HOLIBOB'S GENERAL TERMS AND CONDITIONS
1. Definitions and Interpretations
1.1. The definitions and rules of interpretation set out in Schedule 1 (Definitions) apply to the Agreement.
2. Term
2.1. The Agreement commences on the Effective Date and shall continue for the Minimum Term. The Agreement shall then automatically continue at the end of the Minimum Term on an indefinite basis (“Continuing Term”) unless and until either Party gives to the other Party notice to terminate of at least the Minimum Notice Period with termination taking effect on the expiry of that notice, which shall not be before the end of the Minimum Term.
3. The Services
3.1. Holibob shall provide to the Partner the Services and the scope of work specified in the Agreement Details, each in accordance with the Agreement.
3.2. Holibob shall use commercially reasonable endeavours to make each Service available in accordance with its relevant Service Level Agreement.
4. Technology License
4.1 Holibob hereby grants to the Partner and its Authorised Users a personal, non-exclusive, non-transferable, non-sublicensable (other than as permitted under the Agreement) right during the Term to: (i) access and use the Holibob Technology; and (ii) upload Partner Content to the Holibob Technology, in each case as is necessary for the Partner to receive and make use of the Services.
4.2. The Partner shall not, and shall not permit any Authorised User (except to the extent expressly permitted under the Agreement) to:
4.2.1. copy, modify, duplicate, make error corrections to, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute (or attempt to do any of the foregoing) all or any portion of the Holibob Technology in any form or media; or decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Holibob Technology (or attempt to do any of the foregoing), in each case, except as may be expressly authorised by either the Agreement or prior written instructions of Holibob, or allowed by any Applicable Laws which are incapable of exclusion by agreement between the parties;
4.2.2. at any time access all or any part of the Holibob Technology in order to develop or create a product or service which competes with the Holibob Technology, or to copy its features or user interface;
4.2.3. license, sell, rent, lease, transfer, assign, pledge, distribute, transfer, commercially exploit, or otherwise make available the Holibob Technology to any third party except the Authorised Users;
4.2.4. use the Holibob Technology in any way that could damage, disable, overburden, impair or compromise Holibob’s security or interfere with other users of the Holibob Technology;
4.2.5. allow the Holibob Technology (or any part thereof) to become the subject of any charge, lien or encumbrance;
4.2.6. obscure, alter, add to, remove or attempt to remove Holibob’s trade name, logo or any copyright, trademark or proprietary notice of Holibob appearing in or on the Holibob Technology;
4.2.7. introduce or permit the introduction of any Virus or Vulnerability into the Holibob Technology or distribute or transmit into or through the Holibob Technology any material that is unlawful or harmful; or
4.2.8. attempt to gain unauthorized access to or disrupt the integrity or performance of the Holibob Technology.
4.3. The Partner shall be permitted to sub-license the Holibob Technology to any Partner Licensee approved in writing by Holibob, provided that each Partner Licensee complies with all restrictions, obligations and requirements imposed on the Partner in the Agreement. The Partner shall remain fully responsible for any use of the Holibob Technology by each Partner Licensee. The Partner will cause each Partner Licensee to comply with the terms and conditions of the Agreement and the Partner will be liable for the acts and omissions of each Partner Licensee, in each case as though each Partner Licensee was the Partner. No Partner Licensee may enforce the terms of the Agreement against Holibob. 4.4. The Partner shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Holibob Technology or the Services and, in the event of any such unauthorised access or use, shall promptly notify Holibob.
4.5. The Partner has no right to obtain or have access to the source code or systems and programming documentation of the Holibob Technology or any part of it. The Holibob Technology and all information related thereto will be subject to the Customer’s obligations of confidentiality under Clause 16.
5. Implementation, Testing and Acceptance
5.1. Holibob shall provide such implementation and testing services as are set out in an Annex, the Agreement Details (under Scope of Work), or as are otherwise agreed in writing between the Parties, to enable the Partner to access and use the Holibob Technology and to receive the Services as permitted pursuant to the Agreement.
5.2. The parties will cooperate regarding appropriate integration, testing procedures, and acceptance tests for the Holibob Technology.
6. Authenticate to Platform
6.1. If a Service requires ‘Authentication to Platform’ (such Services being the Holibob API Service, the Agent Portal Service, the Switch Technology Service, the Bookable Extranet Service and the Holibob Hub), Holibob will provide each Authorised User with a specific user account (“User Account”) which the Authorised User will be required to authenticate with a username and password, or through a single-sign-on function, or through an API (using API and Security Key) provided by Holibob. In respect of each User Account the Partner shall ensure that each Authorised User keeps a secure password for his use of the User Account which shall be changed regularly, and that each Authorised User shall keep his password confidential.
6.2. The Partner acknowledges and agrees that Holibob shall have the right (but not the obligation) to monitor the User Accounts in order to ascertain compliance with the Agreement. If Holibob determines that an Authorised User has breached the Agreement, then without prejudice to Holibob’s other rights, Holibob may disable the Authorised User’s access to the Holibob Technology and Holibob will not issue any new passwords to the relevant Authorised User.
6.3. The Partner will at all times remain responsible for the acts and omissions of its Authorised Users.
7. Partner Obligations
7.1. The Partner shall:
General
7.1.1. provide Holibob with all necessary co-operation in a timely manner in relation to the Agreement as may be required by Holibob to provide the Services;
7.1.2. provide to Holibob, in a timely manner, the documents, information, items and materials in the form requested by Holibob so as to enable Holibob to provide the Services, and ensure that they are (to the best of the Partner’s knowledge and belief) accurate and complete;
7.1.3. designate a key point of contact who shall have the authority to contractually bind the Partner on matters relating to the Agreement and the Services;
7.1.4. comply with all Partner responsibilities and obligations set out in the Annexes;
7.1.5. ensure that Authorised Users use the Services and the Holibob Technology only in accordance with the Agreement;
7.1.6. comply with all Applicable Laws, including those relating to the export of data and software which relate to its activities under the Agreement;
7.1.7. obtain and shall maintain all necessary licences, consents, and permissions necessary to receive the Services;
Connectivity
7.1.8. ensure that its network, systems and connections comply with the relevant specifications provided by Holibob from time to time;
7.1.9. maintain any minimum hardware and software requirements notified by Holibob from time to time in order to receive the Services;
7.1.10. procure, maintain and secure its network connections and all links from its systems to the Holibob Technology;
Holibob Content
7.1.11. not amend, alter or tamper with the Holibob Content (unless otherwise agreed by Holibob) and not reproduce or publish the Holibob Content in such a manner that it provides a misleading or inaccurate account or depiction of the Tours and Experiences;
7.1.12. not copy, store, archive, sell, or create a database of data or information obtained via the Holibob Technology (including Holibob Content), in whole or in part, directly or indirectly unless such actions are required for the purpose of fulfilling its obligations under the Agreement;
7.1.13. only use Content received via the Holibob Technology or otherwise from Holibob for the sole purpose of promoting the Tours and Experiences to which such Content relates and for generating Bookings;
Partner Suppliers
7.1.14. if any Annex specifies that Partner Suppliers will be accessed through the Holibob Technology:
7.1.14.1. provide a list of Partner Suppliers that it wishes to access;
7.1.14.2. use best endeavours to ensure that Partner Content is accurate and not misleading and if it becomes aware that any Partner Content is inaccurate in any respect, including Supplier Prices and Availability, notify Holibob immediately and remove (or notify Holibob that it should remove) such Partner Content until it has been rectified;
7.1.14.3. be responsible for making all payments to Partner Suppliers directly.
7.2. The Partner may permit any Partner Supplier to upload Partner Content to the Holibob Technology, provided that each Partner Supplier complies with all restrictions, obligations, and requirements imposed on the Partner in the Agreement. The Partner shall remain fully responsible for any use of the Holibob Technology by each Partner Supplier, the Partner will cause each Partner Supplier to comply with the terms and conditions of the Agreement and the Partner will be liable for the acts and omissions of each Partner Supplier, in each case as though each Partner Supplier was the Partner. No Partner Supplier may enforce the terms of the Agreement against Holibob.
Partner Payment Gateway
7.3. If an Annex specifies that the Partner will provide or will procure the provision of the Partner Payment Gateway for Bookings:
7.3.1. the Partner shall verify the accuracy and completeness of all card transaction data submitted for such Bookings (“Card Transaction Data”), including determining the appropriate action to be taken for each such transaction (approve, void, reject or decline);
7.3.2. the Partner will maintain appropriate administrative, technical and physical safeguards for all Card Transaction Data and use only approved or validated payment software applications;
7.3.3. the Partner shall ensure all payment instructions are accurate, not improper or fraudulent and error free.
7.4. The Partner warrants that:
7.4.1. it shall obtain and maintain in full force all necessary consents, approvals, authorisations, licences and permissions that the Partner requires to perform its obligations under the Agreement;
7.4.2. where the Partner Payment Gateway is being used, it has achieved and will maintain Payment Card Industry (PCI) compliance;
7.4.3. it will not knowingly take or omit to take any action which may affect Holibob’s relationship with Third Party Suppliers, or cause or permit to be done anything which may cause Holibob to be excluded from the process of booking with any Third Party Suppliers, or persuade, induce or attempt to induce any Third Party Supplier to terminate its contract with or reduce its dealing and business with Holibob; and
7.4.4. it will not disparage and/or bring into disrepute Holibob, or cause and/or carry out any activities that may cause damage to the Holibob name/brand, reputation, goodwill, business or relationships with any of its partners, customers and/or other third parties.
8. Holibob Obligations
8.1. Holibob undertakes that it shall provide the Services with reasonable skill and care.
8.2. The undertaking at Clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Holibob’s instructions, or modification or alteration of the Services by any party other than Holibob or Holibob’s duly authorised contractors or agents. If the Services do not conform with the undertaking at Clause 8.1, Holibob will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Partner with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Partner’s sole and exclusive remedy for any breach of the undertaking set out in Clause 8.1.
8.3. Notwithstanding Clause 8.2, Holibob:
8.3.1. will take reasonable steps to avoid introducing any Virus to the Holibob Technology but does not warrant that the Holibob Technology or the Services will be free from Vulnerabilities or Viruses;
8.3.2. will, as soon as reasonably practicable, respond to and resolve or otherwise fix any bugs or other malfunctions with the Holibob Technology of which it is aware but does not warrant that the Partner’s use of the Services will be uninterrupted or error-free.
8.4. Holibob warrants that:
8.4.1. it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement and will comply with all Applicable Laws in relation to the Services;
8.4.2. it has achieved and will maintain Payment Card Industry (PCI) compliance for the Holibob Payment Gateway;
8.4.3. it will not disparage and/or bring into disrepute the Partner, or cause and/or carry out any activities that may cause damage to the Partner name/brand, reputation, goodwill, business or relationships with any of its partners, customers and/or other third parties.
8.5. Except to the extent set out in any Annex or a Service Level Agreement, Holibob does not warrant or guarantee the availability, the interoperability, compatibility, connectivity (or lack thereof) of any of the Holibob Technology.
8.6. In the event of any delays in the Partner’s provision or completion of its obligations under the Agreement, Holibob may adjust any agreed timetable or delivery schedule as reasonably necessary.
9. Suppliers, Supplier Prices and Bookings
9.1. Holibob may, without notice to the Partner, add, remove, suspend or vary any of the Third Party Suppliers for any reason. Any such change will not impact a Customer contract with a Third Party Supplier.
9.2. The Partner acknowledges and agrees that:
9.2.1. Holibob is not the provider of any Tours and Experiences nor does it have any control over the Third Party Suppliers or the Tours and Experiences;
9.2.2. Holibob is not a party to any contract with a Customer for a Tour and Experience and accordingly, Holibob does not have any liability to any Customer by virtue of any consumer legislation, including the PTR;
9.2.3. if the Partner (or any agent of the Partner) combines Tours and Experiences with other arrangements and creates a Package, Holibob shall not have any liability to any Customer by virtue of any consumer legislation, including the PTR.
9.3. The parties acknowledge and agree that Holibob is not an agent of the Partner except that it may act as a payment collection agent if it provides the Holibob Payment Gateway.
9.4. The Partner shall not make (or permit the making of) any speculative, false, dummy or fraudulent Bookings. The Partner accepts liability for all Bookings that are placed via the API, including any speculative, false, dummy or fraudulent Bookings made.
Cancellations
9.5. The Partner shall ensure that, prior to completing a Booking, it is aware of the relevant cancellation and amendment terms applied by the Third Party Supplier in relation to the relevant Tour and Experience. If the Partner (whether due to a request of its Customer or otherwise) is required to cancel or amend a Booking, the applicable cancellation and/or amendment fees charged by the Third Party Supplier shall be payable to the Third Party Supplier through the same Holibob Technology through which the Booking was made. 9.6. In respect of Bookings made via the Holibob API, the Partner shall make any amendment and/or cancellations to such Bookings via the relevant cancellation API and via Holibob directly unless prior approval has been granted by Holibob. 9.7. In respect of the amendment or cancellation of a Booking made via the: 9.7.1. White Label Website and Marketing Platform, Holibob shall process any refund due to a Customer; 9.7.2. Agent Portal or Holibob API, Holibob shall deduct the relevant Fee for which Partner had already been charged against Holibob’s next invoice to the Partner; 9.7.3. Switch Technology, the Partner shall process any refund due to a Customer. Supplier Prices 9.8. Subject to clause 9.11, Holibob will provide the Supplier Prices and Availability for the Holibob Content, as generated by the Holibob API, and the Partner will provide the Supplier Prices and Availability for the Partner Content. 9.9. The Supplier Price and Invoice Currency communicated to the Partner at the time a Booking is made is the Supplier Price and currency that will apply to that Booking. 9.10. In respect of Bookings made via the Holibob API or the Agent Portal: 9.10.1. All invoices will be payable in the Invoice Currency; 9.10.2. if requested by the Partner, Holibob may provide Supplier Prices in a currency that differs from the Invoice Currency. 9.10.3. The Supplier Prices quoted via the Holibob API and Agent Portal shall be, unless stated otherwise, inclusive of applicable service charges and taxes (except for taxes which are directly collected by the Third Party Supplier from the Customer on arrival or departure from the relevant Tour and Experience). 9.11. The Supplier Prices for Holibob Suppliers made available by Holibob are confidential and may not be disclosed by the Partner to any person for any reason. In particular, the Partner may not, without Holibob’s prior written consent, contact a Holibob Supplier for the purpose of negotiating new Supplier Prices or for any other reason adverse to Holibob.
10. Marketing and Branding
10.1. The Partner may market and promote the Tours and Experiences accessed or made available through the Holibob Technology at the Partner’s sole discretion. 10.2. The Partner shall, if required as part of the Services, provide to Holibob the Partner’s Brands in the format required by Holibob. Holibob shall comply at all times with the Partner Brand Guidelines. If the Partner wishes to amend the Partner Brand Guidelines, the Partner shall: 10.2.1. notify Holibob in advance in writing, after which, Holibob shall update the relevant parts of the Holibob Technology which contain the Partner’s Brands as soon as reasonably possible; and 10.2.2. reimburse Holibob for or pay the reasonable costs actually incurred by Holibob in making any such changes required. 10.3. Notwithstanding clause 10.1, in respect of the White Label Website, the Partner shall: 10.3.1. provide a link on its website to the White Label Website in order to promote and encourage bookings of Tours and Experiences; 10.3.2. carry out the Partner marketing obligations set out or referred to in the Agreement Details in accordance with any specified schedule or timeline; 10.3.3. send all marketing communications which include Holibob Content to Holibob for Holibob’s prior review and approval before sending any such communications to Customers. 10.4. Holibob shall: 10.4.1. co-operate with the Partner in relation to any voucher promotions, flash sales, or similar that are agreed with Holibob and Partner Suppliers from time to time; and 10.4.2. obtain approval of the Partner prior to undertaking any marketing of the White Label Website itself.
11. Fees and Payment
Fees
11.1. In consideration of the provision of the Services, the Partner shall pay the Fees to Holibob in accordance with the Agreement Details and this clause, and from the Agreed First Billing Date set out in the Agreement Details.
11.2. In respect of Bookings placed through a Service using the Holibob Payment Gateway, Holibob shall receive the Supplier Commission and Holibob shall pay the relevant Partner Commission Share on such Bookings to Partner.
11.3. In respect of Bookings placed through a Service using the Partner Payment Gateway, Partner shall receive the Supplier Commission and Partner shall pay the relevant Transaction Fees, Holibob Commission Share and/or Holibob Commission Take on such Bookings to Holibob.
11.4. Holibob shall, within ten (10) Business Days of the end of each calendar month during the Term, provide Partner with a Report, through the Holibob Hub, and issue a corresponding invoice for (i) the Fees due to Holibob and (ii) any amounts due to Holibob Suppliers pursuant to clause 11.9.2, in each case payable in respect of the previous month. All invoices shall take account of the Minimum Fee already received from Partner and any Partner Commission Share accruing in such month pursuant to clause 11.2.
11.5. If either party gives a refund of any Supplier Commission on which any fee or commission, has already been paid to a party, such party shall inform the other party and a corresponding deduction of such fee or commission shall be made in the immediately following Report.
11.6. The Fees are stated exclusive of VAT, goods and services tax or similar sales tax, which if applicable shall be payable in addition to the Fees.
11.7. If either party discovers that an amount received or paid is incorrect, that party will notify the other as soon as reasonably practicable, but in any event within 14 days following receipt of such notification, the paying party shall make such additional payment as is necessary in order to rectify the error.
11.8. If any review or audit reveals that the Partner has received an overpayment, the Partner will refund a sum equivalent to the overpayment as soon as reasonably practicable but in any event within fourteen 14 days following such discovery.
Payments to Third Party Suppliers
11.9. In respect of Holibob Suppliers:
11.9.1. Holibob shall liaise with, deal with invoicing for, and pay all Holibob Suppliers in accordance with the payment terms agreed between Holibob and each Holibob Supplier. The Partner shall have no obligation to make any payments to Holibob Suppliers;
11.9.2. if Customer payments are made through the Partner Payment Gateway, Partner will pay to Holibob the amounts due to Holibob Suppliers as shown in the relevant Report and at the same time as paying Holibob the relevant Fees.
11.10. In respect of all Partner Suppliers, the Partner shall liaise with, deal with invoicing for, and pay the Partner Suppliers in accordance with the payment terms agreed between the Partner and each Partner Supplier. Holibob shall have no obligation to make any payments to Partner Suppliers.
Invoicing
11.11. All invoices for Fees are payable to Holibob’s nominated bank account in the Invoice Currency within 14 days of the date of invoice.
Security
11.12. If specified in the Agreement Details the Partner shall provide the payment security specified in the Agreement Details in accordance with any applicable terms agreed in writing with Holibob. The Partner acknowledges that Holibob shall be under no obligation to provide any Services until such payment security has been put in place by the Partner.
General
11.13. The paying party shall bear the cost of all banking or other money transfer fees due on any payment made so that the sums received by the other party equal the amount specified on the relevant invoice.
11.14. Any sums not paid when due will accrue interest daily from the date when the overdue sum became due, until it is paid in full, at an annual rate of six percent (6%) above the Bank of England base rate from time to time.
11.15. Neither Party shall be entitled to set off or credit against any amount owed by it to the other party under the Agreement.
11.16. A dispute relating to any alleged over- or underpayment under the Agreement shall be referred to a third-party auditor agreed between the parties (each party acting reasonably) whose determination shall be final and binding.
12. Intellectual Property Rights
12.1. The Partner acknowledges and agrees that Holibob (or its licensors) own all Intellectual Property Rights subsisting in Holibob’s Brands, the Holibob Technology (excluding any of the Partner’s Brands that form part of or are displayed on it) and the Holibob Content and all Intellectual Property Rights created in the performance of the Services (including pursuant to any development work) (together, the “Holibob IPR”).
12.2. Holibob acknowledges and agrees that the Partner (or its licensors) own all Intellectual Property Rights subsisting in the Partner’s Brands, the Partner Technology System, the Partner Content and the Partner Integration Code (together the “Partner IPR”).
12.3. Save as set out in the Agreement, neither Party shall acquire any rights, title or interest in any Intellectual Property Rights belonging to the other Party.
12.4. Holibob hereby grants to the Partner a non-exclusive, royalty free, non-transferable, revocable right and license during the Term to:
12.4.1. use and display the Holibob Content to promote and market the Tours and Experiences accessed or made available through the Holibob Technology, to make Bookings and to receive the Services, each in accordance with the terms of the Agreement;
12.4.2. provided the prior written consent of Holibob has been obtained, use and display Holibob’s Brands as necessary to promote and market the Tours and Experiences accessed or made available through the Holibob Technology, to make Bookings, to perform its obligations under the Agreement and to receive the Services;
12.4.3. use and promote the White Label Website [and the Marketing Platform] in order to promote and market the Tours and Experiences accessed or made available through the Holibob Technology, to make Bookings, to perform its obligations under the Agreement and to receive the Services.
12.5. The Partner hereby grants to Holibob a non-exclusive, royalty free, non-transferable, revocable right and license during the Term to use and display the Partner’s Brands and the Partner Content in and on the Holibob Technology in accordance with the Partner Brand Guidelines and otherwise as necessary in each case to perform its obligations under the agreement, or as otherwise agreed by the Partner.
12.6. The rights and licences granted by clauses 12.4 and 12.5 shall be revocable in accordance with the termination provisions of the Agreement.
12.7. The Partner warrants and represents to Holibob that:
12.7.1. it has, and will continue to have, all necessary consents, licences or permissions to use the Partner IPR; and
12.7.2. none of the Partner IPR used by Holibob in the provision of the Services or its obligations under the Agreement will infringe the Intellectual Property Rights of any third party.
12.8. Holibob warrants and represents to the Partner that:
12.8.1. it has, and will continue to have, all necessary consents, licences or permissions to use the Holibob IPR; and
12.8.2. none of the Holibob IPR used by the Partner in accordance with the Agreement will infringe the Intellectual Property Rights of any third party.
13. Data Protection
13.1. The Parties shall comply with the data protection provisions set out in Schedule 2.
14. Suspension
14.1. Holibob may suspend the Partner's licence and access to the Holibob Technology and/or the Services:
14.1.1. if there is an Excluded Event; or
14.1.2. if the Partner’s use of the Holibob Technology and/or the Services threatens the security, integrity or availability of the Holibob Technology and/or the Services.
14.2. In exercising its right to suspend, Holibob will act reasonably, provide prior written notice to the Partner where possible and endeavour to keep the duration of any suspension as short as possible.
14.3. In suspension arises due to a breach by the Partner of any of its obligations, Holibob will provide the Partner with an opportunity to remedy such breach prior to suspension if the breach is remediable. Unless the Agreement is terminated pursuant to clause 15, Holibob shall end the suspension as soon as reasonably practicable after the Partner has remedied the breach to Holibob’s reasonable satisfaction.
14.4. Holibob shall have no liability to the Partner arising from any suspension under this clause and any such suspension will be without prejudice to Holibob’s other rights and remedies.
15. Termination
15.1. Without prejudice to any other rights or remedies to which the Parties may be entitled, either Party may terminate the Agreement if:
15.1.1. the other Party commits a material breach of, or persistently breaches, any of the terms of the Agreement and (if such a breach or breaches are remediable) fails to remedy that breach or those breaches within twenty-eight (28) days of that Party being notified in writing of them; or
15.1.2. the other Party fails to pay any amount due under the Agreement on the due date for payment and remains in default at least twenty-eight (28) days after being notified in writing to make such payment; or
15.1.3. the other Party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or ceases, or threatens to cease, to trade or is subject to any analogous event or proceeding in any applicable jurisdiction.
15.2. Holibob may terminate the Agreement on immediate written notice to the Partner (without liability) if Holibob determines, acting reasonably, that the Partner (or its Customer) has jeopardised Holibob’s relationship with any Third Party Supplier or other commercial partner.
15.3. On termination of the Agreement for any reason:
15.3.1. on receipt of payment of all outstanding Fees from Partner, Holibob shall assign to Partner the WLW Content and Partner shall grant to Holibob a non-exclusive, perpetual, sub-licensable, royalty-free, worldwide, irrevocable licence of the WLW Content (excluding any of the Partner’s Brands in the same) to use for any purpose and in any media;
15.3.2. all licences (save the licence at clause 15.3.1) granted under the Agreement shall immediately terminate;
15.3.3. each Party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other Party;
15.3.4. Holibob shall:
15.3.4.1. continue to pay to the Partner any Partner Commission Share due in respect of Bookings made prior to the effective date of termination;
15.3.4.2. without prejudice to Holibob’s obligations in respect of any Bookings made but not fulfilled prior to effective date of termination, immediately cease using Partner’s Brands;
15.3.5. the Partner shall continue to pay to Holibob any Fees due in respect of Bookings made prior to the effective date of termination;
15.3.6. the accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
16. Confidentiality and Publicity
16.1. Each Party undertakes that it shall not at any time during the Agreement and shall not for a period of five (5) years after termination of the Agreement, disclose to any person any Confidential Information of the other Party, except as permitted by this clause.
16.2. Each Party may disclose the other Party’s Confidential Information:
16.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the Party’s obligations under the Agreement. Each Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other Party’s confidential information comply with this clause; and
16.2.2. as may be required by law, court order of competent jurisdiction or any governmental or regulatory authority.
16.3. Holibob may disclose the Partner’s Confidential Information to its Affiliates who need to know such information for the purposes of carrying out Holibob’s obligations under the Agreement.
16.4. No Party shall use the other Party’s Confidential Information for any purpose other than to perform its obligations under the Agreement.
16.5. The provisions of this clause shall not apply to any Confidential Information that:
16.5.1. is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its representatives in breach of this clause);
16.5.2. was available to the receiving party on a non-confidential basis before disclosure by the disclosing party; or
16.5.3. was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party.
16.6. On expiry or earlier termination of the Agreement each Party shall return to the other Party all documents and materials containing the other’s Confidential Information and shall erase all the other’s Confidential Information from its computer and other software or media storage systems, provided that the receiving Party may retain materials containing Confidential Information to the extent required by law or any applicable governmental, administrative or regulatory authority or by an order of any court or other authority of competent jurisdiction.
16.7. Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information are granted to the other Party or to be implied from the Agreement.
16.8. The provisions of this clause shall survive expiry or earlier termination of the Agreement.
17. Indemnities
17.1. Holibob shall indemnify the Partner and hold it harmless from and against all Losses that the Partner may incur or for which it may become liable as a result of or in connection with:
17.1.1. any breach by Holibob of Holibob’s obligations of confidentiality under clause 16;
17.1.2. any failure by Holibob to comply with its obligations in respect of data protection under clause 13 and Schedule 2; and
17.1.3. any claim that the use of any of the Services by the Partner in accordance with the Agreement infringes the Intellectual Property Rights of a third party.
17.2. The Partner shall indemnify Holibob and hold it harmless from and against all Losses that Holibob may incur or for which it may become liable as a result of or in connection with:
17.2.1. any breach by the Partner of the Partner’s obligations of confidentiality under clause 16;
17.2.2. any failure by the Partner to comply with its obligations in respect of data protection under clause 13 and Schedule 2;
17.2.3. any claim made against Holibob that Holibob’s use of any Partner IPR infringes the Intellectual Property Rights of a third party;
17.2.4. any improper performance or non-performance of a Tour or Experience provided by a Partner Supplier;
17.2.5. any third party claim against Holibob relating to a Tour or Experience provided by a Partner Supplier;
17.2.6. a breach by the Partner of clause 9.11 (Holibob Supplier Supplier Prices);
17.2.7. a breach by the Partner of clause 7.3 (Partner Payment Gateway).
17.3. The obligations of the Partner under clause 17.2 and Holibob under clause 17.1 are conditional on:
17.3.1. the indemnifying party being given prompt notice of any relevant claim;
17.3.2. the indemnified party providing reasonable co-operation to the indemnifying party in the defence and settlement of such claim, at the indemnifying party expense; and
17.3.3. the indemnifying party being given sole authority to defend or settle such claim.
18. Limitations of Liability
18.1. Nothing in the Agreement excludes the liability of any Party: (i) for death or personal injury caused by that Party's negligence; (ii) for fraud or fraudulent misrepresentation; or (iii) for any other liability that cannot be excluded under Applicable Laws.
18.2. Nothing in the Agreement excludes the liability of either party to pay the Fees.
18.3. Neither Party shall have any liability to the other under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory or equitable duty, misrepresentation, restitution or otherwise, (i) for any direct or indirect loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information; or (ii) for any special, indirect or consequential loss.
18.4. The Parties agree that direct losses include any fines, expenses or other losses arising from a breach by the other Party of any Applicable Law.
18.5. Holibob shall have no liability for:
18.5.1. any Losses incurred by the Partner as a result of any Service not being available for use by the relevant Target Go Live Date;
18.5.2. the Partner’s network connections or any links from the Partner’s systems to the Holibob Technology, and/or any Losses arising from a delay or delivery failure in or of them;
18.5.3. any delays, delivery failures, or any other Losses resulting from the transfer of data over communications networks and facilities, including the internet;
18.5.4. any unavailability of a Third Party Supplier’s API;
18.5.5. any Losses of the Partner arising from the Partner’s failure to comply with any of its obligations in the Agreement;
18.5.6. making payments to Partner Suppliers;
18.5.7. accepting or processing any Customer money through the Partner Payment Gateway, for handling any related inquiries or for any chargebacks relating to Bookings with Partner Suppliers;
18.5.8. the acts or omissions of any Third Party Supplier.
18.6. The Partner acknowledges and agrees that:
18.6.1. the Customer contract for the provision of a Tour and Experience is with the relevant Third Party Supplier or the Partner and their respective terms and conditions will apply to any claims by a Customer; and
18.6.2. Holibob has no liability for the provision of, or any contract for, a Tour and Experience.
18.7. If Holibob’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Partner, its agents, subcontractors, consultants, employees, a Partner Supplier or a Customer, Holibob shall not be liable for Losses sustained or incurred by any Customer or by the Partner that arise directly or indirectly from such prevention or delay.
18.8. Subject to clause 18.9, Holibob’s total liability arising under or in connection with the Agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise howsoever, shall in all circumstances be limited to the total amount of Fees paid to Holibob under the Agreement in the twelve (12) months preceding the claim.
18.9. Holibob’s total liability under any indemnity in the Agreement shall not exceed
Type | Total Liability |
|---|---|
Professional indemnity | £2,000,000 |
Cyber and Data | £1,000,000 |
18.10. The provisions of this clause shall survive expiry or termination of the Agreement.
19. Force Majeure
19.1. If a Party (Affected Party) is prevented, hindered or delayed in or from performing any of its obligations under the Agreement by a Force Majeure Event, the Affected Party shall not be in breach of the Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly
19.2. The Affected Party shall:
19.2.1. as soon as reasonably practicable after the start of the Force Majeure Event, notify the other Party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
19.2.2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
19.3. As soon as practicable following notification under the previous clause, the Parties shall consult with each other and use all reasonable endeavours in good faith to agree appropriate terms to mitigate the effects of the Force Majeure Event and facilitate continued performance of the Agreement.
19.4. If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 30 days, the Party not affected by the Force Majeure Event may terminate the Agreement by giving 15 Business Days’ written notice to the Affected Party.
20. Non-Solicitation
20.1. To protect the legitimate business interests of Holibob, the Partner covenants with Holibob that it shall not during the term of the agreement and for a period of twelve (12) months following its expiry or termination (howsoever occasioned):
20.1.1. employ, solicit or contract the services of any person who is or was employed or engaged by Holibob in any role requiring contact with the Partner in connection with the Services unless otherwise agreed in writing by Holibob.
20.1.2. except where the Switch Platform is being provided as a Service, have any business dealings with, receive Tours and Experiences or other similar travel services from or solicit, entice or attempt to entice away, a Third-Party Supplier.
21. Anti-Bribery and Anti-Slavery
21.1. Each Party shall at all times:
21.1.1. comply with all Applicable Laws relating to anti bribery and anti-corruption such as the UK Bribery Act 2010 (“Anti-Bribery Requirements”);
21.1.2. not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
21.1.3. have and shall maintain in place its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Anti Bribery Requirements and will enforce them where appropriate; and
21.1.4. promptly report to the other Party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of the Agreement.
21.2. Each Party shall ensure that any person associated with that Party who is associated with the Agreement also complies with the Anti Bribery Requirements.
21.3. For the purpose of this clause, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the UK Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
21.4. Each Party shall at all times:
21.4.1. comply with all Applicable Law relating to modern slavery and human trafficking including but not limited to the UK Modern Slavery Act 2015 (“Anti-Slavery Requirements”);
21.4.2. have and maintain reasonable due diligence, audit and reporting procedures for its own suppliers, permitted subcontractors and other participants in its supply chains, to ensure that there is no slavery or human trafficking in its supply chains; and
21.4.3. promptly report to the other Party any actual slavery or human trafficking in a supply chain which has a connection with the Agreement.
21.5. Each Party shall notify the other Party as soon as it becomes aware of any contravention of the Anti-Bribery Requirements or the Anti-Slavery Requirements set out in this clause.
21.6. Where one Party reasonably suspects that the other Party is or may be in material breach of its obligations under this clause, the other Party shall permit the non-breaching Party, and/or any person nominated by it for this purpose, to have such access on no less than 48 hours’ prior written notice to the other Party’s premises, personnel, systems, books and records as the non-breaching Party may reasonably require to verify the other Party’s compliance with this clause.
21.7. Breach of this clause shall be deemed an irremediable material breach for the purposes of clause 15 (Termination) of the Agreement.
21.8. The provisions of this clause shall survive termination of the Agreement.
22. Notices
22.1. Any notice given to a Party under or in connection with the Agreement shall be in writing and shall be (i) delivered by hand or by pre-paid first-class post or other next Business Day delivery service or (ii) sent by email, in each case at or to the address stated in the Agreement Details.
22.2. Any notice shall be deemed to have been received:
22.2.1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
22.2.2. if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
22.3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. Business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt. 22.4. This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
23. General
23.1. Waiver: No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
23.2. A waiver (which may be given subject to conditions) of any right or remedy provided under the Agreement or by law shall only be effective if it is in writing. It shall apply only to the party to whom it is addressed and for the specific circumstances for which it is given. It shall not prevent the party who has given the waiver from subsequently relying on the right or remedy in other circumstances
23.3. Rights and Remedies: Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
23.4. Severability: If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
23.5. Variation: A variation of the Agreement shall not be effective unless it is in writing and signed by the parties (or their authorised representatives).
23.6. Entire Agreement: The Agreement and any documents referred to in it constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of the Agreement.
23.7. Each of the Parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.
23.8. Assignment: The Partner shall not, without the prior written consent of Holibob, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement without the prior written consent of Holibob. Holibob may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
23.9. No Partnership or Agency: Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other except as expressly stated pursuant to the Agreement. Neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23.10. Third Party Rights: Except as expressly stated herein, the Agreement does not confer any rights on any person or party (other than the Parties to the agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
23.11. Counterparts: The Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. Transmission of the executed signature page of a counterpart of the Agreement by email (in PDF, JPEG or other agreed format) shall take effect as the transmission of an executed "wet-ink" counterpart of the Agreement.
23.12. No exclusivity: The Partner acknowledges that Holibob makes available the Services to different clients, including tour operators, travel agents and group operators, on a non-exclusive basis and nothing in the Agreement confers or is intended to confer any kind of exclusivity arrangement with the Partner.
24. Governing Law and Jurisdiction
24.1. The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the Governing Law.
24.2. Each Party irrevocably agrees that the Agreed Jurisdiction shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.