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 here in is the company which has ordered Services (as defined below) from Atomize. 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. These General Terms constitute an integral part of the agreement between Atomize and the Customer (the “Agreement”). The Agreement consists of (i) Atomize’s Setup Form, which refers to these General Terms and in which the Customer’s specifies its order by providing the requested information (the “Atomize Set Up”), and (ii) these General Terms.
1.3 In case of contradiction between any terms of Atomize Setup Form and these General Terms, the Atomize Setup Form shall prevail.
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 Atomize. Any general terms introduced or referred to by the Customer shall only apply if approved by Atomize in writing.
In this Agreement:
“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 (Sw. närstående rättigheter), 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 register able, 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.
“Price Recommendations” shall mean the result of the Services.
“Services” shall mean Atomize’s service 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, fixes, 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 and online booking site.
3.2 The frequency of the delivery of the Price Recommendations is dependent on which Central PMS the Customer is using.
3.3 Atomize shall perform its Services to the best of its abilities and it is the intention that the Costumer’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 result.
4. Delivery of Price Recommendations
4.1 Atomize shall deliver the Price Recommendations generated from the Services based on the Customer’s choice of delivery method as set forth in Clause
4.2. The Customer shall assign the chosen delivery method in the Setup Form but may at all time change the Delivery Method by contacting Atomize support or changing its settings in its Central PMS. The Customer may also choose a combination between the Delivery Method.
4.2 Atomize has two Delivery Methods for how the Price Recommendations shall be provided to the Customer:
- Recommendations. The customer receives solely price recommendations and Customer is there after free to decide whether to implement the Price Recommendation.
- Overwriting of prices in the Central PMS. The Customer’s prices in its Central PMS will automatically be overwritten by Atomize’s Price Recommendations which means that if the Customer has chosen this method it has given its prior acceptance to the Price Recommendations.
4.3 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. The Customers Obligations
5.1 The Customer undertakes to use its best efforts to provide all information requested in the 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 Service.
5.2 The Customer shall give Atomize access to the Customer’s Central PMS and the information therein before Atomize can provide the Services.
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.
6. Limitation of the Services
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 fee for Atomize Services is a predetermined share of the Customer’s Total revenue each calendar month the Customer is using the Services. Atomize is entitled to change the predetermined fee by giving a written notice not less than 10 Business days before the new fee shall apply.
7.2 On the first Business day of each month Atomize will determine the Customer’s Total revenue during the previous month by analyzing the information available in the Central PMS. If the Customer has not used the Services during the entire previous month the Total revenue will only be determined based on the period the Customer had access to the Services.
7.3 The fee shall automatically be withdrawn from the Customer’s credit card when the Total revenue is determined. The Customer is solely responsible to ensure that the fee can be withdrawn from the credit card on the day the Total revenue is determined.
7.4 It is the Customer’s responsible to ensure that Atomize at all time has correct and up to date information about the Customer’s credit card. The Customer shall at the latest provide the credit card information to Atomize 30 days after entering into this Agreement. 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.
7.5 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 price reduction if the Services are interrupted as described in Clause 0for a shorter period of time than 24 hours. If the interruption occurs for a longer period Customer is entitledto a reduction of the fee by 2 %.
8. Intellectual Property Rights
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 Agreement.
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 Agreement.
9.1 All information which is not publically available, whether oral or written or in 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 CentralPMS shall not be considered as confidential information in accordance with section 9.1.
10. Collection of Information
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 relations to processing of Personal Data for the purpose specified above, (i.e. where Atomize is the controller of the Personal Data), Customer undertakes to ensure 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.
11. Limitation of Liability
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 advised 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. Termination of the Agreement
12.1 The Agreement shall commence on the date when it has been duly executed by both Parties and shall remain in full force and effect foran indefinite term until terminated by either of the Parties.
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 in accordance with Section 7.
12.3 Upon termination of the Agreement the Customer shall immediately inactivate the System and shall no longer have access to it andAtomize shall no longer perform analysis of the Customer’s data.
13. Applicable Law and Disputes
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 finally 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 13.1, all information disclosed and all documents submitted or issued by or on behalf of any of the disputing Parties 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 without 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 Parties.
13.4 Not withstanding 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 first instance.
14. Customer Data and Data Protection
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 Service safter Atomize has publish or send a notice about the changes to these General terms and conditions 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 permitted 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, fire, 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.