1. Definitions
1.1. "Company": Globistack Limited, established in 1 Coliemore Road, Dalkey, Dublin, Ireland with company number 702580.
1.2. "Customer": the party which has entered into an agreement with Book365.
1.3. "Parties": Company and Customer together.
1.4. "Party": Company or Customer individually.
1.5. "Agreement": legally binding arrangement between Parties upon acceptance of offer or quotation by Customer.
1.6. “Software”: refers to the web applications, mobile applications, desktop applications, in their entirety, their modules, or parts thereof, and associated manuals, brochures, videos, images, and other materials.
2. Applicability
2.1. These terms and conditions (the "Terms and Conditions" or "Terms & Conditions") will apply to all quotations, offers, activities, orders, agreements and deliveries of services or products by or on behalf of the Company.
2.2. Parties can only deviate from these conditions if they have explicitly agreed upon in writing.
2.3. The parties expressly exclude the applicability of supplementary and/or deviating terms and conditions of the Customer or of third parties.
3. Offers and quotations
3.1. Offers and quotations from the Company are without engagement, unless expressly stated otherwise.
3.2. An offer or quotation is valid for a maximum period of 1 month from its date unless another acceptance period is stated in the offer or quotation.
3.3. If the Customer does not accept an offer or quotation within the applicable time frame, the offer or quotation will lapse.
3.4. Offers and quotations do not apply to repeated orders unless the parties have agreed upon this explicitly and in writing.
4. Fees
4.1. The fees charged by the Company are specified in the Agreement. Services or Software licenses that are not explicitly included, will be the subject of a new offer or quotation from the Company.
4.2 Performance is periodically invoiced in advance, based on the milestones described in the offer or quotation, and for recurring services in accordance with the invoicing schedule stated in the offer or quotation. Upon obtaining each milestone, the Company will invoice the Customer for the next milestone. Additional billable services will be invoiced monthly as a default (unless otherwise communicated by the Company).
4.3. The invoices of the Company (the "Invoice(s)") will be paid by the Customer within twenty (20) calendar days of receipt.
4.4. In the event of late payment of an Invoice, the Company is entitled to suspend its services and the rights of the Customer (including the licenses) until payment has been received, without the Company being held responsible for any negative impact on agreed project planning. The Company reserves the right to start another Milestone only when the payment of the previous Milestone has been paid.
4.5. In the event of late payment by the Customer, the Company will automatically be entitled to charge a default interest of 1.5% per month, calculated per day from the due date of the Invoice until the moment of receipt of full payment of the Invoice, without prejudice to any other rights and remedies available to the Company. The Customer will also be legally obliged to pay a flat-rate compensation of 10% of the total of the Invoice with a minimum of 250 euros for the recovery costs of the Company, without prejudice to the Company’ s right to claim additional compensation, if the Company can prove that its damage exceeds the aforementioned amounts.
4.6. If the Customer disputes a (part of a) Invoice from the Company, the Customer will notify the Company in writing within 8 days of receipt of the Invoice with detailed and substantiated notification of the grounds for the dispute, failing which the Invoice will be considered accepted. The undisputed part will be paid in accordance with these Terms and Conditions.
5. Acceptance
5.1. Upon acceptance of a quotation or offer by the Customer within its validity, it becomes a binding agreement between Parties.
5.2. Verbal acceptance of the Customer only commits the Company after the Customer has confirmed this in writing (or electronically).
6. Execution
6.1. The Company undertakes to perform the services with the necessary dedication, seriousness, and competence and in accordance with the applicable regulations, as can reasonably be expected from an experienced specialist. The Company will devote the necessary time and skills to the performance of the services.
6.2. The Parties themselves are responsible for compliance with all legal provisions that apply to them. This obligation includes compliance with the legal provisions on taxes, VAT and the relevant social status and registration in the business register.
6.3. The Company will do its best to perform the services within the time limit set in the Agreement. Any schedule is only indicative and non-binding. An extension of a predetermined delivery period cannot entitle the Customer to a cancellation of the Agreement or compensation.
7. Term and Duration
7.1. Unless otherwise agreed, the term of a an greement is one (1) year and shall automatically renew with the same term unless terminated.
7.2. Termination can be done giving 90 days advance notice.
7.3. The Parties cannot terminate the Agreement early without reason.
7.4. If the Customer terminates the Agreement in whole or in part, the fees stated in the Agreement will remain due in their entirety to the Company and become payable upon termination.
7.5. The agreement may be terminated early by one of the Parties with immediate effect, without notice or termination fee, but subject to written notification, without prejudice to the right to compensation of the Party that terminates, in the event of:
(a) deception or willful error on the part of the other Party;
(b) a violation of Article 9 (Non-recruitment) or Article 10 (Confidentiality) by the other Party, or an infringement of intellectual property rights by the other Party;
(c) in the event of (application for) bankruptcy, manifest incapacity, or suspension of payment on the part of the other Party; Or
(d) any other contractual default under the other Party not remedial within thirty (30) days of receipt of notice of default by the terminating Party; the defaulting Party will confirm within five (5) working days that it has received the notice of default and, if agreed to the alleged default, confirm a plan of action.
8. Intellectual Property Rights
8.1 For the purposes of these Terms and Conditions, "Intellectual Property Rights" means: all intellectual property rights, including copyrights, patent rights, design rights, trademark rights, sui generis rights (including in software), database rights and all other possible intellectual property rights to works, documents, images, performances, creations, computer programs, databases, studies, research, methods, performances or inventions and the like, including all related and related rights and all other forms of similar protection, anywhere in the world, linked to the products, services and projects delivered by the Company, whether or not registered and the right to apply for protection for the foregoing and to enforce such protection.
8.2. Between the Parties, each Party remains the owner of all Intellectual Property Rights in any products, services and other materials that it supplies in the context of the Agreement.
8.3. The Customer may not (i) decompile, disassemble, decrypt, or attempt to discover the Source Code of Software, except if, and only to the extent that applicable law prohibits such restriction; (ii) modify, merge with other programs or products, translate or modify in any other way, or use as a basis for (developing) other products; (iii) rent, lease, license, lend or otherwise commercialize, transfer or make available (except expressly permitted in the Agreement), use as part of a facility management, timeshare or service agency arrangement, and in general, use the Company services and products in any way other than expressly permitted in the Agreement. Any modification, modification, improvement or derivative of the Company services and products, or by the Customer, or a third party acting on their behalf notwithstanding the prohibition to do so contained in the Agreement, will automatically and without the Company being liable for any compensation for this, be the exclusive property of the Company, including all intellectual and industrial rights in such changes, adjustments, improvements and derivatives. The Customer will take the necessary actions at its own expense (and undertakes that any third party will take the necessary actions) to facilitate such transfer of rights without delay.
8.4 Notwithstanding any other provision in an Agreement, the Company is permitted to further develop and commercialize the Software, services and products developed by the Company in the context of the Agreement or any other agreement and the Company Intellectual Property Rights freely and unlimitedly, to further develop and commercialize or otherwise make available (itself or in cooperation with or through third parties), both during the duration of the Agreement and after. However, such use should not result in the Company no longer being able to perform the services as agreed in the Agreement, or that the Customer will no longer be able to perform the use of the Software permitted in accordance with these Terms and Conditions and the Agreement.
8.5 Any use by the Customer, directly or indirectly, of the Company Services and Software and Intellectual Property Rights, in a form other than in accordance with these Terms and Conditions, requires the prior written consent of the Company, in a separate agreement between the Parties in which any right of use and the related modalities, including the fee owed by the Customer, are laid down. However, the Company has no obligation to grant such a right of use.
8.6 The Customer gives permission to use its company name, brand names and the project to promote the services of the Company via the Internet, brochures, and other media. The Customer consents to the mention of the Company, the brand names of the Company, in the footer of the website. The Customer will not delete this entry.
9. Non-recruitment
9.1. The Customer undertakes not to approach employees, employees, representatives, or subcontractors of the Company, directly or indirectly, in any form, directly or indirectly during the duration of the cooperation and for a period of twelve (12) months after its termination, for the purpose of their recruitment, employment, or cooperation in any form.
9.2. In the event of violation of this non-recruitment clause, the Customer will be obliged to pay a flat-rate compensation equal to the total sum invoiced by the Company to the Customer for the twelve (12) months prior to the acquisition, without prejudice to the Company's right to claim the damage actually suffered in the event of a greater damage.
10. Confidentiality
10.1. The Parties undertake, during the duration of the Agreement and for a period of five (5) years from its termination, to refrain from, both on their own account and together with, on behalf of or on behalf of any third party, in any capacity, the distribution in any way, or the use for any purpose other than the execution of the Agreement, of any confidential information from or concerning the other Party and/or its activities (including the intellectual property of the other Party), including the provisions of the Agreement, subject to (i) the prior written agreement by the other Party, (ii) in the event of a legal or regulatory obligation (provided that the other Party is immediately informed in writing of such obligation (to the extent permitted by law)) , and (iii) to the extent necessary for the execution of the Agreement (including for exercising and enforcing the rights of a Party).
10.2. Parties shall keep the confidential information of the other Party secret and take reasonable measures to prevent unauthorized access to, and not permitted use of, the confidential information.
11. Warranty
EXCEPT AS OTHERWISE SET FORTH IN A BINDING WRITTEN AGREEMENT BETWEEN THE COMPANY AND CUSTOMER, THE SOFTWARE, PRODUCTS AND SERVICES ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
12. Liability and indemnification
12.1. The Company is liable for non-compliance with its obligations under the Agreement, to the extent that such shortcoming is attributable to the Company, and for the damage that would result from this for the Customer.
12.2. The Customer may hold the Company liable for all attributable errors and omissions in the performance of the tasks under the Agreement, subject to these Terms and Conditions.
12.3. After the expiry of the Warranty Period, the Company has no further obligation to provide technical support.
12.4. The Company may, to the extent permitted under applicable law, under no circumstances, except for any express provision to the contrary in the Agreement, be held liable for indirect or incidental damage, economic damage or consequential damage, for loss of income or lost profits, reputational damage, loss of Customers, contracts and goodwill, missed opportunity, the cost of purchasing alternative products or services, claims of third parties , or any loss of or damage to data resulting from the Agreement and in particular (not exhaustive) from the use of the software, services or products provided by the Company.
12.5. The total liability of the Company in the context of an Agreement, regardless of the grounds for liability and to the extent permitted under applicable law, will be limited to compensation for only the damage that have been demonstrably incurred, with the maximum amount being the fees (excl. VAT) paid by the Customer for the software that has the damage caused. The total, in case of recurring fees, shall not exceed the sum of fees over a maximum period of 3 months. Any fees due to the Company where the payment period has expired shall be excluded from the Company’ s liability.
12.6. Notwithstanding any conflicting provision in these Terms and Conditions, the Company will indemnify the Customer against any claim by a third party against the Customer, to the extent based on an infringement by the the Company products developed in the context of an Agreement on the intellectual property rights of that third party, provided
(i) that the Customer immediately informs the Company in writing as soon as it receives knowledge of such claim;
(ii) the Company is given full control and decision-making power over the conduct of the defense and any negotiations and amicable settlement.;
(iii) the Customer provides the Company, at the Company’ s request and expense, with reasonable assistance in the context of the defense of the Company; and
(iv) the Customer makes no negative statements regarding the Company nor acknowledges the alleged breach under the Company.
If these conditions are met, the Company will compensate the Customer for damage suffered by the latter as a result of such claim and reasonable costs incurred, as determined by a competent court of last instance or as agreed by the Company in a settlement agreement with the third party concerned, provided that such settlement agreement exempts the Customer from any (financial) liability in this regard.
12.7. The aforementioned indemnification obligation does not apply if the claim of the third party arises from
(i) unauthorized or incorrect use of the products concerned by or on behalf of the Customer;
(ii) materials made available to the Company by the Customer or third party for use, processing, processing or incorporation;
(iii) modifications to the products concerned, not made by the Company;
(iv) failure on the part of the Customer to use the most recent version of the product concerned made available by the Company, or failure to install or integrate any corrections made available by the Company, if the Company indicated that such corrections were necessary to prevent/remediate any (possible) infringement of the rights of third parties; or
(v) use of the products concerned in combination with other products, software or hardware not developed by the Company, if the infringement had not occurred without this combination.
12.8. In the event of an (alleged or possible) infringement by the Company products of the intellectual property rights of third parties, the Company is entitled, at its own expense and at the Company's option:
(i) to obtain a right of use on behalf of the Customer from the third party, for the continued use of the product concerned by the Customer; or
(ii) modify the (alleged) infringing part of the product in question, or replace it with other products with equivalent functionality, so that the product no longer infringes the intellectual property rights of third parties.
12.9. If (i) and (ii) are not reasonably possible, the Company has the right to terminate the rights of use in the product concerned with immediate effect and the Customer will terminate the rights of use in such products within a reasonable period of time at the Company’ s first request.
12.10. This article constitutes the exclusive remedy of the Customer, and the sole liability of the Company, with regard to an infringement of the intellectual property rights of a third party as described above.
13. General
13.1. An Agreement cannot be transferred in whole or in part without the prior written consent of both Parties. Any waiver of any right from an Agreement can only be done in writing. The Company may subcontract its activities in the context of an Agreement, albeit that the Company remains responsible to the Customer with regard to such subcontracted activities.
13.2. An Agreement constitutes the entire agreement between the Parties with regard to the subject matter of that Agreement, and supersedes any prior written or oral agreement, offer, exchange of letters or proposal with regard to its subject matter. The Company will not be bound by any different or additional conditions as included in a purchase order or any other Customer document, even if the Company does not expressly reject these Terms and Conditions on a case- by-case basis. An Agreement can only be modified or supplemented by an addendum or a new quotation signed by both Parties.
13.3. The possible nullity, invalidity and/or unenforceable of one of the provisions of the Agreement in no way compromises the other provisions of the Agreement. In such a case, the Parties undertake to negotiate in good faith in order to replace the provision in question with a valid and enforceable provision that is closest to the intentions of the Parties.
13.4. The Customer waives the right to suspend the fulfillment of any obligation arising from this agreement.
13.5. English is the original. Any translations are made available for convenience only.
14. Notifications
14.1. Unless otherwise expressly provided in an Agreement, no notice or notice of default from one Party to another shall have any validity under that Agreement unless made in writing by or on behalf of the Party concerned.
14.2. Any such notice and notice of default to be given by one Party to the other Party will be given by letter (delivered in person or by courier or registered with receipt) with copy by electronic mail or if by electronic mail, confirmed by letter as described above.
14.3. Provided that the relevant communication is not returned as unavailable, the notification will be deemed to have been given 14 working days after the day on which the letter was posted or earlier if the other Party confirms receipt of such notification earlier (albeit excluding automatically generated acknowledgement of receipt).
14.4. For the purposes of this article, the address of each Party will be the address stated at the beginning of the Agreement. Each Party may change its notification address and contact person by means of a notification in accordance with this clause.
15. Applicable law
The law of Ireland applies to these Terms and Conditions and all Agreement unless agreed differently.