Terms of Services GENERAL TERMS AND CONDITIONS- MEGABON (B2B)
This General terms and conditions- Megabon (“T&C”) shall apply to all orders submitted or to be submitted by any person, who wishes their accommodation, including but not limited to hotels, mobile homes, camps, villas, apartments (“Hotel”) to be promoted and advertised in online marketing campaigns, which can increase international exposure (“Provider”) by Moderna Ventures S.A., company organized and existing under the laws of Switzerland, with its head office located at Via Industrie 25, 6512 Giubiasco (“Megabon”) and/or to any agreements between Provider and Megabon regarding the advertising or promotion of the Hotel of the Provider (collectively all orders and agreements between Provider and Megabon, pertaining to the subject matter hereof are referred to as “Agreement”). The Provider expressly declares that by submitting the order and therefor accepting this T&C, all of terms and conditions of business of the Provider are hereby excluded and not applicable.
1.1. In addition to terms defined elsewhere in this T&C, the following terms, unless the subject matter or context otherwise requires, shall have the following meaning: - “Affiliate” means any person which (directly or through one or more intermediaries) controls, is controlled by or is under common control with such specified person. For the purpose of this T&C control means having the power to direct or influence the direction of the management of a person, whether under contract, by holding shares, by having voting power or otherwise. - “Customer” mean any person who books the Hotel through Megabon website. - “Intellectual Property” means any invention, discovery, concept, expression or work, whether or not patented or patentable, including, without limitation, discoveries, compositions, know- how procedures, technical information, processes, methods, devices, formulas, protocols, techniques, designs and drawings, any physical embodiment thereof, and any patent, copyrights, trademarks, industrial designs and utility models, (and applications therefore), trade secrets or other intellectual property related thereto, including each party’s Confidential Information. - “Person” means any corporation, partnership, joint venture, limited liability company, organization, entity, authority or natural person; - “Third Party” mean any Person other than Megabon, Provider or any of their respected Affiliates; - “Trademarks” means any trademarks, design marks, logos and other commercial symbols owned by Megabon or which Megabon has the right to use, whether registered or not.
1.2. The division of this T&C into articles, insertion of headings is for convenience and reference only and shall not affect the construction or interpretation of this T&C.
2. Orders and Hotel Information
2.1. Order. By fulfilling and submitting Order Form (“Order”) the Provider accepts this T&C. Megabon may, at its sole discretion, reject any order or propose modification of Order to the Provider.
2.2. Hotel Information. By submitting the Order the Provider provides Megabon with information related to the Hotel, amnesties and services including but not limited to photos, videos, descriptions, availability, rates and pricing (including all applicable taxes, levies, surcharges and fees), payment terms, cancellation and no-show policies and other policies and restrictions (“Hotel Information”).
2.2.1. Accuracy and updating. The Provider shall at all times provide and be responsible that Hotel Information are true, not misleading and accurate. The Provider is responsible to keep the Hotel Information up-to-date and shall update i) availability of rooms; (ii) rates; (iii) other changes daily or more frequently, as required. Unless Megabon agrees otherwise, all changes, updates and/or amendments of the Hotel Information shall be made by Provider directly and on-line through online application of Megabon, accessible on http://megabon.octus7.si/order-form/ and/or the agreement (depends on the agreed terms between Provider and Megabon). Extranet or such other ways as Megabon may indicate. Updates and changes in respect of pictures, videos, and descriptions will be as soon as possible processed by Megabon. 2.2.2. Contact Information. Hotel Information shall not include any telephone or fax numbers, email or skype or other communication addresses, social media profiles or other direct references to the Hotel or its website, or websites of Third Parties.
2.2.3. Modification of Hotel Information. The Hotel Information shall remain the exclusive property of the Provider. However Megabon reserves the right, at any time and at its sole discretion, to modify and/or exclude any Hotel Information because i) they are incomplete, in violation of this T&C or otherwise inappropriate and/or ii) of the need to translate them into other languages and/or iii) other reason, as deemed appropriate by Megabon (collectively “Modified Hotel Information”). Modified Hotel Information shall be exclusive property of Megabon and shall be for the exclusive use of Megabon and shall not be used in any form by the Provider for any other distribution or sales channels or purposes.
2.2.4. Grant of rights related to Hotel Information and Intellectual Property. The Provider hereby grants Megabon a non-exclusive, royalty free and worldwide right and (sub)license to use, reproduce, distribute, sublicense, display and utilize (including, without limitation to publicly perform, modify, adapt, communicate, reproduce, copy and make available to public in any matter whatsoever) the Hotel Information and Intellectual Property.
2.2.5. Sublicensing and disclosing Hotel Information and Intellectual Property. Megabon may sublicense, make available, disclose and offer Hotel Information and Intellectual Property of the Provider and special offers made on the Websites and in addition make special offers available via or in collaboration with Affiliates and/or Third Parties websites. Megabon shall in no event be responsible for any acts or omissions on the part of such Third Party websites and the sole remedy of the Provider is to request from Megabon to (i) disable and disconnect from such Third Party website; or (ii) remove the Provider (including Hotel Information) from such Third Party website; or (iii) termination of the cooperation between the Parties, as defined in this T&C.
2.3. Availability. The Provider commits itself to make available a minimum number of rooms of certain type available during a certain term for sale via Megabon, as defined in Order Form.
2.4. Rates. The Provides shall give Megabon same or better rates for the same Hotel, same room type, same dates, same bed type, same number of guests, same or better restrictions and policies (e.g. breakfast, services, reservation changes, cancellation and no-show policies) as available on the Hotel websites, call centres (including customer reservation system), or directly at the hotel, with any offline, online competitor of Megabon, including booking agencies or intermediaries) and /or with another online or offline Third Party that is business partner of or in any way related to the Provider. For the avoidance of the doubt, the Provider hereby represents and warrants that the rate defined in Hotel Information is the best rate for the room and neither does the Provider or any Third Party offer equivalent room with the same check-in or check-out dates and the same booking conditions (“Best Room Guarantee”).
2.5 Exclusivity. In addition, Megabon shall have exclusive right to promote and advertise the offer contained in the Order form and the Provider shall not, directly or indirectly, advertise or promote the same offers as defined in the order form at any Third Party's online marketing campaign, for the period advertising or of validity of the Order. In the event of breach of this exclusivity provision, the Provider shall pay Megabon a contractual penalty in the amount of 10.000 (ten thousand) EUR, on Megabon's first demand.
3.1.1. Booking. Customer shall reserve the Hotel via Megabon website (“Booking”). The Provider shall receive notification email of every Booking made for their offer published on Megabon website. Megabon is not responsible for correctness and completeness of the information provided by the Customer (including the correct personal information, credit card information, dates of stay etc.), neither is responsible for payment obligations of the Customer relating to the Booking. The Provider shall check the notifications of Booking, updates and change of statuses regularly.
3.1.2. Contractual obligations. Booking creates contractual legal obligation directly between the Customer and the Provider. No legal obligation between Megabon and Customer is established. Therefore, the Provider hereby authorizes Megabon to conclude Booking by the Customer on Megabon website on its behalf, if in accordance with Hotel Information, there is availability at the Hotel. The Provider is bound to accept the Customer as a contractual party and handle the Booking in compliance with Hotel Information on Megabon website at the time the Booking was submitted by the Customer, including any additional information and/or wishes made by the Customer. 3.2. Complaints/claims 3.2.1. Responsibility and liability for Complaints/Claims. Any complaints and/or claims by the Customer arising out or in connection with the Hotel Information, the services offered, rendered or provided by the Provider or any shall be dealt exclusively by the Provider. Megabon shall have no obligation related to it and is not responsible or liable for any claims from the Guest. However, Megabon may, at its sole discretion offer Customer support services or acts as intermediate between the Provider and the Customer or otherwise assist Customer.
3.2.2. Best Rate Guarantee Complaints/Claims. The Provider represented and warranted, in accordance with Section 9, Best Rate Guarantee, which might be advertised on the Megabon website. In the event of a valid claim of the Customer related to Best Rate Warranty, Megabon shall notify the Provider of such claim with all relevant details. The Provider shall immediately adjust the rates made available at Megabon website and such lower rate shall be available for further Bookings. For the Bookings already made, the Provider shall immediately, adjust the rate in the reservation made by the relevant Customer or at the explicit refund Customer the money.
3.2.3. Applicable authority. In the event applicable authority in any country starts the procedures or investigating any claims and/or complaints arising out of the Customer and/or on its own initiative, concerning the provided Hotel Information, services offered, rendered or provided by the Provider (“Applicable Authority Procedures”), Megabon shall try to direct the applicable authority to the Provider, however if this will not be possible, the Provider shall provide to Megabon all support, documentation and anything else requested by applicable authority and shall indemnify and hold harmless Megabon from any and all damages (including legal fees), losses and any other costs that may occur to Megabon as a consequence of Applicable Authority Procedures.
3.3. Overbooking. The Provider shall be responsible for keeping Hotel Information, including availability up-to date and shall use its best efforts to meet the Bookings made over Megabon website. However in the event the booked room at Hotel is not available (“Overbooking”), the Provider shall immediately after finding out inform Megabon to email@example.com and firstname.lastname@example.org of such Overbooking and explain the reasons leading to Overbooking, whereas the subject shall be “Overbooking” and shall provide the Customer who booked the room an alternative arrangement of equal or superior quality in the same Hotel, at the expense of the Provider. In the event no alternative arrangement of equal or superior quality at the same Hotel is available, the Provider shall find (a) suitable alternative accommodation of an equal or better standard to booked accommodation; and (b) provide free transportation to the alternative hotel for the entire guest listed at the Customer’s Booking.
3.4.1. Cancellation of the Booking by the Provider. The Provider shall not in any event, except if explicitly defined in this T&C cancel the Booking.
3.4.2. Cancellation of the Booking by the Customer. The Customer may cancel the Booking in accordance with the cancellation policy of the Provider, as defined in Hotel Information. Cancellation might be subject to cancellation fee, if not cancelled before a certain time and date, as defined in Hotel Information (“Cancellation Fee”). Cancellation Fee is treated the same in the event of no-show by the Customer.
3.5.1. Booking Guarantee. For successful Booking the Customer has to provide valid credit card details, which is also guarantee for Booking (“Booking Guarantee”). Megabon is in no event responsible for verification of the credit card details, (pre)authorization of the credit card and/or the limit of credit on the date of the Booking. If the credit card offers no guarantee, the Provider shall offer the Customer different way to guarantee the Booking. If the Customer is unwilling or unable to provide alternative Booking Guarantee, the Provider may, at its sole discretion, cancel the Booking. If the Booking Guarantee made by the Customer is not sufficient and/or effective, such risk is burden of the Provider. Megabon shall carry no liability over insufficient Booking Guarantee of the Provider.
3.5.2. Payment terms. Hotel Information provided by the Provider when submitting the Order shall also include the payment terms, which shall be clearly stated and understandable for the Customer prior to making a Booking. The Provider may (i) request the 20 % deposit at the time of the Booking and the rest at the time of arrival to the Hotel (offers) or (ii) the entire sum payable for Booking shall be due at the arrival to the Hotel (direct booking). Provider will also accept gift cards, issued by Megabon, for the payment of services at the Hotel (“Gift Cards”) in accordance with terms and conditions defined on the Gift Card. If not otherwise defined, the Provider shall invoice Megabon the amount the Customer should paid in accordance with the Order Form to the Provider with a due date not less than 14 days after issuing such invoice. In the event of any unpaid amounts due by the Provider to Megabon, Megabon may settle such amounts without any prior notice.
3.5.3. Payment. The Provider shall be solely responsible for charging the Customer for the Booking, Cancellation Fee, including all applicable taxes the Provider is obliged to pay to the relevant authorities. Credit cards shall be charged in the same currency the Booking was made. If this is not possible, the Provider shall charge the Customer in a different currency with a reasonable and fair exchange rate.
3.5.4. Securitization of Credit Card Data. Provider is required to comply and to have its subcontractors to comply on an ongoing basis, with the requirements, compliance criteria and validation processes as set forth in the Payment Card Industry (“PCI”) Data Security Standard as promulgated from time to time by the major credit card companies.
3.5.5. Rates. Rates provided as the Hotel Information has to include all applicable fees, taxes and other extras, as clearly defined in the Hotel Information. In the event any other amounts are due upon arrival (in addition to the published rates), such amount shall be clearly defined in the Hotel Information, otherwise such additional charges are burden of the Provider. In the event any applicable taxes, fees, charges and levies cannot be reasonably calculated upfront and the Customer is required to pay them upon check-out, the Provider shall inform Megabon of any such additional expenses and the Provider shall define them (and therefor notify the Customer) on the Hotel Information.
3.6. Customer Data. Megabon will make available the Booking made by the Customer to the Provider, which reservation details will include (i) date of arrival; and (ii) number of nights; and (iii) the room type; and (iv) the Customer’s name, address and credit card details; and (v) other specific requests made by the Customer (collectively “Customer’s Data”). The Customer Data will be provided to the Provider only fort he purpose of fulfilment of this Agreement.The Provider shall become the contoller of the Customer's Data from the date the Customer's Data are made available to the Provider and the Provider shall not use Customer Data to directly offer, advertise or promote the Hotel’s services and offers them directly, neither shall the Provider contact the Customer for any other reason, except the reason related to the Booking. After the fulfilment of this Agreement the Provider is obliged to cease the use of Customer's Data and delete Customer's Data.
3.7. Reviews of the Customers. Customers will be asked by Megabon to review the Hotel they have stayed in and score certain aspects of their stay. Megabon reserves the right to post the reviews and scores on the Megabon website and the Provider acknowledges that Megabon is only distributor and not author or publisher of such reviews and/or scores and is not responsible for their content and/or consequences of such reviews and/or scores. However, Megabon shall use reasonable efforts to monitor and review the Customer reviews and reserves the right to refuse, edit or remove unfavourable reviews in the event of they are inappropriate or mention individual’s name.
4. Commission and payment
4.1. Commission. For each Booking made by Customer via Megabon website, the Hotel shall pay to Megabon commission, as defined in Order Form and agreed upon between the Parties (“Commission”). The Commission per Booking is calculated from the aggregate sum of (i) the number of nights stayed at the Hotel by the Customer, (ii) the booked rate per room per night (including all applicable taxes or levies and other extra’s, fees, surcharges which are included in the rate at the time of the Booking by the Customer; and (iii) the number of booked rooms by the Customer. In the event the Customer cancels the Booking and the Provider is entitle to Cancellation Fee, the Provider shall pay to Megabon a Commission calculated from the Cancellation Fee. In the event of offers and certain percentage paid directly to Megabon by the Customer, the Commission payable accordingly defined in that prepayment to the Megabon.
4.2. Payment. Megabon shall submit invoice for Commission payment in the beginning of each month for all the payments due by the Customer to the Provider in the previous month, as defined in Section 4.1. Invoices shall be submitted to the Hotel by email to the email address provided in the Order Form. The Provider shall pay the invoiced amount of the Commission within 7 (seven) days from the invoice date by the means of bank transfer to the account stated on the invoice. The Provider shall bear all costs and expenses charged by the banks for the transfer of Commission.
4.3. Late payments. In the event of late payments, Megabon shall be entitled to receive legal interest rate applicable in Switzerland. In addition, Megabon reserves the right to reducing the ranging of the Provider in the listing of the hotels on Megabon web-site as defined in Section 6 and/or to suspend the Order and/or to ask a bank guarantee or other form of financial security from the Provider..
4.4. Dispute regarding the Commission. In the event of dispute regarding the amount of Commission between the Parties, the Provider will be obliged to pay the undisputed amounts regardless of the status and nature of the dispute.
5. Reporting, auditing and verification
5.1. Reporting. The Provider is aware that for Megabon is crucial to receive up-to-date Hotel Information regarding availability and services provided by the Hotel and the Provider, status of Bookings and payments by the Customers to the Provider and amounts due by the Provider to Megabon and shall provide or grant access to Megabon such information on daily basis.
5.2. Audit.Provider agrees Megabon shall have the right to audit and review, or to engage thirdparty consultants or auditors (“Auditors”) to review and audit any and all facilities, property, contracts, agreements, correspondence, books, accounts and other information relating to Providers business or the agreement in this T&C following 14 (fourteen) days prior notice to Provider, at sole discretion by Megabon. Provider shall fully cooperate with Auditor to conduct any such inspection or audit.
5.3. Costs. Megabon shall burden all the costs related to the Audit, except in the event the audit shall reveal the Provider is not in compliance with this T&C. In such event, the Provider shall carry and/or indemnify all such costs and expenses to Megabon. In the event the information failed to correspond to information provided by the Provider or some incompliance was discovered in the course of the audit, Provider shall pay Megabon contractually set penalty in the amount of 2 times the revenue generated and Megabon shall have the right to terminate this T&C at any time without any obligation to Provider.
6. Marketing and promotion
6.1. Marketing. Megabon is entitled, but not obligated, to promote the Hotel using the Hotel Information in online marketing, including email marketing and/or pay per-click (PPC) advertising and/or any other sales channel, at Megabon sole discretion.
6.2. Hotel Information and Provider’s Intellectual Property. The Provider hereby grants Megabon a non-exclusive, royalty free and worldwide right and license (or/and sublicense) to use, reproduce, have reproduced, distribute, sublicense, communicate and make available, display and utilize (including without limitation to publicly perform, modify, adapt, communicate, reproduce, copy and make available whatsoever in any manner) Hotel information and Provider’s Intellectual Property Rights.
6.3. Direct Marketing of the Provider. The Provider shall not target Customers that have booked via Megabon and will not specifically target Megabon Intellectual Property through keyword purchases.
6.4. Ranking. The listing of the Hotels on the Megabon websites (“Ranking”) is determined automatically and unilaterally by Megabon and is influenced by various factors, including but not limited to the agreed Commission, availability, number of bookings related to the number of visits (“Conversion”), the realization by the Provider, ration of cancellations, guest reviews and scored, customer service history and on-time payment of the Commission. The Provider shall not make any claims against Megabon related to the ranking of Hotels.
6.5. Preferred Program. Megabon offers a preferred program for certain Hotels which meet and maintain certain criteria (“Preferred Program”), which operates by invitation of Megabon to eligible Hotels and/or Providers, who meet certain qualifying performance criteria and are determined by Megabon sole discretion: (i) higher than average Conversion compared to all Hotels which are serviced by Megabon in each Hotel destination; and (ii) higher than average availability percentage compared to all hotels which are serviced by Megabon in each Hotel destination; and (iii) lower than average cancellation percentage compared to all hotels which are serviced by Megabon in each Hotel destination; and (iv) an unbroken record of paying Commissions on time and in full. Megabon will advertise Hotels in Preferred Program as “Preferred Hotels”. If a Preferred Hotel ceases to be eligible for the Preferred Program it will be listed as a standard hotel.
6.6. Third Party Web-Sites. In the event Megabon sublicense, makes available, disclose or offer the Hotel Information, including Intellectual Property rights of the Provider and special offers made available by the Provider to websites, not owned or licensed by the Provider or its affiliates (“Third Party Web-Sites”), Megabon shall in no event be liable to the Provider for any acts or omissions on the part of Third Party Web-Sites. The sole remedy of the Provider in respect of such Third Party Web-Sites in to request from Megabon, which has the right, but no obligation, to (i) disable and disconnect Third Party Web-Sites, or (ii) remove the Provider, including Hotel Information from such Third Party WebSite, or (iii) termination of this T&C, in accordance with this T&C.
7. Intellectual Property
7.1. Intellectual Property. Parties agree that the Intellectual Property developed and owned by Megabon (including, without limitation, graphic design and all Megabon materials), shall remain the Intellectual Property of Megabon and that the Intellectual Property and no grant of rights related to Intellectual Property of Megabon is hereby granted to the Provider.
7.2. Challenging of Intellectual Property. Provider agrees never to challenge, during the term of this T&C or any time thereafter, the validity of the Intellectual Property or Megabon full and exclusive ownership. Provider accepts and recognizes that strict compliance with Megabon instructions is a condition essential to the continuance of this T&C and that any failure to comply therewith will automatically entitles Megabon to terminate this T&C.
7.3. Intellectual Property of the Provider. The Provider agrees if it becomes aware of behaviour of Third Party Websites breaching Provider’s Intellectual Property, the Provider shall notify about such breach Megabon in writing immediately after finding out about it and will use reasonable efforts to ensure the relevant Third Party takes steps to remedy the breach.
8. Confidentiality and protection of personal data
8.1. Confidential Information. By virtue of this T&C, the Parties may have access to information that is confidential to one another. All data and information, terms and pricing and all other business terms and conditions, as well as data and information exchanged between the Parties in relation to this G&T are identified as confidential (“Confidential Information”)
8.2. Exceptions. Confidential Information shall not include information that: - Is or becomes a part of public domain through no act or omission of the other Party; - Was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party directly or indirectly from the disclosing Party; - Is lawfully disclosed to the other Party by a third party without restriction on disclosure; and - Is independently developed by the other Party.
8.3. Confidentiality. The Parties agree to hold Confidential Information in confidence during the term of this G&T and for a period of 5 (five) years after expiration or termination. The Parties agree, unless required by law, not to use itself or make each other’s Confidential Information available in any form to any third party for any purpose other than the implementation of this T&C. Each Party agrees to take reasonable steps to ensure Confidential Information is not disclosed or distributed by its employees or agents.
8.4. Personal Data. Parties shall use commercially reasonable efforts to safeguard the confidentiality and privacy of Consumer Data and to protect it from unauthorized use and release. Parties agree to comply with applicable legislation relevant for protection of Personal Data.
9. Responsibilities and representations of the Provider
9.1. Representations and warranties. Provider represents and warrants: - that Hotel Information provided to Megabon and further to the Customer is in compliance with local and EU legislation in force; - to accept and manage Customer’s complaints, complying with consumer protection laws and other applicable legislation in force and handle applicable local authorities claims, arising from the promotion and advertising; - to keep Megabon fully informed and comply with all policies and operating procedures of Megabon, as established and issued by Megabon from time to time; - the performance of this T&C have been duly authorized by all necessary action, including corporate approvals and Board resolutions and all authorizations, consents, approval and licenses required for performance of this T&C have been obtained; - to obtain all licenses, permits and approvals which are necessary or advisable for the performance of duties hereunder; - to comply with all policies, general terms and conditions, operating procedures and instructions of Megabon, as established and issued by Megabon; - that the Provider has no obligations, legal or otherwise, inconsistent with the terms and conditions of this T&C; - that the performance of this T&C does not violate any applicable law, rule or regulation or any proprietary or other right of any third party; - that the Provider will not enter into or will enter into any agreement in conflict with this T&C.
9.2. Breach. In the event of breach of any of the Provider warranties and representations, Megabon may, at its sole discretion (i) terminate the Agreement with immediate effect, and (ii) receive the full reimbursement of all damages, costs and expenses.
10.1. Provider shall indemnify and hold Megabon and its Affiliates harmless from any damages, expenses losses or liabilities, including, without limitation, reasonable attorney’s fees, arising out of, resulting from or based upon (i) any Third Party claim against Megabon which is caused by negligence or wilful misconduct of Provider (ii) all claims made by the Customers concerning inaccurate, erroneous or misleading information of the Hotel Information; (iii) all claims made by Customers concerning a stay in the Hotel, overbooking or (partly) cancelled or wrong reservations; (iii) all claims made by Customers regarding or pursuant to the Best Rate Guarantee if not settled between the Provider and the Customers. Provider shall in case of breach of any of its obligations, duties, warranties and representations defined with this T&C pay to Megabon all damage and as well recover all costs that Megabon might occur.
10.2. Each Party acknowledges that the remedies at law may be inadequate to protect the other Party against any breach of this Agreement and without prejudice to any other rights and remedies otherwise available to the other Party, each Party will be entitled to injunctive relief and specific performance.
11.Term and termination
11.1. Term. This T&C shall be concluded for a period, defined on the Order Form (“Term”), unless terminated sooner pursuant to this T&C. Notwithstanding the previous, all contractual obligations of the Provider towards Megabon and/or the Customers remain in full force and valid after the expiry and/or termination.
11.2. Termination. This T&C may be terminated during the Term by either Party without a cause, by giving the other Party 30 (thirty) days prior written notice of its intention to terminate and this T&C shall terminate automatically after the expiry of 30 (thirty) days after such notice.
11.3. Termination for a breach. This T&C may be terminated during the Term by either Party by written notice to the other if that other Party commits a breach of any of the provisions of this T&C and, in the event of a breach capable of remedy, fails to remedy the same within 5 (five) days after the receipt of written notice requiring to be remedied. In addition Megabon may terminate this T&C in the event of overcharges to the Customers, unsubstantiated charges of Customer’s credit card, legitimate complaints of Customers, misuses of Customer’s review, inappropriate or unprofessional behaviour and similar.
11.4. Immediate termination. This T&C may be terminated during the Term by either Party by written notice to the other if: - that other Party makes any voluntary arrangement with its creditors or becomes subject to an administration order; - that other Party goes into liquidation; - anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that other Party; or - that other party ceases, or threatens to cease, to carry on business.
11.5. Survival. Termination of this T&C for whatever reason shall neither release any party hereto from any liabilities, obligations, or agreements which, pursuant to any provisions of this T&C, are to survive or be performed after termination or expiration, nor shall it release any Party from its liability to pay any sums of money accrued, due, and payable to the other Party or to discharge its then accrued and unfulfilled obligations. The rights to terminate this T&C given by this clause shall be without prejudice to any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
12.1. Assignment. The Provider shall not be entitled to assign, transfer, encumber any of its rights and/or obligations under this G&T, without the prior written consent of Megabon, which may be withheld by Megabon sole and absolute discretion, provided that Megabon may assign, transfer, encumber any of its rights and/or obligations under this T&C (in whole or in part or from time to time) to an Affiliate without prior notice or approval required. By assignment of this G&T, the contractual relation is assigned to assignee each time upon the receipt of written notice of assignment. No further consent or approval is needed.
12.2. Independent Contractors. In all matters relating to this T&C, Parties will act as independent contractors. Neither Party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other Party, nor to represent the other Party as agent, employee, franchisee, or in any other capacity.
12.3. Entire Agreement. Parties agree this T&C together with all attachments and annexes to it (including, but not limited to Order Form) represent the entire agreement and supersedes all prior or contemporaneous agreements, warrants or representations made between the Parties.
12.4. Severability. If any provision of this T&C shall be held illegal, invalid, void or unenforceable under any present or future law, provided that the rights or obligations of the Parties under this T&C will not be materially and adversely affected thereby (a) such provision will be fully severable; (b) this T&C will be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof; and (c) the remaining provisions of T&C will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance here from.
12.5. Force Majeure. Neither Party shall be liable to the other for failure or delay in the performance of a required obligation if such failure or delay is caused by act of fire, act of government or state, war, civil commotion, insurrection, natural disaster or other similar cause beyond Party's control, provided that the party gives prompt written notice of such condition and resumes its performance as soon as possible, and provided further that the other party may terminate this T&C if such condition continues for a period of 30 (thirty) days. The implementation of this T&C shall be suspended during the period in which the Force Majeure reason is in force.
12.6. Governing Law and Jurisdiction. This T&C, including all attachments to it, and all matters arising out of it, or relating to the performance of it, shall be governed by the laws of Switzerland. The applicable court in Lugano, Switzerland shall have exclusive jurisdiction with regard of any legal action or proceeding relating to this T&C.
12.7. Notices. Any notice or other document to be given under this Agreement shall be in English language in writing and shall be deemed to be duly given only if received and/or forwarded to Contact Person designated in the Order Form or on domicile address of the Party, by registered mail.
12.8. Language. This T&C are concluded in English language only. English Language is original and the only one legally binding document for the Parties; all translations in other languages are for convenience only and shall have no binding power.
The effective date of this T&C is 25.05.2018. MODERNA VENTURES SA