STRATEGIC PARTNERSHIP AGREEMENT
Partner shall offer the Cancellation Option for purchase on the
Partner Site so that Customers shall be able to purchase the
Cancellation Option for the Cancellation Option Fee when booking
their Reservation.. Partner will collect the Cancellation Option Fee
from the Customers when booking the Reservation via the
Partner’s processing system or gateway service. Partner shall
market and promote Cancelation Option throughout the Term.
Partner understands that the Cancellation Option is not insurance
of any kind and shall not market or present the Cancellation
Option as insurance. Roomer shall provide Partner with
promotional material and terms of the Cancellation Option for
presentation and Partner shall present such material on the Partner
Site (the “Terms of Use”). Partner will ensure that the Customer
accepts the Terms of Use prior to the purchase of the Cancellation
Option. Partner will ensure that terms and conditions and privacy
policy of the Partner Site will include language stating that
Customer agrees that Partner may transfer personal data. Partner
shall provide Customers with customer support and assistance with
respect to all aspects of the Reservation, prior to and following
booking. Partner shall notify Roomer immediately of each
Cancellation Option purchased by a Customer and if a Reservation
for which the Cancellation Option was purchased by a Customer
was cancelled or amended, and in the event of such cancellation,
and provided that Partner refunds the Reservation Price and the
Cancellation Option Fee to the Customer, Roomer shall not be
entitled to receive the Roomer Share of Cancellation Option Fee
for that Reservation, provided further, however, that in the event
Partner fails to inform Roomer of any cancellation or amendment
of such Reservation, Roomer shall still be entitled to receive the
Roomer Share of Cancellation Option Fee that was paid by
Customer in connection with such Reservation. In the event a
Customer makes a chargeback on a Reservation via his credit card
provider, Partner shall be solely responsible to resolve the claim
with such Customer and in no event shall Roomer be responsible
or incur expenses as a result of such chargeback, unless such
chargeback results from Roomer’s failure to pay the Customer
Consideration to the Customer.
This Strategic Partnership Agreement (the “Agreement”) is
entered into on _________ 2016, (the “Effective Date”) by and
between Roomer Travel Inc., a Delaware corporation
(“Roomer”), and [NAME], of [ADDRESS] (“Partner”). Roomer
and the Partner are jointly the “Parties” and severally a “Party”.
Purpose: Roomer and Partner shall collaborate so that Partner
shall offer Roomer’s Cancellation Option for sale on the Partner's
website or offline (“Partner Site”) on a non exclusive basis.
1.
Definitions.
“Cancellation Option”: (also known as “Life Happens”) an
option offered by Roomer, available for purchase on Partner Site,
which enables a Customer to receive, upon Exercise, the Customer
Consideration from Roomer
“Cancellation Option Fee”: the purchase price of the
Cancellation Option, as set forth Schedule I, net of any sales tax or
VAT, provided that Roomer can change the Fee in its sole
discretion.
“Customer”: the customer of the Partner that purchases the
Cancellation Option while making a Reservation.
“Customer Consideration”: a certain percentage of the
Reservation Price, set forth in Schedule I hereto, in exchange for
the transfer of the Reservation to Roomer and consenting to the
Secondary Sale by Roomer in Roomer’s sole discretion, provided
that the Reservation can be transferred in a Secondary Sale.
“Exercise”: Customer’s exercise of the Cancellation Option
pursuant to Roomer’s Terms of Use that indicates that the
Customer would like to receive the Customer Consideration and
transfer the Reservation to Roomer.
“Net Roomer Secondary Sale Price”: an amount equal to the
Roomer Secondary Sale Price, net of any and all taxes, duties,
charge-backs, cancellations, refunds, money transfer fees, credit
card fees, and collection fees;
4.
Roomer shall be entitled to receive a percentage of each
Cancellation Option Fee paid to Partner by each Customer as set
forth in Schedule I hereto (the “Roomer Share of Cancellation
Option Fee”). In consideration for Partner’s services under this
Agreement, Roomer shall pay Partner a percentage of the Net
Roomer Secondary Sale Price actually received by Roomer upon
the successful completion of a Secondary Sale as set forth in
Schedule I hereto (the “Partner Share of Secondary Sale”),
provided however that Partner will not be entitled to any Partner
Share of Secondary Sale resulting from a Void Transaction. No
later than 10 days following the end of each month, Roomer shall
send a report and an invoice on the basis of such report to Partner
for the aggregate Roomer Share of the Cancellation Option Fee,
and Partner Share of Secondary Sale for the preceding month.
Each Party shall pay the other Party within 30 days following
receipt of such invoice, subject to offsetting so that only one Party
shall pay the other. The Parties shall make payments of amounts
due hereunder without deductions or tax withholding, unless
required by law and, if withholding is paid or required to be paid
by the other Party, the amount shall be subtracted from the
amounts payable to Partner by Roomer or to Roomer by Partner.
“Reservation”: the booking of a hotel reservation via the Partner
Site, which is nonrefundable or cannot be cancelled in accordance
with its terms.
“Reservation Price”: the price paid by a Customer for the
Reservation, excluding any taxes and the Cancellation Option Fee.
“Roomer Secondary Sale Price”: the price at which Roomer sold
the Reservation in a Secondary Sale to a third party through
Roomer’s online platform/website net of any processing fees.
“Secondary Sale”: following Exercise by a Customer, the sale of
the Reservation to a new Customer through Roomer’s online
platform/website or a third party channel.
“Void Transaction”: a Secondary Sale that is subsequently
cancelled, refunded, charged back, disputed by buyer, results from
unlawful activity, or for which Roomer does not receive payment.
2.
Roomer’s Obligations.
Roomer shall make the Cancellation Option available for sale on
the Partner Site. Roomer shall be entitled not to enable a Customer
to purchase the Cancellation Option for any reason in its sole
discretion. Following Exercise by a Customer and concurrently
with the transfer of the Reservation to Roomer’s website, Roomer
shall pay Customer the Customer Consideration within 14 days.
Customer shall bear any bank processing or transfer fees or
commissions applicable to the transfer of Customer Consideration
to the Customer. Following Exercise by a Customer, Roomer shall
attempt, by posting the Reservation on Roomer’s platform/web
site, or a third party channel, to resell such Customer’s
Reservations in a Secondary Sale, in Roomer’s sole discretion.
Roomer shall provide customer support with respect to the
Exercise of the Cancellation Option.
3.
Consideration, Taxes and Reports.
5.
Intellectual Property Rights and License.
Roomer grants to Partner a non-exclusive, non-transferable, nonsublicensable right and license during the Term to market, promote
and offer for sale the Cancellation Option to potential Customers;
and use Roomer’s trade names, trademarks, service marks, logos
or other similar indicia of identity or source (collectively,
“Roomer Marks”) in any promotional material relating to the
Cancellation Option, all as provided by Roomer and solely for the
purpose of promoting the sale of the Cancellation Option. Other
than the foregoing rights granted to Partner, Roomer (and its
parent company) retains all rights in and to its intellectual property.
Partner’s Obligations.
6.
1
Term and Termination.
This Agreement shall commence on the Effective Date until
terminated by either Party with 30 days’ prior written notice (the
“Term”). If either Party is in breach or default under any provision
of this Agreement, in addition to other remedies as may be
available, the non-defaulting Party may terminate the Agreement
by providing written notice to the defaulting Party. Such
termination will be effective 14 days after the date of notice unless
the defaulting Party cures the default within such 14 day period.
Either Party may terminate this Agreement immediately upon
provision of notice if the other Party commits an act of fraud or
engages in fraudulent activity vis-à-vis the other Party, becomes
insolvent, files a voluntary petition in bankruptcy or seeks
reorganization or to effect a plan or other arrangement with
creditors, applies for, consents to or acquiesces in the appointment
of any receiver or trustee for all or a substantial part of its property,
or in the event that the Cancellation Option is offered as part of
Roomer’s engagement with the Partner’s booking engine
(“Booking Engine”), then upon termination of such engagement
between Roomer and the Booking Engine, Roomer will provide
notice to the Partner, and this Agreement shall terminate at such
time as indicated in the notice. For avoidance of doubt, termination
of this Agreement will not terminate any then-current Customer
agreements or either Party's obligations to a Customer made prior
to the termination of this Agreement. The following provisions of
this Agreement shall survive the termination of this Agreement: 5,
7, 8, 9 and 10. Partner undertakes to promptly notify Roomer upon
any event of change of control in Partner.
7.
and all information concerning Roomer’s Policy is strictly
Confidential Information of Roomer.
8.
IN NO EVENT WILL A PARTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY,
PUNITIVE, OR SPECIAL DAMAGES OR FOR LOSS OF
REPUTATION, DATA, REVENUE, PROFIT, OR SAVINGS,
ARISING OUT OF OR RELATED TO THIS AGREEMENT
UNLESS CAUSED BY THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE OTHER PARTY. TO THE
FULLEST EXTENT PERMISSIBLE BY LAW, THE
AGGREGATE LIABILITY OF A PARTY SHALL BE LIMITED
TO THE AMOUNT PAID TO SUCH PARTY BY THE OTHER
PARTY PURSUANT TO THIS AGREEMENT OVER THE 24
MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM,
EXCLUDING
LIABILITY
ARISING
OUT
OF
INDEMNIFICATION CLAIMS. EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT, NEITHER PARTY
MAKES, AND EACH PARTY HEREBY WAIVES AND
DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES
REGARDING THIS AGREEMENT.
THE PARTIES
ACKNOWLEDGE AND AGREE THAT THERE ARE NO
IMPLIED WARRANTIES ARISING OUT OF COURSE OF
DEALING, COURSE OF PERFORMANCE OR USAGE OF
TRADE.
Confidential Information; Data Protection.
Neither Party other than in connection with the performance of this
Agreement will use or disclose to any third party, any confidential
information revealed to it by the other party or share confidential
information other than on a "need to know" basis with employees
or advisors who are bound by the terms hereof as if a party to, this
Agreement. Each Party shall take commercially reasonable efforts
to protect the confidentiality of the other Party’s confidential
information, including the terms of this Agreement. Each Party
shall use commercially reasonable efforts to safeguard the
confidentiality and privacy of Customer’s personal data and to
protect it from unauthorized use or release and comply with all
applicable laws, including data protection laws. Partner shall
ensure obtain consents and permissions from Customers to allow
Roomer to process such Customers personal data. Partner shall
protect personal data against accidental or unlawful destruction or
accidental loss, alteration, unauthorized disclosure or access.
Partner shall have clearly labeled and easily accessible privacy
policy that provides end users with clear and comprehensive
information about cookies, and the placement and use of third
party cookies by Roomer in connection with the provision of the
Cancellation Option. Partner shall use its best efforts to ensure that
each end user gives consent to the storing and accessing of cookies
on the end user’s device in connection with the provision of the
Cancellation Option where such consent is required by law. To
help ensure that Roomer is able to meet its commitments under the
Cancellation Option product, Roomer will secure an insurance
policy (the “Policy”) underwritten by an insurer with an AM Best
Rating of A++. Roomer’s disclosure of the existence of this Policy
Limitation of Liability; Disclaimer.
9.
Indemnification.
Each of Roomer and Partner (as applicable, the "Indemnifying
Party") will defend, indemnify and hold harmless the other Party
(the "Indemnified Party") from and against any and all third party
claims, costs, losses, damages, judgments, penalties, interest and
expenses (including reasonable attorneys' fees) arising out of or in
connection with this Agreement, based on any actual breach of the
Indemnifying Party’s representations, warranties, or obligations set
forth in this Agreement.
10. Miscellaneous.
This Agreement does not create any employer-employee, agency,
joint venture or partnership relationship between Roomer and
Partner. Each Party is an independent contractor. Partner shall
make no representations on behalf of Roomer. Neither Party shall
assign any of its obligations or rights under this Agreement
without the prior written consent of other Party, provided Roomer
may assign this Agreement and its rights hereunder to a third party
without the prior written consent of the Partner in the event such
assignment is part of a sale of all or a majority of Roomer's assets.
This Agreement shall be governed by and interpreted in
accordance with the laws of New York, without giving effect to
the rules regarding conflict of laws. All notices shall be in writing
and deemed given and received when delivered in person, by
facsimile, or by commercial air courier service on the fifth
following business day.
IN WITNESS WHEREOF the Parties have signed this Agreement as of the date hereinabove set forth
ROOMER TRAVEL INC.
[_________________________]
By:
By:
Name:
Name:
Title:
Title:
SCHEDULE I
FEES
1.
Cancellation Option Fee: 6% of the Reservation Price.
2.
Customer Consideration: 80% of the Reservation Price.
3.
Roomer Share of Cancellation Option Fee: 80% of the Cancellation Option Fee.
4.
Partner Share of Cancellation Option Fee: 20% of the Cancellation Option Fee.
5.
Roomer Share of Secondary Sale: 90% of the Net Roomer Secondary Sale Price
6.
Partner Share of Secondary Sale: 10% of the Net Roomer Secondary Sale Price