Terms and Conditions Affiliation

Access to Day-Use Rooms and Services. Participating Hotel hereby grants DayBreakHotels S.r.l. and its Affiliates (collectively, “DBH”) the right to make Day-Use Rooms and other Hotel Services available on DBH Site for booking by DBH Customers upon the terms and subject to the conditions set forth herein. It is understood and agreed by the Parties that nothing in this Agreement constitutes a sale or rental of Day-Use Rooms or other Hotel Services from Participating Hotel to DBH and that DBH bears no risk of loss with respect to any Day-Use Rooms or other Hotel Services made available hereunder.
Non-Compliance. Participating Hotel acknowledges and agrees (a) that the benefits contained in this Agreement are in exchange for, and contingent upon, Participating Hotel’s compliance with its obligations under this Agreement, (b) that DBH may withhold all or a portion of such benefits upon notice to Participating Hotel in the event of any such non-compliance, and (c) that DBH shall have no obligation to display any Participating Hotel that is not in compliance with the terms and conditions hereof on any DBH Site.
Prices. Annex 1 form corresponding to this Participation Agreement (the “Price List”) contains the terms and conditions at which the Participating Hotel makes available Day-Use Rooms and other Hotel Services to DBH Customers.
Availability of Rooms/Pictures. Participating Hotel agrees to make available, for the term of this Agreement, Day-Use Rooms, to be offered in free-sale to DBH Customers. Participating Hotel will have full power in deciding how many rooms it wishes to make available to DBH customers on a daily or weekly basis by updating room availability on the extranet. Once made available, the Day-Use Rooms and other Hotel Services will be considered available until the Participating Hotels informs DBH (in writing) otherwise or until the Participating Hotel amends such availability directly from its dedicated extranet. Even in such case, however, the communication from the Participating Hotel will not influence any reservations made by DBH Customers before the date of such communication. The Participating Hotel commits to make available to DBH (by email at [email protected] or through WeTransfer or similar service) at least 10 pictures of the Participating Hotel to be used by DBH to promote the Participating Hotel on DBH Site.
Commission and Payments. Participating Hotel agrees to pay to DBH, for any sale of Day-Use Rooms or other Hotel Services made by the Participating Hotel to DBH Customers, as a consequence of reservations made by such customers on the DBH Site, a commission (the “Commission”) of the overall amount, including VAT (if applicable), of the reservations of Day-Use Rooms and/or other Hotel Services made by such DBH Customers. DBH agrees to make available on the extranet of DBH Site dedicated to the Participating Hotel the information concerning the Commissions due to DBH and the corresponding reservations (jointly, the “Information on Commissions”) within the 4th day of each month following the one to which the reservations refer (such information will already reflect any no-shows that the Participating Hotel will have already indicated in the extranet). The Participating Hotel will be able to provide any comments on the Information on Commission to DBH by the 10th day of the same month and DBH will reply (if needed) by the 13th day of such month. DBH will then issue its invoice to the Participating Hotel on the 15th day of the same month and the Participating Hotel agrees to pay such invoice, by bank wire transfer, no later than fourteen days after it receives it.
Reservations of Day-Use Rooms. The Participating Hotel agrees that reservations of Day-Use Rooms made by DBH Customers will not be guaranteed by credit card, unless stated otherwise in the corresponding Annex 1 document. However, DBH commits (1) to clearly indicate, during the reservation process, the terms of the applicable cancellation policy (2) to accept reservations of Day-Use Rooms only from DBH Customers which have provided a verified e-mail address. With reference to the reservation of Day-Use Rooms, the parties agree that (1) DBH Customers may freely cancel any reservations within midnight of the day preceding the day in which the reservation may be enjoyed (this applies to reservations made before the date in which they may be enjoyed) and (2) DBH Customers may freely cancel any reservations within 1 PM of the day in which the reservation may be enjoyed (this applies to reservations made on the same day in which they may be enjoyed), and (3) DBH Clients will be allowed to make reservations of Day-Use Rooms for the same day only by 4PM of such day.
Reservations of other Hotel Services. In connection with the reservations of Hotel Services for which the Participating Hotel has required credit card guarantee, DBH agrees to make available to the Participating Hotel (on the webpage of its dedicated extranet, which will be protected with SSL encryption in line with market standards) the relating credit card information (i.e.; holder, type, number and expiration date). The Participating Hotel commits to use such information to implement the reservation and cancellation policy applicable to the corresponding Hotel Service. To that effect, with reference to each of the Hotel Services offered, the Participating Hotel commits to indicate in Annex 1 of this Agreement whether it requires credit card guarantee and which is the cancellation policy applicable to each of the offered Hotel Services.
Equal Treatment. The Participating Hotel commits not to apply to DBH Customers, in connection with the reservations made by them, any terms and conditions, policies or other terms less favorable than those applied to clients that make reservations through any DayBreakHotels’s competitor. Therefore, the Participating Hotel is free to work with any other day use online travel agency and will not be working exclusively with DayBreakHotels.
Cancellations and promotions. Customers can cancel reservations free of charge up until midnight on the day prior to the day the booking refers to or up to two hours before check-in if the booking was made on the same day as the stay. In the case of promotional initiatives or special discounts offered by DBH to commercial partners (for example Mastercard, Trenitalia, Alitalia, UBER) aimed at increasing the number of bookings from new and high value customers, the discount or promotion (between 5% and 15% maximum) will be shared by the parties and the Commission will be calculated on the discounted price.

PART 2: LEGAL TERMS & CONDITIONS
Definitions. Capitalised terms used but not otherwise defined herein shall have the following meanings:
“Affiliate” means a person or entity, directly or indirectly, controlled by, controlling, or under common control or participated or connected (even through partnership or commercial agreements) with another person or entity.
“Agreement” means this Participation Agreement, together with any schedules, annexes and or exhibits hereto.
“Booking Data” means the personally identifiable information (that is, information that can be linked to a specific customer, such as name, address, phone number, email address or billing information) of any customer booking a Day-Use Room or other Hotel Services at Participating Hotel under this Agreement (including, without limitation, such customer’s itineraries, travel destinations and travel contacts).
“Day-Use Room” means hotel room accommodation which may be enjoyed during the time slot(s) set by the Participating Hotel.
“DBH Competitor” means any company already offering or wishing to offer to customers the possibility to book Day-Use Rooms or other Hotel Services offered by the Participating Hotel.
“DBH Customer” means a user of a DBH Site.
“DBH Site” means, collectively, DBH’s web site (currently located at www.daybreakhotels.com) and the web sites or other distribution channels, present or future, of DBH, its Affiliates and/or other distribution partners through which DBH or its Affiliates and/or its other distribution partners now market or may market Day-Use Rooms and other Hotel Services during the Term.
“Effective Date” means the date set forth below DBH’s signature on the first page of this Agreement.
“Hotel Services” means any hotel services, including, without limitation, SPA services, meeting room and other business services, and restaurant services.
“Participating Hotel” means the hotel property listed on the first page of this Agreement or, in case of multiple properties, on Annex 2 of this Agreement.
“Party” means, as appropriate, DBH or Participating Hotel; collectively the “Parties”.
“Rate” means the rate applicable for a particular class of Day-Use Rooms or other Hotel Services, and the rules, terms and conditions of relating thereto, including, without limitation, cancellation, advance purchase, no-show and loyalty program participation policies.
“Taxes” means VAT as well as other applicable taxes, governmental fees or charges.
Term / Termination. The initial term of this Agreement shall commence as of the Effective Date and shall continue for guest bookings through 31 December of the following calendar year unless earlier terminated in accordance herewith (the “Initial Term”). The partner hotel is able to terminate the Agreement at any time they wish so long as a written notice is given thirty (30) days before the date of which the hotel wants to be removed from DBH platform. After the Initial Term, this Agreement shall automatically renew for successive one (1) year periods unless and until either Participating Hotel or DBH notifies the other in writing of its desire not to renew no fewer than thirty (30) days prior to the end of the Initial Term or the then-current renewal term. The Initial Term and any such renewal terms shall be referred to herein as the “Term”. Either Party may terminate this Agreement in the event of a material breach of this Agreement by the other Party if such breach is not cured within thirty (30) days from the defaulting Party’s receipt of written notice of such breach, describing such breach in reasonable detail. The obligations of the Parties under this Agreement that by their nature would continue beyond termination or expiration of this Agreement, including without limitation all liabilities and obligations that have accrued prior to such termination or expiration, shall survive, and each Party shall also retain any and all rights that it may have under applicable law.
Limited License. Subject to the terms and conditions of this Agreement, Participating Hotel hereby grants to DBH a non-exclusive, royalty free, right and license during the Term to use, reproduce, distribute and display in any format on the DBH Site and in related promotional materials (a) Participating Hotel’s trademarks, trade names, service marks and logos (“Licensed Marks”) and (b) pictures, photographs and descriptions (or any portion thereof) of Participating Hotel (“Licensed Content”), in each case that have been provided to or made available to DBH by or on behalf of Participating Hotel. DBH agrees not to use the Licensed Marks or Licensed Content in any manner that is disparaging or that otherwise could reasonably be expected to have a material adverse impact on the goodwill associated with the Licensed Marks, diminish their value, or the corporate image, business or reputation of Participating Hotel. This includes DBH commitment not to use Licensed Marks in brand-bidding campaigns.
Confidential Information. A Party’s “Confidential Information” means any and all information and material disclosed by the disclosing Party to the receiving Party (whether in writing, verbally, electronically or in any other form) that is marked or identified as (or provided under circumstances reasonably indicating that it is) confidential or proprietary. Each Party shall hold the other Party’s Confidential Information in strictest confidence and shall not disclose such Confidential Information to third parties nor use the other Party’s Confidential Information for any purpose, other than as required to perform under this Agreement, without the prior written consent of the other Party. Such restrictions shall not apply to otherwise Confidential Information (i) that is already known by the receiving Party, (ii) that becomes, through no act or fault of the receiving Party, publicly known, (iii) that is received by receiving Party from a third party without a restriction on disclosure or use, or (iv) that is independently developed by the receiving Party without reference to Confidential Information.
Customer Data. Each Party agrees that it shall own the Booking Data furnished directly to such Party by any customer either during the booking process on a DBH Site or during an actual stay at Participating Hotel, as applicable solely for the purpose of facilitating the applicable booking. Booking Data may be transmitted from one Party to another; PROVIDED THAT (a) each Party complies with applicable laws, rules and regulations and applicable privacy policies; and (b) any disclosures to third parties are made solely to facilitate the applicable booking and under confidentiality obligations no less protective than those found herein.
Representations and Warranties. Each Party represents and warrants that it has the corporate or other legal right, power and authority to enter into this Agreement and to perform all of the obligations to be performed by it hereunder, and that this Agreement constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms. Participating Hotel represents and warrants that (a) it shall fully comply with all applicable national and local laws, rules, legislation and trade regulations relating to the nature and booking of the Day-Use Rooms and other Hotel Services including without limitation, and any all applicable consumer legislation; fire, health and safety legislation and conduct codes and (b) it has and shall maintain liability insurance coverage from a reputable insurance carrier with a minimum coverage consistent with industry standards for similarly situated properties.
Exclusion of Warranties / Limitation of Liability and Damages. Except as specifically provided herein, neither Party makes, and each Party expressly disclaims, any representations or warranties in connection with this Agreement, whether express, implied, statutory or otherwise, including, without limitation, warranties of satisfactory quality, merchantability, fitness for a particular purpose, title, uninterrupted service, any warranties arising out of a course of performance, dealing or trade usage. Except for the indemnification obligations established below, or as otherwise set out in this clause, neither Party shall be liable for any consequential, incidental, indirect, special, exemplary or punitive damages incurred by the other party, such as, but not limited to, loss of revenue or anticipated profits or lost business. For the avoidance of doubt, nothing in this agreement shall act to limit either party’s liability in respect of death or personal injury caused by negligence.
Indemnification. Each Party (the “Indemnifying Party”) shall indemnify, defend and forever hold the other Party (including such Party’s Affiliates, and all of their respective present and former officers, members, shareholders, directors, employees, representatives and agents, and their successors, heirs and assigns) (each, an “Indemnified Party”), harmless from and against any and all losses, liabilities, costs, damages and expenses (including, without limitation, fines, forfeitures, attorneys’ fees, disbursements and administrative or court costs) (collectively, “Losses”) arising directly or indirectly out of, or relating to, claims of third parties regarding (a) in the case of Participating Hotel, (i) the failure to honor a valid reservation made pursuant hereto, (ii) a Day-Use Room or Hotel Service provided by Participating Hotel, (iii) the use or display of any confidential information or any other data, including data provided by Participating Hotel, or (iv) violation or alleged violation of the intellectual property rights of others in the Licensed Marks and/or Licensed Content, or (b) in the case of DBH, gross negligence or willful misconduct in the provision of hotel booking services hereunder. An Indemnified Party shall notify the Indemnifying Party in writing of the nature of the claim as soon as practicable after the Indemnified Party receives notice thereof; provided, however, that the failure to give prompt notice shall not relieve the Indemnifying Party of its obligations except to the extent that the Indemnifying Party does not receive actual notice and is damaged as a result. The Indemnified Party shall have the right at its own expense to employ separate counsel and to participate in (but not control) any such action. No Indemnified Party shall be liable for any settlement of an action effected without its written consent (which consent shall not be unreasonably withheld) unless such settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Party a release from all liability with respect to the claim.
Taxes. Participating Hotel agrees to indicate to DBH and include in the prices applied to DBH Customers all Taxes imposed on the rooms and services booked hereunder.
Force Majeure. Neither Party shall be deemed in default or otherwise liable hereunder due to its inability to perform its obligations by reason of any fire, earthquake, flood, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, act of God, terrorist act, or any municipal, county, state or national ordinance or law, or any executive, administrative or judicial order (which order is not the result of any act or omission which would constitute a default hereunder), or any failure or delay of any transportation, power, or communications system or any other similar cause beyond such Party’s control.
Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and interpreted in accordance with the laws of Italy, without reference to conflict of laws principles. Each Party hereby agrees that any legal action, suit or proceeding arising out of or relating to this Agreement shall be instituted in a court located in Rome, Italy, and each Party irrevocably submits to the exclusive jurisdiction of any such court in any such action, suit or proceeding and hereby agrees not to assert, by way of motion, as a defense or otherwise, in any such action, suit or proceeding, any claim that (i) he, she or it is not subject personally to the jurisdiction of such court, (ii) the venue is improper, or (iii) this Agreement or the subject matter hereof may not be enforced in or by such court.
Notices. Notices hereunder shall be given in writing by personal delivery, certified or registered or overnight or other courier or delivery service, addressed, in the case of Participating Hotel, to its address indicated on the first page of this Agreement and, in the case of DBH to Via Bargoni 8, 00153, Italy, Rome Attn: Legal Department. All such notices shall be deemed to have been given and received (a) upon receipt if personally delivered or sent by certified or registered mail and (b) when delivery is confirmed if sent by overnight or other courier or delivery service.
Amendment; Waiver. Any amendment to this Agreement must be in writing and signed by Participating Hotel and DBH. Notwithstanding the foregoing, DBH may update the terms and conditions of this Agreement with thirty (30) days’ advance written notice to Participating Hotel. If Participating Hotel does not notify DBH before the expiration of such thirty (30) day period that it chooses not to accept such updated terms and conditions, Participating Hotel shall be deemed to have accepted the same. In the event that Participating Hotel chooses not to accept such updated terms and conditions, DBH shall have the option to terminate this Agreement. No term or condition of this Agreement shall be deemed waived, and no breach shall be deemed excused, unless such waiver or excuse is in writing and is executed by the Party against whom such waiver or excuse is claimed. The Parties hereby agree that DBH will be allowed to transfer this Agreement to any of its Affiliates.
Miscellaneous. This Agreement contains the entire agreement and understanding between the Parties with regard to the subject matter hereof, and supersedes all prior and contemporaneous oral or written agreements and representations. Neither this Agreement nor the cooperation of the Parties contemplated hereunder shall be deemed or construed to create any partnership or joint venture between the Parties. A person who is not a party to this Agreement shall have no rights to enforce any of its terms. In the event that any provision of this Agreement is determined to be invalid, unenforceable or otherwise illegal under applicable law, such provision shall be deemed restated to reflect as nearly as possible the original intentions of the Parties and shall not, in any event, affect any other provision hereof. Section headings and brief summaries are for convenience only and shall not be considered in construing this Agreement. This Agreement has been fully reviewed and negotiated by the Parties with the opportunity to be assisted by counsel. Accordingly, in interpreting this Agreement, no weight shall be placed upon which Party (or its counsel) drafted the provision or language being interpreted. This Agreement may be executed in one or more counterparts, each of which (including fax copies) shall constitute an original and all of which taken together shall constitute one and the same Agreement. Each amendment written in the signed contract and not present in this page is valid and in force to amend general conditions.