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The vacation rental property is located at:
2.1. This Master Agreement (“hereinafter Master Agreement”) is between Adonis AS, NO 947 812 815 (“hereinafter Adonis”) located at Roeo 91, 5457 Hoeylandsbygd, Norway and Customer, is effective on the date set forth in the referencing Schedule and specifies the terms and conditions agreed between the Parties as a foundation for their relationship as further defined in the applicable Addendums.
2.2. The Master Agreement may incorporate any applicable Addendum referenced in the applicable Schedule that is signed separately by the Parties.
3.1. This Master Agreement does not entitle Customer’s Affiliates to directly purchase any Adonis Products and Services from Adonis unless such Affiliate enters into a participation agreement with Adonis to adopt and adhere to the terms for this Master Agreement and applicable Addendums.
3.2. Any terms that may appear on the Customer’s purchase order shall not apply to the Agreement and shall be deemed null and void.
3.3. Where delivery is required, the Adonis Products and Services will be delivered by electronic delivery (ESD) from Adonis’ shipping point. To the extent that the Adonis Products and Services involves Adonis Software, and if the Adonis Software is delivered by ESD, the obligation to deliver the Adonis Software shall be complete upon transmission of such software electronically to Customer. At that time and place, all risk of loss of the copy of the Adonis Software shall pass to Customer.
4.1. The Parties agree that when receiving Confidential Information from the disclosing Party, the receiving Party shall hold it in confidence and shall not disclose or use such information except as permitted under the Agreement. The receiving Party shall treat the disclosing Party’s Confidential Information in the same manner as it treats its own proprietary and/or confidential information, which shall not be less than a reasonable standard of care, and Confidential Information only for the purposes described in the Agreement. Confidential Information may be disclosed to receiving Party’s employees, agents, financial advisors, contractors and attorneys on a need-to know basis and the receiving Party shall ensure that such persons maintain such Confidential Information pursuant to the terms of the Agreement.
4.2. The receiving Party shall be permitted to disclose Confidential Information in connection with a judicial or administrative proceeding to the extent that such disclosure is required under applicable law or court order, provided that the receiving Party shall, where reasonably possible, give the disclosing Party prompt and timely written notice of any such proceeding and shall offer reasonable cooperation in any effort of the disclosing Party to obtain a protective order.
4.3. Confidential Information shall exclude: (i) information which the receiving Party has been authorized in writing by the disclosing Party to disclose without restriction; (ii) information which was rightfully in the receiving Party’s possession or rightfully known to it prior to receipt of such information from the disclosing Party; (iii) information which was rightfully disclosed to the receiving Party by a third Party having proper possession of such information, without restriction; (iv) information which is part of or enters the public domain without any breach of the obligations of confidentiality by the receiving Party; and (v) information which is independently developed by the receiving Party without use or reference to the disclosing Party’s Confidential Information.
4.4. Nothing in the Agreement will (i) preclude Adonis from using the ideas, concepts and know-how which are developed in the course of providing any Adonis Products and Services to Customer or (ii) be deemed to limit Adonis’ rights to provide similar Adonis Products and Services to other customers. Customer agrees that Adonis may use any feedback provided by Customer related to any Adonis Products and Services for any Adonis business purpose, without requiring consent including reproduction and preparation of derivative works based upon such feedback, as well as distribution of such derivative works.
4.5. The receiving Party agrees, upon request of the disclosing party, to return to the disclosing Party all Confidential Information in its possession or certify the destruction thereof.
4.6. In the event of a breach of this section, the disclosing Party may not have an adequate remedy at law. The Parties, therefore, agree that the disclosing Party may be entitled to seek the remedies of temporary and permanent injunction, specific performance or any other form of equitable relief deemed appropriate by a court of competent jurisdiction. For Confidential Information that constitutes a trade secret and for Adonis software (including code) and Documentation, the material terms of the Agreement, and Customer’s and/or Adonis’ Confidential Information expressly designated in writing as perpetually confidential, the obligations of this section are perpetual and shall survive termination. For all other Confidential Information, the foregoing obligations shall extend for five (5) years from the date of initial disclosure.
5.1. The Customer agrees to pay for the Adonis Products and Services in accordance with the applicable Schedule. The Customer agrees to pay any applicable VAT, GST, sales tax, and any other applicable taxes (collectively the Taxes) in addition to the fees when such payments are due.
5.2. In the event of late payment Adonis may charge late interest and fees at current rates compounded for the entire period or the maximum amount allowed by law unless the Customer has a bona fide dispute supported by a written explanation. If Customer’s account is overdue, Adonis reserves the right to withhold performance of its obligations under the Agreement, without liability, until such amounts are paid in full. Customer agrees that Adonis may disable or interrupt the functionality of any Products and Services or refuse to renew or replace any Products and Services, rendering some or all aspects of the Products and Services unusable by Customer, at any time to enforce its rights under the Agreement.
5.3. All fees are non-cancellable and non-refundable unless a pro-rated refund applies as provided in the applicable Addendum.
5.4. All prices will be adjusted yearly according to EU Consumer Price index. Taxes and other fees may apply. Unless agreed elsewhere in the contract
Adonis retains all rights, title, copyright, patent, trademark, trade secret and all other proprietary interests to all Adonis Products and Services and any derivatives thereof. No title, copyright, patent, trademark, trade secret or other rights of intellectual property not expressly granted under the Agreement is exchanged between the Parties.
Under no circumstances shall Adonis have any responsibility or liability to Customer with respect to any product or service provided by a third party even if such product or services was resold or distributed by Adonis. Such products and services are provided “as is” without warranty of any kind either express or implied. Customer acknowledges and agrees that the performance warranties set forth in the applicable Addendums and Adonis indemnification obligations below, do not apply to any product or service provided by a third party even if such product or services was resold or distributed by Adonis.
8.1. Adonis will indemnify, defend and/or, at its option, settle any third party claims that Customer’s use of the specific Adonis Products and Services licensed or purchased by Customer under this Agreement infringes any valid patent or copyright within the jurisdiction where Customer is authorized to use the Adonis Products and Services. Adonis may, at its sole option and expense: (i) procure for Customer the right to continue to use the Adonis Products and Services; (ii) repair, modify or replace the Adonis Products and Services so that it is no longer infringing,; or if (i) and (ii) are not commercially practicable, (iii) provide a pro-rated refund of the fees paid for the Adonis Products and Services which gave rise to the indemnity calculated against the remainder of the Term from the date it is established that Adonis is notified of the third Party Claim.
8.2. Adonis shall have no liability: (i) in the event the allegation of infringement is a result of a modification of the Adonis Products and Services except a modification by Adonis, (ii) if the Adonis Products and Services is not being used in accordance with Adonis’ specifications, related documentation and guidelines, (iii) if the alleged infringement would be avoided or otherwise eliminated by the use of an Adonis published update or patch provided at no additional charge, or (iv) if the alleged infringement results from a combination of the Adonis Products and Services with any third party product. The indemnifications contained herein shall not apply and Adonis shall have no liability in relation to any Adonis Products and Services produced by Adonis at the specific direction of Customer. THE FOREGOING PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF ADONIS REGARDING CLAIMS OF INFRINGEMENT, AND THE EXCLUSIVE REMEDY AVAILABLE TO CUSTOMER WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS.
8.3. Each Party shall indemnify the other against all damages, fees (including reasonable attorney’s fees), fines, judgments, costs and expenses as a result of a third party action alleging a bodily injury or death which arises from the provision of services under the Agreement, provided that such liabilities are the proximate result of gross negligence or intentionally tortious conduct on the part of the indemnifying Party.
8.4. Customer agrees to indemnify and defend Adonis against any claim, demand, suit or proceeding made or brought against Adonis by a third party alleging that any Customer Data infringes or misappropriates such third party’s intellectual property rights or arising from Customer’s use of any Products and Services in violation of the Agreement, the Documentation, Schedule or applicable law (each a “claim against Adonis”), and Customer will indemnify Adonis from any damages, attorney fees and costs finally awarded against Adonis as a result of, or for any amounts paid by Adonis under a settlement approved by Customer in writing of, a Claim Against Adonis.
8.5. Customer shall have no liability: (i) in the event the allegation of infringement is a result of a modification of the Customer Provided Materials by Adonis, (ii) if the alleged infringement would be avoided or otherwise eliminated by using materials provided by the Customer to replace the infringing Customer Provided Materials; or (iii) if the alleged infringement results from a combination of the Customer Provided Materials and any third party products. THE FOREGOING PROVISIONS STATE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY AND OBLIGATIONS OF CUSTOMER REGARDING CLAIMS OF INFRINGEMENT WITH RESPECT TO CUSTOMER PROVIDED MATERIALS UNDER THE AGREEMENT.
8.6. The above indemnities are contingent upon: (i) the indemnified Party providing prompt notice of any claim of infringement and assistance in the defense thereof, (ii) the indemnifying Party’s sole right to control the defense or settlement of any such claim, provided that the settlement does not require a payment or admission of liability on the part of the other Party, and (iii) the indemnified Party not taking any actions or failing to take actions that hinder the defence or settlement process as reasonably directed by the indemnifying Party.
Under no circumstances shall Adonis be liable for any losses relating to the Adonis Products and Services or the actions of Adonis in connection with this Agreement that was not brought to its attention by Customer in writing within ninety (90) days of its occurrence or discovery by Customer. No claim for Losses or other relief arising out of this Agreement or the Adonis Products and Services may be filed by Customer more than two (2) years following its delivery to Customer. EXCEPT IN THE CASE OF A BREACH OF EITHER PARTY’S CONFIDENTIALITY OR INFRINGEMENT OF ADONIS’ INTELLECTUAL PROPERTY RIGHTS, AND OF THIRD PARTY CLAIMS ARISING UNDER THE INDEMNIFICATION SECTION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NEITHER PARTY (INCLUDING ANY OF ADONIS’ SUPPLIERS) SHALL BE LIABLE FOR A) ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY NATURE, INCLUDING, BUT NOT NECESSARILY LIMITED TO, LOSS OF PROFIT, DAMAGES RELATING TO MONIES SAVED OR FEES GENERATED AND OR ANY LOSS OF DATA BY USE OF ANY ADONIS PRODUCTS AND SERVICES, REGARDLESS OF WHETHER SUCH LOSS WAS FORESEEABLE OR A PARTY WAS APPRISED OF THE POTENTIAL FOR SUCH DAMAGES, AND B) IN NO EVENT WILL A PARTY’S LIABILITY, EXCEED THE FEES PAID AND OR OWED FOR THE PRODUCT OR SERVICE THAT GAVE RISE TO THE BREACH DURING THE PREVIOUS TWELVE (12) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “FEES” SECTION ABOVE.
10.1. This Master Agreement shall continue in effect unless otherwise terminated in accordance with this section.
10.2. The initial term of each Subscription and/or Maintenance period shall be as specified in the applicable Schedule. Subscriptions and/or Maintenance will automatically renew for additional periods equal to the expiring subscription term, unless either Party gives the other notice of non-renewal at least six (6) months before the end of the relevant term.
10.3. This Master Agreement and/or applicable Addendum(s) and/or the applicable Schedule may be terminated by either Party (a) upon a material breach by the other Party, provided that, in each instance of a claimed breach: (i) the non-breaching Party notifies the breaching Party in writing of such breach; and (ii) the breaching Party fails to either cure such breach within thirty (30) days (or such other period as mutually agreed by the Parties) of receipt of such notice; or (b) upon insolvency of the other Party if permitted by law.
10.4. Termination does not release either Party from any liability which, at the time of such termination, had already accrued to the other Party or which is attributable to a period prior to such termination, nor preclude either Party from pursuing any rights or remedies it may have under law or in equity with respect to any breach of this Agreement. Excepting for termination based on Adonis’ uncured material breach, all fees are non-cancellable and non-refundable unless a pro-rated refund applies as provided in an applicable Addendum. In the event of a termination by Adonis for an uncured material breach by Customer, all fees shall immediately become due and payable.
11.1. Any dispute, controversy or claim arising out of the Agreement (a "Dispute") shall be resolved as provided in this section. Prior to the initiation of formal dispute resolution procedures, the Parties shall first meet in an effort to resolve the Dispute. If Customer and Adonis are unable to resolve the Dispute within thirty (30) days, then each of Adonis and Customer will appoint one (1) senior executive who is not involved on a day-to-day basis with the subject matter of the Agreement to negotiate a resolution to the Dispute.
11.2. Formal proceedings for the resolution of a dispute may not be commenced until the earlier of (i) the good faith determination by the appointed senior executives that resolution of the Dispute does not appear likely; or (ii) thirty (30) days following the date that the Dispute was first referred to the appointed senior executives. The provisions of paragraphs (i) and (ii) will not be construed to prevent a Party from instituting formal proceedings to the extent necessary to avoid the expiration of any applicable limitations period or to pursue equitable rights or injunctive remedies deemed reasonably necessary to protect its interests.
12.1. Adonis Administrator. The Customer agrees to appoint at least one administrator and a backup administrator that shall serve as Adonis’ primary contact for Maintenance and services (“Adonis Administrator”). The Customer agrees that these Adonis Administrators will complete the necessary training to comply with Adonis’ requirements for the Adonis Administrator designation. Adonis will rely on all oral and written orders and instructions
12.2. Amendments. The terms of the Agreement may only be amended by mutual written agreement of the Parties.
12.3. Force Majeure. Except for payment obligations and Confidentiality obligations, neither Party will be liable for any action taken, or any failure to take any action required to be taken, as a result of circumstances beyond a Party’s control, including, without limitation, strike, lockout, any other failure, interruption or error not directly caused, or reasonably anticipated, by Adonis, or any reason which according to English law will be considered force majeure. To the extent the performance of this Agreement in whole or in part is prevented or is in any substantial way made difficult for reasons mentioned above, each party may in such case terminate this Agreement with one month's written notice of the force majeure situation makes it substantially burdensome for that party to perform its obligations under the terms of this Agreement.
12.4. Order of Precedence. Any conflict or inconsistency among or between the terms and conditions of the documents comprising the Agreement shall be resolved according to the following order of precedence, from the document with the greatest control to the least: (1) the Data Processing Agreement, (2) the Schedule; (3) the relevant Addendum; (4) this Master Agreement. Notwithstanding this Order of Precedence, a Customer issued purchase order shall have no force or effect whatsoever and shall not modify the terms of the documents indicated herein.
12.5. Independent Contractors. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
12.6. Data Processing. To the extent that Adonis is going to process personal data on behalf of the Customer, the Addendum for Data Processing Agreement shall be applicable.
12.7. Customer Data. Customer represents and warrants that (i) it has the right, including consent where required, to lawfully transfer to Adonis all Customer Data and any other data or information related to Customer’s access or use of an Adonis Product and Service, (ii) its use of the Adonis Products and Services shall at all times comply with applicable law, including, but not limited to, the European Union General Data Protection Regulation; (iii) it is responsible and liable for all activities that occur in user accounts, and (iv) it shall not misuse any Adonis Products and Services by sending spam or otherwise duplicative or unsolicited messages or store infringing, obscene, threatening, or otherwise unlawful material or material that violates third party privacy rights.
12.8. Assignment. The Agreement may not be assigned by Customer without the prior written consent of Adonis, such consent not to be unreasonably withheld.
12.9. Export/Re-export. If an authorization is required for software and technology which Adonis has delivered, the Customer is responsible to provide any necessary authorization from the country of origin/production prior to any export or re-export of the products.
12.10. Audit. Adonis reserves the right, on 30 days’ notice to the Customer, to conduct an audit remotely or onsite of Customer and/or its Affiliates’ facilities to verify Customer’s compliance with the terms of the Agreement. Adonis agrees that such audit shall be conducted during regular business hours at Customer’s offices and Adonis shall endeavor to conduct such audit so as not to interfere unreasonably with Customer’s activities. Adonis may use a mutually agreed upon independent third party to conduct the audit subject to terms of non-disclosure, of required by Customer. Unless supported by reasonable suspicion of a deviation from the terms of the Agreement, audits shall be no more frequently than once per the calendar year.
12.11. Non-solicitation for hire. The Parties agrees that during the term of this Agreement, and for a period of twelve (12) months after termination of this Agreement, the Parties will not directly solicit for hire any employee to leave the employment of the Parties and their affiliated companies or to hire/retain such person(s). The Parties agree that these provisions are necessary and reasonable to protect the legitimate business interests of the Parties and its affiliated companies have in protecting substantial investments in such employees.
12.12. Interference and Competition. The Parties shall not, directly or indirectly, during the term of this Agreement: (i) induce or influence any employee of the Parties or any other person or entity to terminate their relationship with the Parties; or (ii) use the Parties’ Products and Services to produce a product or service that competes with the Parties’ Products and Services.
12.13. Announcements. Customer grants Adonis a royalty-free, limited, nontransferable (except in connection with an assignment of this Agreement), nonexclusive license during the term of this Agreement to use and display Customer’s logos and trademarks in customer lists, advertising materials, trade show materials and other literature identifying Adonis customers. Adonis may issue a press release regarding the transaction with the Customer.
12.14. Counterparts. This Master Agreement, any Addendum and any Schedule as applicable may be signed in any number of counterparts and each part shall be considered part of the whole and valid, legally binding document.
12.15. Notice. All notices hereunder shall be delivered to the other party identified in the Agreement either personally, via e-mail to Management Contacts, certified mail or overnight courier. If delivered personally, notice shall be deemed effective when delivered; and if delivered via e-mail, certified mail or overnight courier, notice shall be deemed effective upon confirmation of delivery. Adonis shall confirm receipt of the Notice either by phone or email within 5 work days.
12.16. Headings. The section headings used herein are for information purposes only and shall not affect the interpretation of any provision of this Agreement
12.17. Validity. In the event any term or provision of the Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of the Agreement.
12.18. Third Parties. There are no third-party beneficiaries under this Agreement.
12.19. Governing Law and Jurisdiction. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH ENGLISH LAW and any claim or dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be subject to the jurisdiction of the English High Court of Justice in London, England.
12.20. Survival. Sections pertaining to Confidentiality, Title, Limitation of Liability and Termination shall survive termination of this Master Agreement.
12.21. Entire Agreement. The Agreement and all documents incorporated by reference herein shall comprise the entire agreement as pertaining to the subject matter hereof and all other prior representations, proposals, and other such information exchanged by the Parties concerning the subject matter are superseded in their entirety by the Agreement.