This agreement (further: „the Agreement”) is concluded
ApartmentsApart Sp. z o.o. company, with its registered seat in 2 Miła St.; 00-180 Warsaw, Poland; entered into National Court Register
kept by Warsaw District Court, XII Commercial Division, under number 0000291778,
represented by Chairman Mr. Emil Majkowski
HEREAFTER REFERRED TO IN THIS AGREEMENT AS “APARTMENTSAPART”
the applicant to the Affiliate Program,
HEREAFTER REFERRED TO IN THIS AGREEMENT AS “Affiliate"
hereafter in this Agreement referred to jointly as the “Parties”.
APARTMENTSAPART provides services including on-line accommodation reservation,
APARTMENTSAPART wishes to cooperate with Affiliate in order to increase number
of accommodation reservations,
Affiliate is willing to disseminate information concerning APARTMENTSAPART
services on its Internet site, in exchange for fee,
both parties wish to cooperate in good faith and in accordance with the
provisions of this Contract
PARTIES ACCORDINGLY DECIDE AS FOLLOWS:
The Parties decide that the terms below shall have the following meaning:
(i) “Accommodation Database” – database processed by APARTMENTSAPART including
information on availability and reservation status of APARTMENTSAPART
(ii) “Affiliate Website” – any website operated by Affiliate;
(iii) “Agreement” – this agreement
(iv) „Client” means a person interested in reservation of APARTMENTSAPART
(v) „Rules of cancellation” means rules of financial calculation applied by
APARTMENTSAPART towards Clients cancelling reservation;
(vi) “APARTMENTSAPART Accommodation” means accommodation offered by
(vii) “APARTMENTSAPART IP” – means APARTMENTSAPART trademark, commercial name
and APARTMENTSAPART Website address, as set forth in Appendix no 1 to this
(viii) “APARTMENTSAPART Website” – means main website operated by
2. SUBJECT MATTER
Under this Agreement APARTMENTSAPART undertakes to pay Affiliate a fee
conditional upon sale of APARTMENTSAPART Accommodation to a Client, provided
that the Client has been directly referred to APARTMENTSAPART Website from
Affiliate Website or made his reservation for APARTMENTSAPART Accommodation
indirectly, via Affiliate Website.
3.1 Each Party represents that it is solvent. Each Party represents that
neither provisions of law, administrative decision, judicial decision, nor
contract with a third party constitutes an obstacle for the that Party’s
performance under the Agreement.
3.2 The Parties represent that they are and shall remain separate legal
entities. The Parties declare that this Agreement is not to be construed as a
civil partnership agreement.
3.3 Affiliate represents and warrants that it holds the right to operate
Affiliate Website. Affiliate represents that Affiliate Website is set up in
accordance with the relevant law and that Affiliate Website does not infringe
upon rights of any third party.
3.4 APARTMENTSAPART represents and warrants that it holds the right to operate
APARTMENTSAPART Website. APARTMENTSAPART represents that APARTMENTSAPART
Website is set up in accordance with the Polish law and that APARTMENTSAPART
Website does not infringe upon rights of any third party.
3.5 Each Party represents that its performance under the Agreement is covered
by the scope of its registered commercial activity.
3.6 The Affiliate shall be solely liable vis-a-vis public tax authorities and
other administrative bodies with respect to his performance under the
4. RIGHTS AND OBLIGATIONS OF THE PARTIES
4.1 General provisions
4.1.1 APARTMENTSAPART grants Affiliate non-exclusive right to use links and
other references to APARTMENTSAPART Website on Affiliate Website in order to
create traffic to APARTMENTSAPART Website (further: “Direct reference”) or
process Accommodation Database on Affiliate Website in order to create demand
for APARTMENTSAPART Accommodation (further: “Indirect reference”).
4.2 Direct reference
4.2.1 Affiliate may create Direct reference to APARTMENTSAPART Website using
links, frames, searchboxes or any other suitable HTML objects. To this end,
Affiliate may use APARTMENTSAPART IP, subject to restrictions set forth below.
4.3 Indirect reference
4.3.1 Affiliate may process Accommodation Database in order to display
APARTMENTSAPART Accommodation data on Affiliate Website and book
APARTMENTSAPART Accommodation for Clients in accordance with the Accommodation
Database, subject to restrictions set forth below.
4.3.2 Affiliate is granted right to arrange the display of relevant
APARTMENTSAPART Accommodation data on Affiliate Website in a suitable manner.
However, Affiliate shall be solely liable vis-a-vis APARTMENTSAPART and
Clients for presenting on Affiliate Website APARTMENTSAPART Accommodation
(i) in a false manner, or
(ii) out-of-date, or
(iii) from the source other than APARTMENTSAPART (further:
4.3.3 APARTMENTSAPART shall be entitled to indemnification from Affiliate with
regard to damages resulting from Misrepresentation.
4.3.4 APARTMENTSAPART Accommodation data presented by means of Indirect
reference shall be accompanied by the Rules of cancellation, in a manner
legally binding the Client in respect of the Rules of cancellation.
4.3.5 Gaining access and processing Accommodation Database shall be effected
by Affiliate in a manner set forth in the Appendix 2 to Agreement.
APARTMENTSAPART undertakes to enable Affiliate to gain access to Accommodation
Database within the framework set forth in the Agreement.
4.4.1 For the purposes of making Direct reference or Indirect reference,
APARTMENTSAPART grants Affiliate non-exclusive licence on the following
(i) licence to use APARTMENTSAPART IP,
(ii) licence to process Accommodation Database (further: “Licence”).
4.4.2 The Licence is limited to the territory of the state in which Affiliate
has its seat.
4.4.3 Affiliate shall have no right to grant the Licence or its part to any
other party, unless Affiliate obtains APARTMENTSAPART’s consent in a written
form, under the pain of nullity.
4.4.4 The Licence shall be automatically revoked once the Agreement is
terminated, rescinded or otherwise ceases to bind any of the Parties. In such
situation, Affiliate shall be bound to cease any activity having regard to the
subject matter of the Licence, in particular Affiliate shall be bound to
immediately remove APARTMENTSAPART’s trademarks, commercial name and
APARTMENTSAPART Website address from Affiliate Website.
4.4.5 The Agreement does not transfer any other rights to Affiliate, in
particular the Agreement does not transfer APARTMENTSAPART IP, Accommodation
Database property rights or any other rights in any IP or any databases to
4.4.6 Affiliate undertakes to protect APARTMENTSAPART IP and Accommodation
Database. In particular, Affiliate undertakes to deny the access and protect
Accommodation Database from intrusion of any third party or other unauthorised
person. Affiliate undertakes to inform APARTMENTSAPART to any infringements or
attempted infringements upon APARTMENTSAPART IP or Accommodation Database.
4.4.7 Affiliate acknowledges that APARTMENTSAPART IP and Accommodation
Database are subject to legal protection as a sole property of APARTMENTSAPART
and that APARTMENTSAPART is entitled to modify and assign APARTMENTSAPART IP
and Accommodation Database.
4.4.8 Affiliate acknowledges that use of APARTMENTSAPART IP and Accommodation
Database contrary to the Agreement may give rise to civil and criminal
liability on the part of Affiliate.
4.5 Additional duties, disclaimers and liability
4.5.1 All Direct references and Indirect references shall be created by
Affiliate in an aesthetic manner. Direct references and Indirect references
shall not be accompanied or set as a background or put in the context of
visual or verbal elements which presence in the Internet is contrary to the
law, Internet ethics or commonly acknowledge customs or infringe upon rights
of third parties.
4.5.2 Affiliate shall not enjoy the status of APARTMENTSAPART’s exclusive
agent neither with respect to territory nor group of Clients.
4.5.3 APARTMENTSAPART shall not bear any liability in case of malfunction of
APARTMENTSAPART Website or Accommodation database.
5.1 Affiliate shall be entitled to fee calculated on the basis of
APARTMENTSAPART commission related to the value of the lease of
APARTMENTSAPART Accommodation to a given Client, directed to APARTMENTSAPART
Website by mean of Direct reference or booking APARTMENTSAPART Accommodation
by mean of Indirect reference (further: “Fee”). The Fee shall be due provided
that the Client, reserves APARTMENTSAPART Accommodation and pays the rent in
5.2 The Fee shall amount to 25% of the APARTMENTSAPART commission reduced by
APARTMENTSAPART’s operational costs. APARTMENTSAPART’s operational costs shall
include credit card commissions and cash transfer costs.
5.3 The Fee shall be due at the end of the month following the month in which
APARTMENTSAPART gained right to its commission. Affiliate shall be entitled to
inspect the status of the Clients’ reservations on the basis of the
Accommodation database. The Parties agree that granting Affiliate an access to
the Accommodation database as set forth in this provision of the Agreement
meets the requirements set forth in Art. 761(5) sec. 1 and 2 of the Polish
5.4 The Fee shall be transferred to Affiliate upon delivery of the commercial
5.5 he Fee shall rise and reach higher level of the commission depending on
the volume of sales according to the schema published on www.theaparts.net
6.1 The Parties shall keep the terms of the Agreement confidential.
Information conveyed by one Party to the other shall be used solely for the
purpose resulting directly from the execution of the provisions of this
Agreement. Any information, referred to above, may be disclosed to a third
party only upon gaining consent of the second Party, unless a duty to disclose
results from the binding provisions of law.
6.2 The provisions of this part of the Agreement shall be applied within the 5
years following the moment in which given information was disclosed to the
second Party, but not shorter than 10 years since the conclusion of this
6.3 Each Party shall be liable for any damages resulting from the breach of
duty to keep information confidential.
7. DURATION AND TERMINATION OF THE AGREEMENT
7.1 General provisions
7.1.1 The Agreement is concluded for 1 year.
7.1.2 Upon the lapse of each 1 year period, the duration of the Agreement is
to be extended for next period of 1 year, unless notice to other effect is
produced and delivered by any of the Parties acting within the lapsing period.
7.1.3 The Agreement may be terminated:
(i) in any time – without notice of termination, with immediate effect,
(ii) by the mean of a notice of termination.
7.1.4 Termination of the Agreement with or without the notice of termination
shall take effect upon delivery to the second Party of the statement of one of
the Parties, drawn in the written form under the pain of nullity.
7.2 Termination of the Agreement without notice
7.2.1 This Agreement is subject to immediate termination, without prejudice to
the rights of any of the Parties, in case:
(i) any of the Parties recurrently breaches its obligations set forth in the
(ii) APARTMENTSAPART fails to perform its obligation to pay any due invoice,
regardless of delivery of the written notice to this fact by Affiliate and
fixing additional 1 month term to pay.
7.2.2 In case the Agreement is terminated due to Affiliate’s breach, Affiliate
shall not be entitled to any outstanding fee or fee due in future.
7.3 Termination of the Agreement with notice
7.3.1 Each Party may terminate the Agreement further to 3 months prior notice.
8.1 Assignment of rights and obligations
8.1.1 Affiliate shall not assign any of its rights and obligations resulting
from the Agreement to the third parties without prior consent of
APARTMENTSAPART, drawn in the written form under the pain of nullity.
8.1.2 APARTMENTSAPART is free to assign any of its rights and obligations
resulting from the Agreement to the third parties without prior consent of
Affiliate. The assignment shall be effective upon the delivery of the
assignment notice to Affiliate.
8.2.1 All amendments to the Agreement shall be made in the written form under
the pain of nullity.
8.3 Salvatory clause
8.3.1 Should any provision or part of the provision of this Agreement be
declared invalid, the rest remains in force while the Parties shall undertake
such steps as will be necessary in order to achieve the goals and purposes of
the Agreement in some other, legally acceptable, manner.
8.4 Resolution of the disputes
8.4.1 Any disputes that may result from the application of the Agreement shall
be resolved by the Parties by means of negotiations led in good faith. Each
Party shall undertake an attempt to negotiate the dispute on the basis of a
written request, served by the other Party.
8.4.2 Should negotiations between the Parties fail, the dispute will be
resolved by the Polish court in the APARTMENTSAPART’s registered seat
8.5 Third parties
8.5.1 The Agreement shall not be construed as giving rise to any rights or
claims on the part of any third party.
8.6 Applicable law
8.6.1 The Polish law shall be applicable to this Agreement.
Appendix no 1 to the Agreement
APARTMENTSAPART IP consists of:
Names, trade marks, logos, symbols, other commercial names, addresses and
names of websites, sub-websites and internet domains; in particular:
Logos, names, commercial names and trademarks of: APARTMENTSAPART Group, Old
Town Apartments, Apartments Apart
Addresses, telephone and fax numbers of the aforementioned companies
Graphic as well as textual contents of the elements listed in section 1, that
fall under copyright protected categories, in particular: graphic and textual
descriptions concerning the apartments and other types of APARTMENTSAPART
Accommodation; banners; maps; the general pattern of the layout of specific
elements, fragments of the source code of the aforementioned, in different
programming languages; the contents of translations, agreements and contracts
Appendix no 2 to the Agreement
Partner’s accessing any data and materials, APARTMENTSAPART IP etc., is clearly
described and is pursued and performed by means of the panel available at the
www.theaparts.net site, in a default manner, according to the instructions
available there or provided by an appropriate APARTMENTSAPART employee. Any
accessing through hacking, inappropriate or incorrect use, circumventing
security measurements and system, access ways and manners as well as tools
intended, designed and created specifically and solely for this purpose, is