1.1 “Atomize” referred to in these general terms and conditions (the “General Terms”) is Atomize AB, a company limited by shares incorporated in Sweden under company registration number 559074-3596. The “Customer” referred to herein is the company that has ordered Services (as defined below) from Atomize by executing an Atomize Setup Form (as defined below). Atomize, and the Customer are jointly referred to as the “Parties”, and each a “Party”.
1.2 These General Terms shall apply to all Services performed by Atomize for the Customer as of the date of the last signature on the applicable Atomize Setup Form (“Effective Date”). These General Terms constitute an integral part of the Agreement between Atomize and the Customer (the “Agreement”). The Agreement consists of (i) Atomize’s Order Form, which refers to these General Terms and (ii) these General
1.3 In case of contradiction between any terms of Atomize Setup Form and these General Terms, the Atomize Setup Form shall
1.4 No exemption, waiver, or modification of the Agreement shall be binding for Atomize unless expressly agreed upon in writing and signed by a duly authorized representative of Any general terms introduced or referred to by the Customer shall only apply if approved by Atomize in writing.
In this Agreement:
“Atomize Setup Form” shall mean each form covering an order of Services executed by the Customer and Atomize under the terms of this Agreement for any Property.
“Business Day” shall mean a day when banks in Sweden are open for general banking business (other than over the Internet only).
“Central PMS” shall mean the central system where Customer stores all its historical and future booking information, pricing, cancellation, and rate codes.
“Intellectual Property Rights” shall mean patents (including utility models), design patents, design rights (whether or not capable of registration), copyrights, copyright-related rights, moral rights, rights in databases, trademarks, trade secrets, know-how, trade names, rights under marketing law and passing off, topography rights and semiconductor chip rights, and all other intellectual property rights; in all cases whether or not registered or registerable, and applications for any of the foregoing respectively, and all rights to apply for the same, and all rights and forms of protection of a similar nature or having a similar effect to any of these anywhere in the world.
“Personal Data” shall mean any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly.
“Property” shall mean a physical hotel or lodging establishment managed, operated, owned or controlled by the Customer.
“Price Recommendations” shall mean the result of the Services.
“Services” shall mean Atomize’s software solution and related tools, as set forth in an Atomize Setup Form, which analyze and optimize the Customer’s room revenues by automatically recommending price adjustments at every given moment and every room type through machine learning algorithms.
“Total Revenue” shall mean the total room revenue of all of the Customer’s hotel rooms that are subject to the Services minus any VAT and City Taxes.
“Updates” shall mean any and all updates, flxes, patches, revisions, functional additions, modifications, enhancements, new versions and releases of the System.
3.1 The Services are supplied by Atomize’s proprietary artificial intelligence algorithms analyzing relevant data on the Customer’s Central PMS, online booking site and any applicable third-party sources.
3.2 The frequency of the delivery of the Price Recommendations is dependent on which Central PMS the Customer is
3.3 Atomize shall perform its Services to the best of its abilities and it is the intention that the Customer’s revenue shall increase by the use of the Services. It is expressly noted that Atomize does not undertake any warranty that the use of the Services will lead to any revenue increased or other anticipated positive
3.4. In case you make use of Revenue Insight, provided by OTA Insight – these are the terms that apply for that module specifically: https://www.otainsight.com/terms-and-conditions
4.1 Atomize shall deliver the Price Recommendations generated from the Services based on the Customer’s choice of delivery as set forth in Clause
4.2 With the exception where Atomize doesn’t have enough data to process from the Customer’s Central PMS, mentioned in Clause
4.3 The Customer shall assign the chosen Delivery Method in the Atomize Setup Form but may at all times change the Delivery Method by contacting Atomize support or changing its settings in its Central PMS. The Customer may also choose a combination of the Delivery Methods.
4.4 Atomize has two Delivery Methods for how the Price Recommendations shall be provided to the Customer.
4.5 The Customer is aware that depending on which Central PMS it uses Atomize might not be able to deliver overwriting of prices automatically in the Central PMS. Failure to perform overwriting in the Central PMS shall never be considered as a material breach of contract.
5.1 The Customer undertakes to use its best efforts to provide all information requested in the Atomize Setup Form and notify Atomize if any information is changed during the term of the Agreement. The Customer shall also provide any information requested by Atomize for the performance of the
5.2 The Customer shall give Atomize access to the Customer’s Central PMS and the information therein before Atomize can provide the
5.3 The Customer shall activate the Service in its Central PMS in accordance with the given information on the devices that shall be used for the use of the Services. If applicable, the Customer shall instead of activating the Service provide requested information to Atomize so that such activating of the Service can be made by Atomize.
The Customer is aware that the Services may be interrupted and delayed due to unforeseen technical issues and during Updates of the Software. Atomize shall at all time provide any information available regarding such interruption.
7.1 The fees to access and use the Atomize Services are set forth in the applicable Atomize Setup Form.
7.2 Unless otherwise stated in the applicable Atomize Setup Form, Atomize will invoice Customer: (i) Implementation Fees upon the applicable Atomize Setup Form Effective Date; (ii) the initial Annual Subscription Fee, covering the first year of the subscription, upon the applicable Atomize Setup Form Effective Date; and (iii) the Annual Subscription Fee for each subsequent year, including renewal terms, upon the Subscription Start Date (as defined in Section 12).
7.3 It is the Customer’s responsibility to ensure that Atomize at all times has correct and up to date information about the Customer’s billing information. Negligence of providing such information shall be considered a material breach of contract which gives Atomize the right to immediately terminate the Agreement in accordance with Clause 12.2. For information about the credit cards that Atomize accepts, please visit: https://stripe.com/us/payment.
7.4 If the Customer is paying by invoice, payment shall be made within 30 days from the date of the invoice. If the Customer is paying by credit card Atomize will charge the credit card within 30 days from the date of the invoice.
7.5 Payment in due time is of the utmost importance to Atomize for which reason any delayed payment shall be considered a material breach of contract which gives Atomize the right to immediately terminate the Agreement in accordance with Clause 12.2. Upon delayed payment, interest on arrears may be charged in accordance with the Swedish Interest Act (1975:635).
7.6 Payment shall be made in the Customer’s local currency unless agreed otherwise. Atomize manages the currency exchange rate risk.
7.7 The Customer shall not be entitled to a price reduction if the Services are interrupt-ed as described in Clause 6 for a shorter period of time than 24 hours. If the interruption occurs for a longer period Customer is entitled to a reduction of the fee by 3 % per day (24h) on the monthly fee. (Example; if the Atomize Services is down for five days the invoiced amount would be reduced by 15%).
8.1 Atomize shall own all intellectual property rights relating to the Services and results of the Services, including but not limited to Intellectual Property Rights. The Customer shall not acquire any Intellectual Property Rights to the Services or results of the Services by means of the Agreement. To the extent not initially owned by Atomize, the Customer hereby irrevocably assigns and transfers to Atomize any intellectual property that arises or is obtained or developed as a result of the activities performed by a Party under the
8.2 For the term of, and subject to the Customer’s proper fulfillment of the Agreement, Atomize grants to the Customer the limited rights and license to use Atomize’s intellectual property as is necessary to enable the Customer to exercise its rights and perform its obligations under the
9.1 All information which is not publicly available, whether oral or written or in a visual, electronic or tangible form, regarding or otherwise relating to a Party or to any of its business matters, which has been disclosed or may be disclosed to the other Party (the “Receiving Party”) or which the Receiving Party has or may otherwise become aware of in connection with this Agreement, shall at all times be kept strictly confidential by the Receiving Party and not be used by it for any other purpose than the performance or enforcement of this Agreement, nor be disclosed by it to any third party without the prior written consent of the other Party (such consent not to be unreasonably withheld).
9.2 Any information general information that the Algorithm is learning by analyzing relevant data of the Customer’s Central PMS shall not be considered as confidential information in accordance with section 1.
10.1 The Customer agrees that Atomize may collect and use information gathered from the Central PMS in order to perform its Services to the Customer as well as to improve the Services in general. It is the Customer’s responsibility that the information that Atomize is having access to shall not, directly or indirectly, be related to an identified or identifiable person. However, to the extent that the collected information constitutes Personal Data, Atomize shall be the controller of such Personal Data.
10.2 The Parties acknowledge that if the Customer is providing Personal Data to Atomize through its Central PMS that Atomize is processing Personal Data for the purpose set out in Section 10.1 based on Atomize’s legitimate interest to fulfill its contractual obligations towards its Customers. Any processing of Personal Data shall take place in accordance with applicable data protection laws and regulations. Atomize will not transfer Personal Data to any third party and will not retain any Personal Data when the Personal Data is no longer necessary in relation to the delivery of the relevant Price Recommendations.
10.3 In relation to processing of Personal Data for the purpose specified above, (i.e. where Atomize is the controller of the Personal Data), Customer undertakes to en-sure that all data subjects are provided with adequate information. The Customer shall indemnify Atomize for any and all damages due to non-compliance with this Section 10.
Atomize shall not be liable for any direct, special, indirect, incidental, consequential damage or loss of any kind, regardless of how it was caused and including but not limited to, loss of profit, loss of reputation or goodwill, loss of business or business opportunities, loss of revenues or anticipated savings, or loss or corruption of data or information. This limitation will apply irrespective of whether such damage or loss was foreseeable or not at the time when the Agreement was formed (even if ad-vised of the possibility of such damage or loss).This limitation of liability includes, but is not limited to, that Atomize shall not be liable for any damage caused by misleading Price Recommendations regardless of whether the Customer has manually chosen to implement the Price Recommendation or if the previously applicable prices automatically were overwritten by the Price Recommendations.
12.1 The Agreement shall commence on the Effective Date of the applicable Atomize Setup Form. Unless otherwise specified in the applicable Atomize Setup Form, the subscription term for all services ordered will commence upon the date the application is first accessed by the Customer (“Subscription Start Date”) and will continue until for the initial term set forth in the applicable Atomize Order Form. At the end of that initial term, or any subsequent term thereof pursuant to renewal under this Clause 12.1, the Agreement shall be automatically renewed upon the Subscription Start Date anniversary for successive periods of 12 months each, unless terminated by either of the Parties, by giving written notice to that effect to the other Party, no later than 90 days prior to the expiry of the relevant term.
12.2 Atomize shall at all times have the right to terminate the Agreement with immediate effect if the fee cannot be withdrawn from the Customer’s credit card or if the Customer has not otherwise complied with the payment terms in Clause 7.
12.3 Upon termination of the Agreement the Customer shall immediately inactivate the System and shall no longer have access to it and Atomize shall no longer perform analysis of the Customer’s data.
13.1 This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the substantial laws of Sweden.
13.2 Any dispute, controversy or claim arises out of, or in connection with, this Agreement, or the breach, termination or invalidity thereof, or any non-contractual obligations arising out of or in connection with this Agreement, shall be flnally settled by arbitration in accordance with the Arbitration Rules of the Arbitration
Institute of the Stockholm Chamber of Commerce. The seat of arbitration shall be Gothenburg, Sweden. The language of the arbitration shall be English.
13.3 All arbitral proceedings conducted pursuant to Clause 13.2, all information disclosed and all documents submitted or issued by or on behalf of any of the disputing Par-ties or the arbitrators in any such proceedings as well as all decisions and awards made or declared in the course of any such proceedings shall be kept strictly confidential and may not be used for any other purpose than these proceedings or the enforcement of any such decision or award nor be disclosed to any third party with-out the prior written consent of the Party to which the information relates or, as regards to a decision or award, the prior written consent of all the other disputing Par-ties.
13.4 Notwithstanding the above, Atomize may at its sole discretion submit claims for overdue payments to the Enforcement Authority (Sw. kronofogden) or the Gothenburg District Court or any other applicable authority or court as flrst instance.
15.1 Changes and additions. Atomize may modify this Agreement from time to time. If any material changes are made to it, Atomize will provide the Customer with notice through our Services, or by other means, to provide the Customer the opportunity to review the changes before they become effective. If Customer continue to use the Services after Atomize has publish or send a notice about the changes to these General Terms means that the Customer are consenting to the updated terms.
15.2 Severance. If any provision of this Agreement is held to be invalid or unenforceable by any competent court, authority or arbitral tribunal, the remainder of that provision and all other provisions will remain valid and enforceable to the fullest extent permit-ted by applicable law, and the Parties shall negotiate any necessary changes to this Agreement to maintain the spirit of this Agreement and the framework, structure and operation of the transactions contemplated by this Agreement.
15.3 Subcontractor. Atomize shall have the right to engage a subcontractor to fulfill its obligations under the Agreement. If Atomize engages a subcontractor, Atomize shall be liable for such subcontractor’s performance as for its own obligations.
15.4 Entire Agreement. The Agreement constitutes the entire agreement between the Parties on all issues to which the Agreement relates. The content of the Agreement supersedes all previous written or oral agreements, commitments and undertakings.
15.5 Force Majeure. If and to the extent that either Party’s performance of its obligations under this Agreement is impeded or made unreasonably onerous by circumstances beyond its reasonable control, including, but not limited to, general labour disputes, war, flre, lightning, flood, acts of terrorism, amendments to regulations issued by governmental authorities, intervention by governmental authorities such Party shall be released from liability in damages for delay in performing or failure to perform such obligations. The Party wishing to claim relief by reason of any circumstance as referred to in this Clause shall without undue delay notify the other Party in writing. If performance is prevented for more than 3 months as a result of any of the circumstances as referred to in this Clause, the Party not affected by force majeure shall be entitled to immediately terminate the obligations.