Terms and Conditions

1. DEFINITIONS AND INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in these Conditions:

Booking: a booking for the Services made through the Platform by a Customer;

Booking Price: shall have the meaning set out in clause 4.2;

Business Day: a day (other than a Saturday, Sunday or public holiday in England) when banks in London are open for business;

Commencement Date: shall have the meaning set out in paragraph 2 of the Term Sheet;

Commission: shall have the meaning set out in clause 10.1;

Conditions: the terms and conditions set out in this document, as amended from time to time in accordance with clause 17.2;

Contract: the contract between TC and the Supplier for the promotion and sale of the Services by TC on behalf of the Supplier, which shall comprise the Term Sheet and the Conditions;

Control: the ability to direct the affairs of another person, whether by virtue of the ownership of shares, contract or otherwise;

Customer: a customer of TC who holds an account on the Website through which Bookings can be made on the Platform;

Insurance: insurance policies of the type and in the amount set out in paragraph 6 of the Term Sheet;

Insurance Documentation: all relevant documentation relating to the Insurance, including a policy certificate and a receipt of payment of the current premium for such Insurance;

Intellectual Property Rights: patents, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

Gross Booking Price: the Gross Booking Price is the total price charged from booking of the services.

Platform: the booking platform hosted on the Website through which Customers can make Bookings for the Services;

Required Documentation: the documentation listed in paragraph 5 of the Term Sheet;

Services: those services detailed in paragraph 3 of the Term Sheet;

Supplier Documents: shall have the meaning set out in clause 6.1(c)(iii);

Supplier IPR: shall have the meaning set out in clause 11.2;

Term: the term of the Contract, as set out in paragraph 2 of the Term Sheet;

Term Sheet: the term sheet, identified as such, attached to the front of these Conditions;

Website: the website at www.TripCenter.NET

1.2 Words in the singular shall include the plural and vice versa.

1.3 A reference to any party shall include that party’s personal representatives, successors or permitted assigns.

1.4 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.5 A reference to writing or written includes fax and e-mail.

2. APPOINTMENT

2.1 The Supplier hereby appoints TC as its non-exclusive agent to promote and sell the Services on behalf of the Supplier on the terms of the Contract.

2.2 TC shall promote and sell the Services on behalf of the Supplier through the Platform.

2.3 It is hereby agreed and acknowledged that:

(a) the Supplier can promote, market and sell the Services other than through TC and the Platform, subject always to clause 6.3; and

(b) nothing in the Contract shall prohibit or restrict TC from promoting, marketing or selling any services similar to the Services through the Platform or otherwise.

3. THE PLATFORM

Whilst TC will use its reasonable endeavours to ensure that the Platform remains online and accessible at all times, it does not guarantee that the Website and the Platform, or any content on it, will always be available or be uninterrupted.

4. THE SERVICES

4.1 TC shall promote and sell the Services through the Platform.

4.2 The Services shall be promoted and sold at the prices set out in the Supplier’s price list issued from time to time (the “Booking Price”). A copy of the Supplier’s current price list shall be uploaded to the Platform on or prior to the Commencement Date. The Supplier shall give TC not less than 30 days’ notice of any changes to any Booking Price and TC shall upload such updated Booking Prices to the Platform. If the Supplier fails to give the requisite notice to TC, TC
shall not be obliged to upload such updated Booking Prices until 30 days from the date of receipt of the same and shall not be responsible for any Bookings made at the earlier Booking Price prior to such date.

4.3 No changes to any Booking Price shall have retrospective effect and the price available on the Platform at the time a Booking is made shall be the applicable price for the Booking, unless otherwise expressly agreed between TC and the Supplier.

5. TC’S OBLIGATIONS

5.1 Except as authorised by the Supplier, TC shall not act in a way which will incur any liabilities on behalf of the Supplier.

5.2 TC shall notify the Supplier of all Bookings made through the Platform and any complaints or enquiries made in respect of the Services.

5.3 TC shall use its reasonable endeavours to seek to collect any debts owing to the Supplier in respect of the Services or to assist the Supplier, at the Supplier’s cost, in taking such action in respect of such debts, provided always that TC shall not have any liability whatsoever in respect of any outstanding debts owed to the Supplier in respect of the Services, other than its obligations pursuant to clause 9.2.

6. THE SUPPLIER’S OBLIGATIONS

6.1 The Supplier shall:
(a) provide the Services with reasonable skill and care and in accordance with all times and schedules notified to TC and/or the Customer in respect of the Services;

(b) allocate sufficient resources (including personnel) to the provision of the Services to enable it to comply with its obligation under clause 6.1(a);

(c) on or prior to the Commencement Date provide to TC a copy of:

(i) its current list of Booking Prices for the Services;

(ii) any literature or other documentation and information to be uploaded to the Platform (“Supplier Documents”) in respect of the Services;

(iii) its current Insurance Documentation; and

(iv) any other Relevant Documentation;

(d) where a Supplier to Guide.NET or Attraction.NET, give TC not less than 30 days’ written notice of any proposed change to its current list of Booking Prices (any such changes to be approved by TC prior to being uploaded to the Platform);

(e) promptly and efficiently deal with any complaint, dispute or enquiry relating to the Services raised by a Customer and to notify TC of the progress and outcome of any such complaint, dispute or enquiry;

(f) maintain the Insurance for the duration of the Contract and for not less than 24 months after termination of the Contract and provide TC with updated Insurance Documentation or any other Relevant Documentation within 5 Business Days of revised or updated documentation being received by the Supplier; and

(g) notify TC immediately of any event or action which has or is likely to effect the validity of any of the Insurance Documentation or Relevant Documentation.

6.2 The Supplier shall indemnify TC against any and all liabilities which TC may incur:

(a) as a result of acting with reasonable skill and care within the scope of its authority under the Contract as agent for the Supplier; or

(b) any claim made by a Customer or any other third party against TC in respect of any damage to property, death or personal injury arising from the provision of the Services by the Supplier, including any director, employee, agent, sub-contractor or other representative of the Supplier, relating to the Services and any costs, claims, demands or expenses arising out of or in connection with that liability, except to the extent that the liability arises as a direct result of the action or omission of TC.

6.3 The Supplier shall not, notwithstanding any other provision in the Contract, accept any bookings for any Services, or any services substantially similar to the Services which are available through the Platform, from any Customers other than through the Platform.

7. SUPPLIER DOCUMENTATION

7.1 All Supplier Documentation shall be sent to TC to be approved prior to being uploaded to the Platform.

7.2 TC shall approve or reject any Supplier Documentation sent to it within 30 days of receipt from the Supplier.

7.3 If TC rejects the Supplier Documentation, it shall provide the Supplier with reasons for the rejection and guidance on how such Supplier Documentation shall be amended.

8. WARRANTIES

8.1 The Supplier warrants that:

(a) it has in place and shall maintain during the Term the Insurance;

(b) all copies of Insurance Documentation and other Relevant Documentation are true copies of the originals documents issued by the relevant insurance company and / or relevant authority;

(c) it owns all the Intellectual Property Rights in the Supplier IPR and any other trademarks, logos, literature or other documentation provided by the Supplier to TC in respect of the Services;

(d) if applicable, all vehicles used in relation to the supply of the Services (if applicable) are of a sufficient standard and comply with all laws and regulations in the United Kingdom and in any other country in which the Services are provided; and

(e) in relation to the provision of the Services, it complies with all laws and regulations in the United Kingdom and in all countries in which the Services are provided.

9. TRANSFER OF FUNDS

9.1 TC shall collect and hold as trustee in a separate bank account all monies due to the Supplier in respect of all sales completed through the Platform.

9.2 Subject to the payment of Commission and where there is no dispute arising pursuant to clause 10, TC shall transfer to the Supplier all monies received by TC in respect of Bookings within 7 business days of the Services the subject of such Booking being completed by the Supplier.

9.3 The Supplier hereby authorises TC to deduct from the monies held by TC any refunds or compensation due and payable to any Customers in respect of the Services provided by the Supplier, provided always that such refund and/or compensation has been agreed by the Supplier acting reasonably.

9.4 Each party shall keep separate accounts and records giving correct and adequate details of all enquiries received and transactions conducted by TC on the Supplier’s behalf and shall permit the duly appointed representatives of the other party at all reasonable times and on reasonable notice to inspect all such accounts and records.

10. COMMISSION & PAYMENT

10.1 The Supplier shall pay to TC a commission equal to the percentage set out in paragraph 4 of the Term Sheet (“Commission”).

10.2 Commission shall become due to TC on the payment terms set out in paragraph 4 of the Term Sheet.

10.3 The Supplier hereby authorises TC to deduct from monies received by TC (pursuant to clause 9.1) an amount equal to any Commission owing to TC by the Supplier in respect of the Services for which the monies have been received.

10.4 In the event that a Customer pays a proportion of the Booking Price as a deposit, TC shall be entitled to deduct from such monies, an equivalent proportion of the Commission in respect of such Services.

10.5 Where the relevant sales contract provides for payment of the Booking Price by instalments, a proportionate part of the Commission shall become due to TC as soon as such instalments are received, that proportion being equivalent to the proportion which such instalments bear to the total contract price.

10.6 Applicable VAT on commission:

(a) Suppliers belonging to United Kingdom: VAT at prevailing UK rate shall be charged on the commission payable to TC.

(b) Suppliers belonging to EU VAT area: Commission shall be subject to reverse charge VAT which the supplier shall be able to treat per VAT rules of the country in which supplier is based. They will be required to provide VAT registration number.

(c) Suppliers belonging to rest of the world: Commission shall be zero rated and hence no VAT/sales tax shall be charged.

10.7 If any dispute arises as to the amount of Commission payable to TC, the same shall be referred to TC’s accountants / auditors for settlement and their certificate shall be final and binding on both parties.

10.8 Any service & quality dispute arising due to the Supplier’s provision of service must be lodged by the Customer with TC within 5 business days of the end of the disputed service.

10.9 For the purposes of calculating the amount of Commission due to TC, TC shall provide to the Supplier within 10 Business Days of the end of each calendar month a report showing the aggregate Booking Prices in respect of all Services sold through the Platform, together with details of the Commission owed in respect of such Bookings.

10.10 Commission shall be payable to TC on any booking for the provision of services by the Supplier which is accepted by the Supplier in breach of clause

6.3.

11. INTELLECTUAL PROPERTY RIGHTS

11.1 All Intellectual Property Rights in the Platform and the website and used on or in relation to the promotion or sale of the Services through the Platform (other than those in the Supplier Documentation) and the goodwill connected with that are TC’s property and nothing in this Contract shall be deemed to transfer any rights whatsoever in such Intellectual Property Rights to the Supplier or anyone else.

11.2 All Intellectual Property Rights in the Supplier Documentation and the goodwill connected with them are the Supplier’s property (“Supplier IPR”).

11.3 The Supplier hereby grants to TC a licence to use the Supplier IPR in relation to the promotion and sale of the Services through the Platform.

12. LIMITATION OF LIABILITY

12.1 Nothing in the Contract shall limit or exclude either party’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b) fraud or fraudulent misrepresentation or wilful default; and

(c) any matter in respect of which it would be unlawful for such party to exclude or restrict liability.

12.2 Subject to clause 12.1:

(a) TC shall under no circumstances whatsoever be liable to the Supplier, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:

(i) any loss of profit, revenue, or anticipated savings; or

(ii) any indirect, special or consequential losses; and

(b) TC’s total liability to the Supplier in respect of all other loss or damage arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not (unless otherwise agreed in writing between the parties) exceed the aggregate Commission paid by the Supplier to TC in the year immediately preceding the breach (or, if in the first year, the period from the Commencement Date to the date of the breach).

13. TERMINATION

13.1 The Contract shall take effect on the Commencement Date and, subject to clause 13.2, shall continue in force for the Term.

13.2 Without affecting any other rights or remedies to which it may be entitled, either party may give notice in writing to the other terminating the Contract immediately if:

(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default for more than 30 days;

(b) the other party commits a material breach of any term of the Contract and (if that breach is remediable) fails to remedy that breach within 30 days of that party being required in writing to do so;

(c) the other party repeatedly breaches any of the terms of the Contract in a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;

(d) an order is made or a resolution is passed for the winding up of the other party, or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or such an administrator is appointed, or a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court or a creditor to appoint a receiver or manager or which entitle a court to make a winding-up order, or the other party takes or suffers any similar or analogous action in consequence of debt, or an arrangement or composition is made by the other party with its creditors or an application to a court for protection from its creditors is made by the other party;

(e) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;

(f) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(d) to (f) (inclusive); or

(g) there is a change of Control of the other party.

13.3 TC may terminate the Contract in the event that the Supplier:

(a) fails to provide the Insurance Documentation and / or the Relevant Documentation in accordance with clauses 6.1(c) and (f);

(b) fails to provide any notification required under clause 6.1(g);

(c) is found to be in breach of, or it (including any director, employee, agent or subcontractor) does or fails to do anything the result of which impacts the validity of the Insurance Documentation and / or Relevant Documentation;

(d) is in breach of any of the warranties set out in clause 8.1.

14. CONSEQUENCES OF TERMINATION

14.1 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

14.2 On termination of the Contract TC shall cease to promote, market, advertise or sell the Services and shall cease to describe itself as the agent of the Supplier.

14.3 The licence granted pursuant to clause 11.3 shall terminate on termination of the Contract.

14.4 Any Bookings which are due to be completed after the date of termination of the Contract shall continue to be supplied by the Supplier, unless otherwise notified by TC. Any payments in respect of such Bookings shall be dealt with in accordance with clause 9 and all Commission in respect of such Bookings shall be paid in the ordinary course in accordance with clause 10.

14.5 On termination of the Contract the following clauses shall continue in force:

(a) 6.1(f);

(b) 6.2;

(c) 9;

(d) 10;

(e) 12;

(f) 15;

(g) 16;

(h) 18; and

(i) 19.

15. CONFIDENTIALITY

15.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as provided by clause 15.2.

15.2 Each party may disclose the other party’s confidential information:

(a) to those of its employees, officers, representatives or advisers who need to know such information for the purpose of carrying out the party’s obligations under the Contract. 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 15; and

(b) as may be required by law, court order or any governmental or regulatory authority.

15.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.

16. FORCE MAJEURE

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 3 months or more, either party may terminate the Contract by giving 28 days’ written notice to the affected party.

17. GENERAL

17.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

17.2 No amendment or variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17.3 The Supplier shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract, without the prior written consent of TC.

17.4 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

17.5 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to
or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

17.6 A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 (or any other applicable legislation) to enforce any term of the Contract.

17.7 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

17.8 If there is an inconsistency between any of the provisions in these Conditions and the Term Sheet, the provisions in the Term Sheet shall prevail.

17.9 The Contract is drafted in the English language. If the Contract is translated into any other language, the English language text shall prevail.

18. NOTICES

18.1 Any notice given under or in connection with the Contract shall be in the English language.

18.2 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office.

18.3 Any notice or communication shall be deemed to have been received:

(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or

(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.

18.4 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

19. GOVERNING LAW AND JURISDICTION

The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any such dispute or claim.