. If SOPAGO has a legal obligation to pay or collect Taxes for which Partner is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by the Partner unless the Partner provides SOPAGO with a valid tax exemption certificate authorised by the appropriate taxing authority. The Partner is responsible to provide SOPAGO with a valid VAT number and a correct bank account to enable correct billing.
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5.5 Minimum Platform Fees
SOPAGO shall stipulate in the Agreement the minimum amounts of fees that must be paid by Partners for the use of SOPAGO Platform (“Minimum Platform Fees”). If the Platform Fees (per month) are calculated as per Clause 5.1. hereof fall below the Minimum Platform Fees for any reason (e.g. the Partner changes Resource Quantities within SOPAGO Platform), the Partner agrees to pay the Minimum Platform Fees instead, unless agreed otherwise.
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5.6 Changes to Fees
From time to time, SOPAGO may introduce changes to the applicable Fees stated in the Agreement and notify the Partner thereof. Any such notified changes will be effective towards the Partner upon later of (i) thirty (30) calendar days as of SOPAGO´ notification of such changes to the Partner, and (ii) the starting date of the Partner´s next billing cycle. If the Partner disagrees with any such changes, the Partner may object to them in accordance with Clause 14.8 hereof.
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5.7 True-ups
If the amount of the Platform Fees calculated in accordance with the Agreement during any applicable billing cycle exceeds the amount of the Platform Fees pre-paid by the Partner as per Clause 5.3. SOPAGO shall have the right to issue a true-up invoice for payment of such additionally incurred Platform Fees.
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6. USE OF SOPAGO SERVICES
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6.1 Purpose
The Partner or any of its Affiliates (if and to the extent specifically agreed by the Parties in the Agreement) is entitled to use SOPAGO Services only for its internal business processes. The Partner is not entitled to allow any third party to use or access SOPAGO Services, inter alia, by any technical means or by processing any requests for the third parties or other Facilities. If the Partner violates this clause either by using SOPAGO Services for any third party, by allowing the use of or access to SOPAGO Services by a third party or by using SOPAGO Services for other purpose or Facility, SOPAGO has the right to withdraw from all of its contractual obligations to the Partner and terminate the Agreement without notice period; SOPAGO’ claim for damages is not affected.
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6.2 Scope
Partner may use only SOPAGO Services as specified in the Agreement, Documentation, and Acceptable Use Policy. The Partner is entitled to use SOPAGO Services only for the provision of Partner Services in the Facility specified in the Agreement.
6.3 Partner use
The Partner is obliged to use the SOPAGO Services in accordance with the purpose for which the SOPAGO Services are provided and in compliance with these Terms and Conditions and all applicable laws. The Partner shall not use SOPAGO Services (i) in any way that causes, or is likely to cause, any SOPAGO Service, or any access to it, to be interrupted, damaged, or impaired in any way, or (ii) for fraudulent purposes, or in connection with a criminal offence or other unlawful activity.
6.4 Conduct
Partner shall keep the working environment (including but not limited to the functioning of the network) in compliance with the Documentation, terms and conditions governing Partner Services, and in line with standard business working environment practices for similar systems. SOPAGO shall not be liable for any limited or non-functioning SOPAGO Services arising out of non-compliance with these requirements. SOPAGO shall neither be liable for any damage arising thereof.
6.5 Cooperation
Partner shall provide all reasonable assistance and cooperation to SOPAGO in order to enable SOPAGO to provide all SOPAGO Services as specified in the Agreement in an efficient and timely manner. All reasonable cooperation shall be provided in scope, resources, and personnel, free of charge and inter alia, by providing technical resources, qualified personnel obliged to provide such cooperation, or by providing specifications and undertaking tests, by taking over the work duly provided by SOPAGO, etc. The Partner acknowledges that any delay on its part in the performance of its obligations may have an impact on SOPAGO’ performance of its activities under the Agreement, and SOPAGO shall not be liable for any delay resulting therefrom.
6.6 Changes
The Partner shall not be entitled to make any changes to the SOPAGO Services or SOPAGO Platform with the exception of standard administration settings in line with the Documentation.
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6.7 Hosting
The Partner acknowledges and agrees that specific SOPAGO Services are hosted on the Hosting Platform and that the Partner is aware of any technical or other limitations for use of SOPAGO Services arising out of the Terms of Hosting.
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7. API - THIRD-PARTY SERVICES AND SOPAGO MARKETPLACE
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7.1 SOPAGO API
The Partner may provide or authorise SOPAGO to provide limited access to third persons to certain parts of the SOPAGO Platform via SOPAGO Application Programming Interface (“SOPAGO API”) on the basis of SOPAGO API Terms and Conditions. The Partner also acknowledges that Clause 7 applies also to any Third-Party Marketplace Product. Unless agreed otherwise in the respective Agreement, SOPAGO provides only integration and not the service itself. SOPAGO shall be entitled to remove any Third-Party Marketplace Product at any time and at its sole discretion.
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7.2 Third-party terms
Before using any of the third-party integrations, the Partner is encouraged to (i) review the terms and data processing terms (if applicable) on the basis of which the relevant third party provides its product or service that is the subject of the integration; and (ii) to review the privacy and technical security of the product or service that is subject to integration. SOPAGO trusts that the Partner has conducted the review according to Clause 7.2 hereof.
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7.3 Acknowledgement
By employing any of the external integrations supported by SOPAGO, the Partner acknowledges that (i) SOPAGO has no control over the service or product which is the subject of the integration, (ii) the Partner has read and understood the terms on the basis of which the relevant third party provides its product or service that is the subject of the integration, (iii) Partner consents that SOPAGO shall transfer the data collected as a result of providing Partner with relevant services to the third party, (iv) Partner uses third party integration at its own risk.
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7.4 SOPAGO Liability
SOPAGO shall not be held liable to and shall not accept any liability, obligation, or responsibility whatsoever for any loss or damage in connection with third-party integrations. SOPAGO has no control over such third parties and is not responsible for the content of their services. SOPAGO provides the Partner with third-party integrations only for the Partner’s convenience. This does not imply any endorsement or any association with such third parties. Any concern regarding third-party services should be directed to the responsible third party.
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7.5 Indemnification
The Partner will defend and indemnity SOPAGO against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding arising from (i) the Partner's misuse of third-party integrations and (ii) violations of terms on the basis of which the relevant third party provides its product or service that is the subject of the integration.
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8. DELIVERY & WARRANTY
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8.1 Delivery of SOPAGO Services
SOPAGO shall provide SOPAGO Services as specified in the Agreement by creating and/or authorising an already existing SOPAGO Account for the Partner.
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8.2 No Warranty
Unless stipulated otherwise in any relevant Agreement, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, THE SOPAGO PLATFORM, SOPAGO SERVICES, DOCUMENTATION AND ANY SOPAGO CONTENT ARE PROVIDED “AS IS,” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, SOPAGO EXPLICITLY DISCLAIMS ALL EXPRESS AND IMPLIED, STATUTORY, OR OTHERWISE, CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOPAGO MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SOPAGO PLATFORM, SOPAGO SERVICES, DOCUMENTATION, OR ANY SOPAGO’ CONTENT.
SOPAGO makes no warranty that the SOPAGO Platform, SOPAGO Services, Documentation, or any SOPAGO content will meet the Partner's requirements or be available on an uninterrupted, secure, virus-free or error-free basis. SOPAGO makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of the SOPAGO Platform, any service levels with respect to the SOPAGO Platform, SOPAGO Services, Documentation, or any SOPAGO content. The Partner acknowledges and agrees that if the Partner relies on the SOPAGO Platform, any service levels with respect to the SOPAGO Platform, SOPAGO Services, Documentation, or any SOPAGO content, the Partner does so solely at its own risk.
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9. LIABILITY
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9.1 Information duty
The Partner shall without any undue delay inform SOPAGO about the occurrence of any event that may affect the due fulfilment of the obligation set out herein and shall undertake its best endeavours to cooperate with SOPAGO to overcome such events.
9.2 Force majeure
Neither Party will be in violation of the Agreement or shall not be liable for failure or delay in performance to the extent caused by Force Majeure Event.
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9.3 Relief Events
Where SOPAGO’ provision of any SOPAGO Service, or performance of any obligation set out herein, is prevented as a direct or indirect result of any act or omission by the Partner (“Relief Event”), then SOPAGO shall be granted an extension to all affected deadlines equal to the length of delay caused by the relevant Relief Event.
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9.4 Liability limitation
NEITHER SOPAGO, ITS AFFILIATES, CONTRACTORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SOPAGO PLATFORM OR SOPAGO SERVICES, WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LITIGATION COSTS, LOSS OF DATA, GOODWILL, PRODUCTION, BUSINESS OPPORTUNITIES, OR REPUTATION, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF, OR IN CONNECTION WITH, THE AGREEMENT, OR FROM THE USE OF, OR INABILITY TO USE, THE SOPAGO PLATFORM OR SOPAGO SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SOPAGO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED IN ITS ESSENTIAL PURPOSE.
In no event shall SOPAGO be liable to the Partner for more than the amount of any actual direct damages up to the amount corresponding to the Platform Fees payable by the Partner hereunder for the last calendar month preceding the first incident from which the liability arose. The Parties agree that this clause represents a reasonable allocation of risks. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO THE PARTNER. HOWEVER, IN THESE JURISDICTIONS, THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
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10. CONFIDENTIALITY
10.1 Neither Party will use any Confidential Information of the disclosing party except as necessary to exercise its rights or perform its obligations pursuant to the Agreement or as expressly authorised in writing by the other Party. Each Party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances shall each Party use less than reasonable care. Neither Party shall disclose the other Party’s Confidential Information to any person or entity other than its officers, employees, consultants, contractors, legal advisors, and Affiliates who need access to such Confidential Information in order to effect the intent of the Agreement and who have entered into confidentiality agreements at least as restrictive as the requirements in this clause.
11. INTELLECTUAL PROPERTY RIGHTS & DATA PROTECTION
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11.1 Intellectual Property Rights
SOPAGO and its Affiliates, suppliers, and/or licensors, if applicable, shall own and retain all rights, titles, and interests (including, but not limited to, all patent rights, trademark rights, copyright, trade secrets, and any other intellectual property rights) in and to (i) the SOPAGO Platform, SOPAGO Services, Documentation, and all improvements, enhancements, or modifications thereto; (ii) any software, applications, inventions, or other technology developed in connection with the implementation of SOPAGO Services, SOPAGO Platform, or support by SOPAGO; (iii) information derived from aggregated and anonymised data, and (iv) all intellectual property rights related to any of the foregoing.
The Partner agrees that only SOPAGO (or its Affiliates) shall have the right to enhance, alter, edit, adapt, or otherwise modify SOPAGO Services and the SOPAGO Platform. In case of any modification by the Partner, or in case of interconnection with another system, SOPAGO shall not be liable for any errors and does not warrant the proper functioning of SOPAGO Services and the SOPAGO Platform. Any changes, implementations, and/or modifications of SOPAGO Services or the SOPAGO Platform may be performed only by SOPAGO and/or with the previous written consent of SOPAGO under the terms in the granted consent.
11.2 Reports and modifications
If the Partner provides SOPAGO with any reports of defects and/or suggests modifications (“Report”), SOPAGO shall have the right to use such Report, including incorporating such a Report into SOPAGO Services or other software products, without any obligation to the Partner. Unless specifically agreed otherwise in writing, SOPAGO reserves all rights and grants the Partner no licences of any kind, whether by implication or otherwise.
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11.3 Artificial Intelligence Services
Notwithstanding anything to the contrary in the Agreement, SOPAGO shall have the right to collect, track, and analyze data and other information relating to the provision, use, and performance of various aspects of the SOPAGO Platform, SOPAGO Services, and related systems and technologies (i.e., anonymized aggregate information derived from Customer or Partner), and SOPAGO will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the SOPAGO Platform, SOPAGO Services, and all capabilities of artificial intelligence that will increase the performance and effectiveness of the services for Partners or for other development, diagnostic, and corrective purposes, in connection with the SOPAGO Platform, SOPAGO Services and other SOPAGO offerings (or offerings of its Affiliates), (ii) to use such information and data to promote SOPAGO Services and other SOPAGO offerings (or offerings of its Affiliates), and (iii) make such data available in an aggregated and anonymized form (i.e., via so-called anonymized industry standard trends).
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12. REPRESENTATIONS, WARRANTIES & RESTRICTIONS
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12.1 General
Each Party represents and warrants to the other Party that: (i) such Party is duly incorporated and validly existing under the laws of the jurisdiction of its incorporation; (ii) the execution, delivery, and performance of the Agreement constitute the legal, valid, and binding obligation of such Party; and (iii) such Party has all requisite corporate power and financial capacity and authority to execute, deliver, and perform its obligations under the Agreement.
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12.2 Restrictions
The Partner shall not (and shall not authorise or support any third party to): (i) modify, translate, reverse engineer, decompile, disassemble, or create any derivative works based on the SOPAGO Platform or SOPAGO Services, except to the extent that enforcement of the foregoing restrictions is prohibited by applicable Legislation; (ii) circumvent any user limits or other timing, use, or functionality restrictions built into the SOPAGO Platform or SOPAGO Services; (iii) remove any proprietary notices, labels, or marks from the SOPAGO Platform or SOPAGO Services; (iv) frame, embed, or mirror any content forming part of the SOPAGO Platform or SOPAGO Services; (v) access the SOPAGO Platform or SOPAGO Services in order to (a) build a competitive product or service, or (b) copy any ideas, modules, functions, or graphics of the SOPAGO Platform or SOPAGO Services; (vi) register, directly or indirectly trademarks, business names, or other designations of SOPAGO (or related or similar business names or other designations); (vii) use SOPAGO’ intellectual property rights (or any related or similar logos and/or trademarks of SOPAGO) for its benefit, e.g., by combination of SOPAGO logos and/or trademarks with its own business name and/or company name or its own products or services; (viii) use the SOPAGO Platform or SOPAGO Services in a way that is prohibited by the Acceptable Use Policy.
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13. COMMUNICATION & REFERENCES
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13.1 Addresses of the Partner
Any and all communication addressed to the Partner (including any notice having a legal effect and all invoices) may be sent by electronic means (i) to the email address specified by the Partner in the Agreement or any other email address provided by the Partner or (ii) through SOPAGO Account used by the Partner.
13.2 Partner References
SOPAGO shall be entitled to publicly refer to the Partner as a user of SOPAGO Services and use Partner's trademark and logo for this purpose.
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14. TERM, TERMINATION & CHANGES
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14.1 Term
Unless otherwise specified in the Agreement, the Agreement is concluded for an unlimited period of time.
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14.2 Termination for convenience
Both Parties may terminate the Agreement via a written notice with a notice period of one (1) month. The notice period shall start to run on the first day of the calendar month following the delivery of the notice and come to an end upon the expiry of the last day of the relevant calendar month. By terminating the Agreement, SOPAGO does not waive any of its rights to claim the unpaid Fees, other charges or any claim for damages. Notwithstanding Clause 5.1, if SOPAGO terminates the Agreement for convenience pursuant to this Clause 14.2, the Partner shall have the right to receive a prorated refund of any Platform Fees prepaid by the Partner which fall under the period after the effectiveness of the termination.
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14.3 Suspension
SOPAGO may suspend the provision of SOPAGO Services to the Partner in the event of (i) the Partner’s delay with the payment of Fees for more than ten (10) days, (ii) the Partner’s delay with the payment of any negative balance or deposit, or (iii) material breach of the Agreement by the Partner or (iv) as specified in the Merchant Agreement or similar agreement. Any other rights of SOPAGO arising out of the Partner’s breach remain unaffected. During the suspension, SOPAGO Services work as usual, but the Partner has no access to the SOPAGO Account.
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14.4 Termination
The Agreement may, in addition to the reasons stipulated in this Clause 14, be terminated as follows: (i) if either Party breaches any material term or condition of the Agreement and fails to cure such breach within thirty (30) days after receiving notice of the breach; (ii) a Party may terminate this Agreement with immediate effect, without prejudice to any rights or remedies available to, or obligations or liabilities of, the Parties at the date of termination, if: (a) the other Party shall pass a resolution for winding up or a court shall make an order to that effect; (b) the other Party shall cease to carry on its business or substantially the whole of its business; or (c) the other Party is declared bankrupt, has been granted suspension of payments or has entered into voluntary liquidation, insolvent, or makes or proposes to make any arrangement or composition with its creditors.
The Partner shall provide prior notice for discontinuing any integration connectivity and the reduction of associated fees. If the Partner breaches the Acceptable Use Policy, SOPAGO may terminate the Agreement immediately upon notice; SOPAGO shall notify the Partner of the breach of the Acceptable Use Policy prior to termination provided such notification is reasonable considering the nature of the Partner’s breach and potential damages that may be caused by such breach. Upon expiration or termination of the Agreement, the Partner shall cease all use of the SOPAGO Services. SOPAGO may further terminate the Agreement under the terms and conditions of the Merchant Agreement.
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14.5 Training and Installation Cancellation
If the Partner cancels their confirmed onsite training and installation dates within four (4) weeks of the agreed installation date, the Partner will incur a cancellation fee in the amount of 60% of the fee for confirmed training and installation as specified in the Agreement. Any pre-booked flights or travel expenses booked at any time will be charged accordingly.
14.6 Negative Balance
The Partner is obliged to pay and settle any outstanding amounts to SOPAGO within fourteen (14) days upon termination of the Agreement. The Partner acknowledges that the negative balance shall accrue default interest at the rate of 0.1% per day under Clause 5.3. of these Terms and Conditions.
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14.7 Changes to the Terms and Conditions
These Terms and Conditions may be changed from time to time by SOPAGO. If SOPAGO makes a change to these Terms and Conditions SOPAGO will inform the Partner at least thirty (30) calendar days before the effectiveness of the revised Terms and Conditions, unless a change to the Terms and Conditions is required by applicable law, in which case shorter notice may apply. SOPAGO may, but shall not be obliged, notify the Partner of the changes made exclusively into the non-legally binding summary situated on the left side hereof.
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14.8 Objection against Changes and Termination in case of Changes
If the Partner does not agree with the changes to the Terms and Conditions made in accordance with Clause 14.7 hereof, changes to SOPAGO Services resulting in the material degradation of SOPAGO Services in accordance with Clause 3.9 hereof, or changes to Fees made in accordance to Clause 5.6 hereof (“Changes”), the Partner shall notify SOPAGO in writing and may terminate the Agreement (i) as of the day of effectiveness of respective Changes, or (ii) within 30 days as of receipt of the notification of the respective changes, depending on which occurs later. If no termination notice of the Partner is delivered to SOPAGO prior to such date, the Partner is no longer entitled to terminate the Agreement for reasons listed in this Clause 14.8.
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14.9 SOPAGO Add-on’s subscription termination
Parties may terminate the access or subscription for a respective SOPAGO Add-on for convenience at any time subject to the cancellation period. The cancellation period is specified in the product information for a given SOPAGO Add-on and starts running from the date of the Partner’s cancellation request via SOPAGO Marketplace. If the cancellation period is not specified in the product information for a given SOPAGO Add-on, the access or subscription for a respective SOPAGO Add-on may be terminated with immediate effect. Upon termination, Partner’s access to SOPAGO Add-on shall be suspended immediately. The Agreement shall survive any termination of subscription of SOPAGO Add-on and shall remain in full force and effect. In the event the Agreement expires or is terminated, the subscription and/or provision of all SOPAGO Add-on terminates automatically.
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15. SPECIFIC PROVISIONS APPLICABLE TO RESELLING
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15.1 Application
This clause applies if the Parties specifically agreed on Reselling in the Agreement.
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15.2 Reselling
If agreed in the Agreement, SOPAGO shall provide Customers with accommodation and other Services on its own behalf, subject to limitations as stipulated herein and subject to applicable terms and conditions. In this context, SOPAGO publishes Listing of offers for accommodation and other Partner Services to be supplied by the Partner. The Partner undertakes to provide SOPAGO with the types of Partner Services for which SOPAGO is expected to resell. Any fees shall be deducted by SOPAGO to which the Partner irrevocably grants its consent.
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15.3 Confirmation of Partner Services
Upon the Customer’s request for reservation of the Partner Services via the SOPAGO Platform, SOPAGO is entitled to confirm such a reservation to the Customer on its own behalf provided the requested Partner Services are available and all specified requirements of the relevant Partner’s Listing have been fulfilled by the Customer’s reservation.
15.4 Cancellation by the Partner
If for whatever reason, the Partner cancels a Partner Service order which is confirmed, the Partner shall without any undue delay repay any and all amounts already collected to the respective Customer (this is also applicable when the Customer themselves have cancelled the reservation as a result of a Chargeback as defined in the Merchant Agreement). The Partner will fully indemnify, defend, and hold harmless SOPAGO against any claims and all damages related to cancellation by the Partner under this clause.
15.5 Cancellation by the Customer
SOPAGO shall be authorised to (i) permit the Customer to cancel the reservation and (ii) refund to the Customer a portion of Customer Fees as specified in the applicable cancellation policy provided by SOPAGO.
15.6 Repayment of Customer Fees
SOPAGO shall, only in the Reseller model, pay to the Partner an amount corresponding to Customer Fees for the Provided Partner Service. SOPAGO shall not have any obligation to pay the Partner such amount of Customer Fees until the corresponding payments are duly received by SOPAGO from the Customer. The Partner hereby irrevocably grants consent to SOPAGO to set off any Fees against any amounts payable to Partner.
15.7 KYC verification
Partner will need to pass KYC (know your customer) verification in order to to use the SOPAGO Services. As part of the KYC verification process Partner shall provide complete, accurate and up-to-date information about its activities, shareholders, ultimate beneficial owners and other information as further stated in KYC Verification Form provided by SOPAGO. Once all the required information is provided, SOPAGO shall perform verification of Partner. Partner agrees that SOPAGO may run further checks on Partner's identity, creditworthiness and background by contacting and consulting relevant registries and government authorities. As a result of the Partner's verification, SOPAGO shall have the right, at its sole discretion, to accept or refuse providing SOPAGO Services.
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15.8 Changes to KYC information
Partner shall notify in advance SOPAGO of any changes relating to information provided as part of the KYC verification process. As KYC requirements may be updated from time to time to ensure compliance with regulatory and other requirements, Partner shall provide without undue delay such additional information and supporting documentation to SOPAGO.
15.9 Suspension and termination
The Partner acknowledges and agrees that (i) if the KYC verification process cannot be duly completed for any reason or (ii) Partner does not notify SOPAGO in advance of any changes according to the clause above or (iii) the Partner does not full any current or future KYC verification requirement, SOPAGO may (a) suspend the provision of SOPAGO Services to the Partner; or (b) limit the functionality available to a Partner until KYC verification process is duly completed or (c) terminate the Agreement with immediate effect.
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15.10 Authorized disclosure of Partner's KYC Verification Form
SOPAGO shall have the right to disclose KYC Verification Form completed by Partner to SOPAGO' Affiliates and if required by law, to other third parties.
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15.11 Deposit
SOPAGO may require the Partner to provide a deposit or reserve to cover the risk of loss to SOPAGO associated with reselling of the Partner Services. The Partner agrees that SOPAGO is eligible to fund the reserve or deposit from repayment of Customer Fees or by requesting funds directly from the Partner; the Partner shall be obliged to provide funds without undue delay upon the request of SOPAGO. SOPAGO may retain the deposit or reserve during the Term and for a period of one (1) year after its termination.
15.12 Indemnification
Partner will fully indemnify, defend and hold harmless SOPAGO and its Affiliates from and against any claims brought by a third party, especially the Customers, arising out of Reselling, the provision of accommodation and other Partner Services to the Customer and associated payments of Customers, including for all liabilities, damages, losses, cost, fees (especially Fees specified in the Cooperation Agreement), expenses, transactions, chargebacks, refunds, claims and associated fees.
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16. APPLICABLE LAW & DISPUTE RESOLUTION
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16.1 Applicable law
The Agreement shall be governed by and construed in accordance with the laws stipulated in the Agreement excluding the United Nations Convention on Contracts for the International Sale of Goods and conflicts of law rules.
16.2 Jurisdiction
Any dispute arising from or in connection with the Agreement, including a dispute regarding the existence, validity, or termination of the Agreement, or the consequences of its nullity, shall be finally decided by competent courts of a country stipulated in the Agreement.
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17. FINAL PROVISIONS
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17.1 Severability
If any provision in this Agreement is shown to be (or later becomes) illegal, unenforceable, invalid, inefficient, or inapplicable, it will not affect other provisions hereof that will remain valid and effective.
17.2 Set-off
The Partner is not authorised to offset any of its claims against any of SOPAGO’ claims, nor is it authorised to retain payments, in any manner, intended for SOPAGO regardless of the nature and/or purpose of such payments. SOPAGO is authorised to offset its claims against the claims of the Partner.
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17.3 Assignment
The Partner hereby grants its consent to the assignment of the rights and the assumption of the obligations of SOPAGO that arise hereunder to any SOPAGO Affiliate or any third party. For the avoidance of any doubt, the Partner may assign the Agreement or any of its rights, interests, or obligations under the Agreement to any third party exclusively with the prior written approval of SOPAGO.
17.4 Waiver
Neither Party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.
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17.5 No third-party Beneficiaries
The provisions of the Agreement will be binding upon and inure to the sole benefit of the Parties, their respective successors and permitted assigns, and it will not be construed as conferring any rights to any third party.
17.6 Entire Agreement
The Agreement, including these Terms and Conditions and other applicable terms to the relation of Parties as mentioned herein constitutes the entire agreement between Parties with respect to the subject matter hereof and supersedes all previous proposals, both oral and written, negotiations, representations, commitments, writings and all other communications between the Parties.
Schedule 1 - Definitions "Acceptable Use Policy" means a set of guidelines regarding the use of SOPAGO Services. Acceptable Use Policy is incorporated by reference into the Terms and Conditions and shall form an integral part of the Terms and Conditions.
"Affiliate(s)", with respect to an entity, the “Affiliate” is any other entity directly or indirectly controlling, controlled by, or under direct or indirect common control by the initial entity. An entity controls another entity if a such entity, directly or indirectly, either owns (i) 20% or more of the shares having ordinary voting rights for the election of directors of such entity; or (ii) the power to direct or cause the direction of management or policies of the other entity, whether through the ownership of voting securities, by contract, or otherwise.
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"Agreement" means Cooperation Agreement, any other agreement concluded between SOPAGO and Partner based on which SOPAGO Services shall be provided by SOPAGO to the Partner, Merchant Agreement, or any other agreement based on which Payment Processing Services shall be facilitated for the Partner by SOPAGO; by concluding the Agreement SOPAGO and Partner agree to be bound by these Terms and Conditions.
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"Confidential Information" means technical and non-technical information including patents, copyright, trade secrets, proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software, source documents, and information about current, future and proposed products and services, research, experimental work, development, design details and specifications, engineering, and any other information marked “confidential” or “proprietary” or which the recipient knows or has reason to know that the information shall be deemed confidential; for the avoidance of doubt, this term does not include any information that the receiving party may demonstrate by its written records: (i) was known to it prior to its disclosure by the disclosing party; (ii) is or has come into the public domain through no violation of confidentiality obligations; (iii) has been rightfully received from a third party authorised to make such disclosure; (iv) has been independently developed by the receiving party; (v) has been approved for release with the written authorisation of the disclosing party; or (vi) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt notice to enable the other party to seek a protective order or otherwise prevent such disclosure.
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"Cooperation Agreement" means an agreement concluded between SOPAGO and Partner based on which SOPAGO Services shall be provided by SOPAGO to the Partner, including all schedules and other documents appended thereto by reference.
"Customer" means the person requesting, being provided, or having been provided with Partner Services regardless of whether or not registered with SOPAGO Platform.
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"Customer Fees" means fees payable for Provided Partner Services by Customers (as determined by the respective Partner) and available on the SOPAGO Platform, including any Merchant Fees payable to SOPAGO.
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"Documentation" means user manuals, guides, technical documentation, technical requirements, and FAQs designed for some or all SOPAGO Services that may be made available to the Partner by SOPAGO.
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"Facility(-ies)" means hotel, hostel or any other facility operated by the Partner as specified in the Agreement.
"Fees" means Platform Fees, Merchant Fees, fees for installation, onboarding and/or training, and any other fees payable by the Partner for SOPAGO Services or any other services specified in the Agreement.
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"Force Majeure Event" means an event beyond the control of either Party, including, without limitation to, failure of power grid, failure of the Internet, natural disaster, weather event, war, riot, insurrection, epidemic, strikes, floods, acts of terror, a third party breach, failures, downtime, or delays by an internet service provider or Hosting Provider, or labour action, terrorism, denial of service attacks or other events beyond such Party’s reasonable control.
"Hosting Platform" means the Microsoft Azure hosting solution or other hosting platforms as notified by SOPAGO to the Partner from time to time.
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"Hosting Provider" means Microsoft Corporation or other providers of hosting for SOPAGO Services as notified by SOPAGO to Partners from time to time.
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"Legislation" means all generally binding legal regulations of the country of registration of SOPAGO and of the European Union, provided that such regulation directly and/or indirectly applies to the Parties’ legal relationships or SOPAGO Services.
"Listing" means Partner services made available by the Partner to Guests via SOPAGO Platform.
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“Terms and Conditions” means the current version of the Terms and Conditions including all schedules and other documents appended thereto by reference, which is also available on the relevant SOPAGO website and may be amended from time to time by SOPAGO.
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"SOPAGO" means SOPAGO’ Affiliate, specified as the contracting party in the Agreement.
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"SOPAGO Account" means an account created for the Partner on the SOPAGO Platform in order to access SOPAGO Services.
“SOPAGO Add-on” means product(s) operated directly by SOPAGO and available via SOPAGO Marketplace or via another means as offered by SOPAGO.
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“SOPAGO Marketplace” means the user interface at which SOPAGO makes available SOPAGO Add-on, Third-Party Marketplace Product or any other product(s) to the Partner.
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"SOPAGO Platform" means a software guest experience management platform made available by SOPAGO to the Partner based on the Agreement, as part of the SOPAGO Services.
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"SOPAGO Services" means Services provided by SOPAGO to the Partner through the SOPAGO Platform including, inter alia, facilitation of the accommodation booking process or any other Partner Services to the Customer, Reselling, installation, training, facilitation of Payment Processing Services and any other services provided or facilitated by SOPAGO based on the Agreement.
"Party" or "Parties" refers to both SOPAGO and the Partner, individually, or SOPAGO and the Partner jointly.
"Partner" means accommodation or other services provider or any other entity using the SOPAGO Platform, based on the Agreement with SOPAGO or whoever uses services provided by SOPAGO.
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"Payment Processing Services" means Payment Processing Services as defined in the Merchant Terms.
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"Platform Fees" means any fees agreed upon for the use of the SOPAGO Platform, as specified in the Agreement.
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"Provided Partner Service" means Partner Service ordered by Customer, as evidenced in the SOPAGO Platform, which has not been cancelled prior to consumption, notwithstanding such service was duly provided. Alternatively, Partner Service ordered and cancels any time before consumption if the total number of previously cancelled orders has already exceeded 5% of all Provided Partner Service orders within the same month.
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"Reselling” or “Reseller" means services provided by SOPAGO to the Partner using the SOPAGO Platform, where the agreement on the provision of services is concluded between the Customer and SOPAGO but the Partner Service is honoured by Partner for the benefit of Customers.
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"Partner Service(s)" means accommodation or other services that is published, offered or provided by the Partner to Customers via the use of SOPAGO Services, or in any other way with the assistance of SOPAGO.
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"Payment Services Provider" means Payment Services Provider as defined in the Merchant Terms.
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"Starting Date" means the date of commencement of the provision of SOPAGO Service being the day that login details for the SOPAGO Platform are issued unless otherwise agreed upon in the Agreement.
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"Term" means the term of the Agreement, as specified in clause 14.1. of the Terms and Conditions.
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"Terms of Hosting" means the Service Agreement & Terms (available at Microsoft Azure Legal Information | Microsoft Azure ) or other terms of the Hosting Provider (Microsoft Azure)
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"Territory" means territory defined in the Agreement.
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“Third-Party Marketplace Product” means software or services where the provider is the third party and are available via SOPAGO Marketplace or via another means as offered by SOPAGO; for the avoidance of doubt, Third Party Marketplace Product may be resold by SOPAGO via SOPAGO Marketplace or may be enabled or paid for through a third-party provider's website.