GENERAL DELIVERY TERMS
These general delivery terms (the "Terms") form an integral part of the hotel marketing services agreement (the "Suite Agreement" and together with the Terms, "Agreement") entered into between the Partner (as defined in the Suite Agreement) and Booking Suite B.V. (established in Amsterdam; "Booking Suite") (each a "Party" and collectively the "Parties").
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, save where the context otherwise requires or the Agreement otherwise provides, capitalized words and expressions shall have the meanings given to them in Appendix 1.
1.2 This Agreement is not intended, nor should anything herein or in any of the arrangements contemplated herein, be construed, to create a joint venture or the relationship of partners, partnership or principal and agent between the Parties. Neither Party shall act, or be construed to act, as the agent of the other.
2. USE OF THE SITE AND SERVICES
2.1 Content Prohibitions
2.1.1 The Partner agrees not to post, upload, publish, submit or transmit via or to the Site or Services any Content that: (1) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy/data protection or otherwise violates, or encourages any conduct that would violate, any applicable law, rule, statute, ordinance, court or agency decision or regulation (collectively, the "Laws"), (2) would give rise to civil liability, (3) is fraudulent, false, libelous, misleading or deceptive, (4) is defamatory, obscene, pornographic, sexual, vulgar or offensive links to an adult oriented, pornographic or otherwise sexually orientated service, (5) promotes sexually explicit materials, illegal activities, violence, discrimination (based on race, sex, religion, nationality, disability, sexual orientation, age or otherwise), bigotry, racism, hatred, harassment or harm against any individual or group (on the basis of age, color, national origin, race, religion, sex, sexual orientation, handicap or otherwise), or (6) is violent or threatening or promotes violence or actions that are threatening to any person or entity.
2.1.2 The Partner also agrees not to: (1) use, display, mirror or frame the Site, or any individual element within the Site or Services, including Booking Suite's name or any Booking Suite Content, (2) access, tamper with, or use non-public areas of the Site or Services, Booking Suite's computer systems, or the technical delivery systems of Booking Suite's providers, (4) attempt to probe, scan, or test the vulnerability of any Booking Suite system or network or breach any security or authentication measures, (5) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Booking Suite or any of Booking Suite's providers or any other third party (including another user), (6) attempt to access or search the Site or Booking Suite Content or download Booking Suite Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Booking Suite or other generally available third party web browsers, (7) send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation, (8) use any meta tags or other hidden text or metadata utilizing a Booking Suite Trademark or URL, (9) forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site or Services to send altered, deceptive or false source-identifying information, (10) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide or that is contained or displayed within the Site or via the Services, (11) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site or Services, (12) collect or store any Personal Information from other users of the Site or Services, (13) impersonate or misrepresent its affiliation with any person or entity, (14) access the Site behind proxy servers or URL cloaking techniques, or (15) encourage or enable any other party to do any of the foregoing.
2.2 Monitoring, investigation and remedies
2.2.3 The Partner acknowledges and agrees that Booking Suite has the right to investigate and prosecute violations of any of the above prohibitions, or of any of these Terms, to the fullest extent of the Laws. The Partner acknowledges that Booking Suite has no obligation to monitor the Partner's access to or use of the Site or to review or edit any Partner Content, but has the right to do so for the purpose of operating the Site, to ensure the Partner's compliance with these Terms, to comply with applicable Laws, including the order or requirement of a court, administrative agency or other governmental body or as it otherwise deems necessary or appropriate. Booking Suite reserves the right, at any time and without prior notice, to remove or disable access to any Partner Content including, but not limited to, such Content that Booking Suite, at its sole discretion, considers to be in violation of these Terms, applicable Laws, or otherwise harmful to the Site.
3.1 License granted by Booking Suite
3.1.1 Subject to the Partner's compliance with the terms and conditions of these Terms, Booking Suite grants the Partner a limited, revocable, non-exclusive, non-transferable and non-assignable right and license to view, download and print any Booking Suite Content solely for the personal and non-commercial purposes. The Partner has no right to sublicense the license rights granted in this section. The Partner will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site or Booking Suite Content, except as expressly permitted in these Terms. No licenses or rights are granted to the Partner by implication or otherwise under any intellectual property rights owned or controlled by Booking Suite or its licensors, except for the licenses and rights expressly granted in these Terms.
3.1.2 The Partner may use the Booking Suite Content under that license for its internal business purposes only and to the extent necessary for the Partner to access and use the applicable Services (i.e. those provided for free or those provided in connection with a Services Subscription).
3.2 License Granted by Partner
3.2.1 By making available any Partner Content on or through the Site or Services, the Partner hereby grants to Booking Suite a worldwide, non-exclusive, non-revocable, perpetual, transferable and royalty-free right and license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, transfer, publicly display, publicly perform, transmit, stream, broadcast, utilize and otherwise exploit such Partner Content to the extent necessary for us to perform the Services. The Partner also grants Booking Suite the a right and license to use, market, promote, display, include and utilize the Partner Content (including the Accommodation) (whether on the Site, through the Services or for online web-marketing (including pay-per click, banners and other online advertisements) and email marketing purposes) to and for the benefit of the Partner. Booking Suite runs the online and email marketing campaigns at its own costs and own discretion. Booking Suite does not claim any ownership rights in any Partner Content and nothing in these Terms will be deemed to restrict any rights that the Partner may have to use and exploit any Partner Content.
3.2.2 Booking Suite will not publish, publicly display or perform or otherwise make available to the general public any Partner Content outside the scope of the right and license set out in Clause 3.2.1 without the Partner's prior permission, which Partner agrees will not be unreasonably withheld, delayed or conditioned. If the Partner approves such use, the Partner shall give the same right and license to such Partner Content as set out in Clause 3.2.1. If the Partner does not approve such uses of the Partner Content, Booking Suite will still charge the Partner the applicable Services Fees, as described below.
3.3 Ownership and all rights reserved
3.3.1 Without limiting any other language in these Terms, the Partner acknowledges and agrees that the Site, Services, and Booking Suite Content are protected by copyright, trademark, data base rights and other Laws and that the Site, Services and Booking Suite Content (including all associated intellectual property rights) are the sole and exclusive property of Booking Suite and its licensors. The Partner further acknowledges and agrees that all Trademarks appearing on the Site, the Services or in the Booking Suite Content are owned by Booking Suite or the third-parties who provide them. The Partner will not remove, alter or obscure or claim ownership of any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services or Booking Suite Content. For the avoidance of doubt, as between the Partner and Booking Suite, the Partner owns any Partner Content.
3.3.2 The Partner agrees and acknowledges that reproducing, copying, publishing or distributing any Booking Suite Content on or of the Booking Suite Site or provided via the Services (including the Site itself) for any use or purpose not expressly permitted by these Terms is strictly prohibited without the express prior written permission of Booking Suite. Any rights not expressly granted herein are reserved by Booking Suite.
3.3.3 The Partner agrees not to specifically target the Booking brands (including Booking Suite and Booking Suite) through keyword purchases that use any intellectual property rights of Booking Suite or its affiliated group companies.
3.3.4 The Partner shall not (reverse /dis)assemble, (reverse)engineering or (de)compile (or otherwise attempt to derive the source code from) the Services (including features such as the Booking Button and Review Widget (including the relevant XML feed or integration) and the Partner shall not use the Services (including features such as the Booking Button and Review Widget (including the relevant XML feed) for any purpose other than in accordance with and in furtherance of this Agreement. This clause shall survive termination.
3.4 Partner responsibility
3.4.1 The Partner acknowledges and agrees that the Partner is solely responsible for all Content that the Partner make available through the Site or the Services. Accordingly, the Partner represents and warrants that: (1) the Partner is the sole and exclusive owner of all such Content or the Partner has all necessary rights, licenses, consents and releases that are necessary to grant to Booking Suite the rights and licenses set forth in these Terms, and (2) the Content, its posting, uploading, publication, submission or transmittal of the Content or Booking Suite's use of the Content (or any portion thereof) as set forth in these Terms on, through, in connection with or by means of the Site or the Services does not and will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or violate or result in the violation of any applicable Laws.
3.5 Parties responsibilities
3.5.1 Insofar the Partner accepts credit cards for payment, the Partner is required to comply, and to have its service providers comply on an ongoing basis, with the requirements, compliance criteria and validation processes as set forth in the Payment Card Industry ("PCI") Data Security Standard as promulgated from time to time by the major credit card companies.
3.5.2 The Partner acknowledges that it is responsible for the security of cardholder data it processes within the context of this Agreement and Booking Suite acknowledges that it is responsible for the security of cardholder data it processes within the context of this Agreement.
3.5.3 Booking Suite is not responsible for verification or authorization of credit cards.
4. CALCULATION FEES/COMMMISSION, DEPOSIT, INVOICES AND PAYMENT
4.1 Fees, Commission and Deposit
4.1.1 All fees as charged or due and payable under the Agreement (the "Fees") shall be set out or calculated in accordance with Suite Agreement. Payment shall be made in accordance with Clause 4.2. All Fees shall be non-refundable and non-cancellable. In respect of all Fees, the following applies:
(i) there will be no pro rata charges, (pro rata) refunds or credits for partial months, or for Services upgrades or downgrades. In the event of a Service upgrade of the Services, the relevant Fee(s) shall be due and payable as of the month in which the Services are upgraded. In the event of a downgrade of the Services, the relevant Fee(s) shall not be adjusted;
(ii) (if applicable) the relevant Fee(s) for the relevant Services ordered by the Partner shall not be due for the term of the Trial Period (as set out in the Booking Suite Agreement);
(iii) unless agreed otherwise by Parties (but always at the discretion of Booking Suite), the Fee(s) shall be paid and invoiced either (a) as an advance payment for the entire relevant Term, or (b) as a monthly advance payment for each month during the Term.
4.1.2 Commission payments shall be calculated as follows:
(a) For each reservation made on the Sites by an End User through the Booking Suite Web Engine ("BSWE"), the Partner shall pay Booking Suite a commission (the "Commission") calculated in accordance with Clause 4.1.3. Payment shall be made in accordance with Clause 4.2.
4.1.3 The aggregate Commission per reservation is equal to the multiple of (i) the number of nights stayed at the Accommodation by the End User, (ii) the booked rate per room per night (including VAT, sales taxes and such other applicable national, governmental, provincial, state, municipal or local taxes or levies) and such other extra's, fees and surcharges which are included in the offered rate at the time of booking of the room by an End User on the Sites (such as breakfasts, meals (half-board or full-board), bicycle rental, late check outs/early check in fees, extra person charges, resort fees, roll-away beds, theatre tickets, service fees, etc), (iii) the number of booked rooms by the End User, and (iv) the relevant Commission percentage set out in the Suite Agreement (plus VAT/taxes (if applicable)). For the avoidance of doubt, in the event of payment of the room price by the Guest to the Accommodation in accordance with Clause 4.4 (Booking.com Managed Payment Model), Booking.com shall calculate the Commission in the event of no-show or cancellation in accordance with Clause 4.4.8, in all other events Commission will be charged in the event of overbooking or a no-show (unless the Accommodation has notified Booking.com of the relevant no-show within 2 business days after the scheduled date of check out of the Guest) or a charged cancellation (cancellation in violation of the free cancellation policy of the Accommodation) and shall be calculated in accordance with the confirmed booking.
4.1.4 The Partner shall upon first request of Booking Suite pay a deposit which amount shall be equal to minimum the sum of the 3 highest invoices in the last 12 months or such other amount as determined by Booking Suite at its discretion (the "Deposit"). The Deposit will be held by Booking Suite as a security for performance of the (payment) obligations of the Partner under the Agreement. Upon termination of this Agreement, the Deposit, or any balance thereof after deducting Fees and Commission, shortfall payments and other costs due to Booking Suite will be repaid to the Partner within 30 days after settlement in full of the outstanding obligations and liabilities (including the payment of the due and/or outstanding Fees and Commission). Upon first request of Booking Suite, the Partner shall pay as further Deposit such additional amount as requested by Booking Suite if the Fees or outstanding Commission exceeds the Deposit or if the Partner frequently fails to pay the Fees or Commission if and when due. At any point during the term of the Agreement, Booking Suite will monitor the (payment) performance of the Partner and may decide to repay the Deposit to the Partner after review (used criteria at Booking Suite discretion).The amount of the Deposit shall in no way limit or cap the liability of the Partner under this Agreement. The Deposit shall not bear any interest.
4.2 Invoices and (late) payment
4.2.1 Booking Suite shall invoice the Partner in accordance with the terms of the Suite Agreement and invoice shall be sent to the Partner by mail, (e)fax, online or e-mail.
4.2.2 Payment of any invoice is due within 14 days after receipt of the invoice. All payments shall be made by means of Direct Debit, or in case this is not available in the banking system of the bank where the payment is made from, by wire transfer (to such bank account as identified by Booking Suite) or (subject to prior approval by Booking Suite) credit card. For the avoidance of doubt, other means of payment (such as by cheque or via "payment agencies") cannot be processed by Booking Suite and therefore will not be accepted. The Partner shall bear all costs as charged by the banks for the transfer of the funds.
4.2.3 The amounts invoiced shall be paid by the Partner in the relevant currency (and if applicable at the exchange rate) as specified in the invoice. Booking Suite may at its sole discretion prepare invoices either in a major currency (e.g. EUR/USD/GBP) or the relevant local currency of the Partner and subsequently convert the relevant final amount in the local currency or a major currency on the basis of the exchange rate of the last day of the relevant month for which the invoice is issued (and not on the day of checkout). The exchange rate used shall be the interbank rate (closing rate as per 4PM EST) as used or promulgated by major international financial banks or service companies from time to time selected by Booking Suite.
4.2.4 In the event of late payment of the invoice, Booking Suite is entitled to (i) charge statutory interest as set by the Dutch authorities and reasonable debt recovery costs, and/or (ii) suspend the Services, without a notice of default being required.
4.2.5 In the event of a dispute between Booking Suite and the Partner in respect of an invoice, any undisputed amount of the relevant invoice will be paid in accordance with the terms of this Agreement, notwithstanding the status or nature of the dispute.
4.3 Gross up payment
4.3.1 All payments to be made under the Agreement shall be made in cleared funds, without any deduction or set-off and free and clear of and without deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority. If the Partner is compelled to make any such deduction or withholding, it will pay to Booking Suite such additional amounts as are necessary to ensure receipt by Booking Suite of the full (net) amount as set out in the invoice which Booking Suite would have received but for the deduction. The Partner is responsible and liable for the payment and remittance of any taxes, levies, imports, duties, charges, fees and withholdings over and above the full (net) payment due from the Partner to Booking Suite.
4.3.2 The Partner is responsible for withholding and reporting relevant taxes (i.e. mentioned above in 4.4) applicable to the payments to Booking Suite according to the relevant tax regulations and the practices and requests of the tax authorities. The Partner shall bear and be responsible for the payment and remittance of the taxes applicable to the payments under the Agreement and the associated late payment interests and penalties imposed by the tax authority for failing to withhold and report any taxes applicable to the payments under the Agreement. If required, the Partner shall be solely responsible to negotiate and agree with the relevant tax authorities on the tax treatments of the payments under the Agreement. The Partner shall upon first request of Booking Suite provide Booking Suite with (photo/scanned-)copies of tax payment certificates/tax exemption certificates upon each remittance of the payments under the Agreement. The Partner represents and covenants that it is duly registered with all relevant tax authorities (including applicable statutory (local) revenue collection authorities) as a hotel or other accommodation provider.
5. WARRANTIES, DISCLAIMER AND LIMITATION OF LIABILITY
5.1.1 Each Party represents and warrants to the other Party that for the term of this Agreement:
(i) it has the full corporate power and authority to enter into and perform its obligations under this Agreement;
(ii) it has taken all corporate action required by it to authorise the execution and performance of this Agreement;
(iii) this Agreement constitutes legal valid and binding obligations of that Party in accordance with its terms, and
(iv) it shall comply with all applicable Laws of the jurisdiction where it is incorporated with respect to the products (to be) offered and/or services (to be) rendered by such Party.
5.1 The Partner represents and warrants to Booking Suite that for the term of this Agreement:
(i) the Partner has all necessary rights, power and authority to use, operate, own (as applicable), (sub)license and have Booking Suite make available on the Site (a) the Accommodation, and (b) the intellectual property rights in respect of, as set out or referred to in the information relating or regarding the Accommodation (whether used to, in or for the benefit of the Services or made available on the Site);
(ii) the Accommodation is owned or operated by or for the benefit of the Partner and the Partner holds and complies with all permits, licenses and other governmental authorisations and requirements necessary for conducting, carrying out and continuing its operations and business and making the Accommodation available on or through the Sites or Services (including for short term stay);
(iv) the Partner (including the Accommodation) and its (their) directors and (direct, indirect and ultimate (beneficial)) owners (and their directors) are not in any way connected to, part of, involved in or related to or under the control, management or ownership of:
(a) terrorists or terrorist organizations;
(b) parties / persons (i) listed as (special) designated nationals/entities or blocked person/entities, or (ii) otherwise subject to any applicable trade embargo, or financial, economic and trade sanctions, and
(c) parties / persons guilty of money laundering, bribery, fraud or corruption.
The Partner shall upon first request of Booking Suite fully cooperate and assist Booking Suite with (and disclose all reasonably requested information in respect of) the identification of the (ultimate) owner, manager and/or controller of the Partner and/or the Accommodation and promptly inform Booking Suite of any breach of the warranties set out above.
5.2.1 Except as otherwise expressly provided in this Agreement, neither Party makes any representation or warranty, express or implied, in connection with the subject matter of this Agreement and hereby disclaims any and all implied warranties, including all implied warranties of merchantability or fitness for a particular purpose regarding such subject matter.
5.2.2 The Site, the Services and Booking Suite Content (including Legal Documents) are provided on an "as is" and "as available" basis, without warranty of any kind, either express, statutory or implied. Furthermore, Booking Suite explicitly disclaims any (express, implied or statutory) warranties of merchantability, fitness for a particular purpose, quiet enjoyment or non-infringement, or any warranties arising out of course of dealing or usage of trade. Booking Suite makes no warranty that the Site, Services or Booking Suite content will (a) meet the Partner's requirements, (b) comply with applicable laws, or (c) be available on an uninterrupted, secure or error-free basis. Booking Suite makes no warranty regarding the quality of any products, services or Booking Suite content purchased or obtained through the Site or Services or the accuracy, timeliness, truthfulness, completeness or reliability of any content, including end/other users' content, obtained through the Site or Services. For clarity, no advice or information, whether oral or written, obtained from Booking Suite or through the Site, Services or Booking Suite Content will create any warranty not expressly made herein.
5.2.3 As part of its Services, Booking Suite may from time to time create, host, develop, manage, offer, make available, use or maintain legal documents that apply vis-à-vis end users/visitors of the Site or customers of the Partner (e.g. terms and conditions, privacy statement, (cancellation/no-show) policies, FAQs (collectively the "Legal Documents")) to or for the benefit of the Partner or that the Partner can use for its own products and services and on the Site. Booking Suite does not give any comfort, guarantee or warranty (and disclaims any responsibility and liability) that these Legal Documents (i) comply with all applicable laws, and (ii) are valid, binding and enforceable. The use of the Legal Documents is at the Partner's own risk and account and the Partner is strongly advised to seek (at its own costs) legal consultation and advice from its lawyer(s) in order to make sure that these legal documents comply with all applicable laws and are valid, binding and enforceable.
5.2.4 The Partner acknowledges and agrees that its access to and use of the Site and the Services is dependent upon access to telecommunications and Internet services. The Partner acknowledges the difficulties inherent to the use of the (mobile) Internet, communication and broadband, in particular, varying speeds and congestion in the (mobile) network, connections, systems and servers can cause interruptions, delays and difficulties in accessing, browsing, navigating or using the Site. Partner excludes any and all liability in respect of Booking Suite which is related to any (un-)planned or (un-)scheduled (wholly or partial) outage, downtime, interruption, breakdown or unavailability (whether for maintenance, upgrades, updates or otherwise) of the Site and/or the Services. Partner shall be solely and at its own costs responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Site and Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.
5.2.5 The Partner acknowledges and agrees that, to the maximum extent permitted by applicable Laws, the Partner accepts and assumes all risk, whether known or unknown to the Partner, arising out of the Partner's access to and use of the Site, Services and Booking Suite Content. Without limiting the foregoing, the Partner also acknowledges and agrees that Booking Suite will not be responsible or liable for, or incur any, claims, causes of action, suits, penalties, fines, losses, damages, costs or expenses (including reasonable attorney's fees) (collectively, the "Claims") arising out of or in connection with these Terms or from the Partner's access or use of, or inability to access or use, the Site, Services or Booking Suite Content for or arising out of the following: (1) personal or bodily injury or death or emotional distress; (2) interactions or meetings with other customers or users of the Site or Services or other persons with whom Partner communicate or interact as a result of the Partner's use of the Site or Services; (3) loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any telecommunications and Internet services (or the failure of such services) that Partner use to access or use the Site, Services or Booking Suite Content); and (4) any other Claims arising out of or relating to the Partner's acts or omissions or the acts or omissions of any third-party, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Booking Suite has been informed of the possibility of such Claims, even if a limited remedy set forth herein is found to have failed of its essential purpose.
5.2.6 Without limiting the foregoing, the Partner acknowledges and agrees that if Booking Suite is found liable for any of the foregoing Claims, or for any other Claims arising hereunder, including for its breach of these Terms, Booking Suite and any other person or entity involved in creating, producing, or delivering the any of the foregoing will under no circumstances be liable for any incidental, special, exemplary, punitive, moral or consequential damages or losses, including, without limitation, loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or loss of data, or the cost of acquiring substitute products or services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Booking Suite has been informed of the possibility of such Claims, even if a limited remedy set forth herein is found to have failed of its essential purpose.
5.2.7 Booking Suite disclaims and excludes any and all liability in respect of the Partner (including the Accommodation) which is related to any (temporary and/or partial) breakdown, outages, downtime, interruption or unavailability of the Site, the Services and/or the extranet.
6. INDEMNIFICATION AND LIABILITY
6.1 General indemnification
6.1.1 Each Party (the "Indemnifying Party") shall be liable towards, and compensate, indemnify and hold the other Party (the "Indemnified Party") harmless for and against any direct damages, losses (excluding any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or any special, indirect or consequential losses and/or damages), liabilities, obligations, costs, claims, claims of any kind, interest, penalties, legal proceedings and expenses (including, without limitation, reasonable attorneys’ fees and expenses) actually paid, suffered or incurred by the Indemnified Party pursuant to:
(i) a breach of this Agreement by the Indemnifying Party, or
(ii) any claim from any third party based on any (alleged) infringement of the third party's Intellectual Property Right by the Indemnifying Party.
6.2 Specific indemnity
6.2.1 The Partner agrees to fully defend, indemnify, and hold Booking Suite (including its affiliated companies), and any of their officers, directors, employees and agents (the "Booking Suite Indemnitees"), harmless from and against any Claims arising out of or in any way connected with:
(1) any agreements or understandings the Partner has with third-parties, including End Users, or the Partner's failure to comply with and observe the terms of such agreements or understandings (including overbooking, double charges);
(2) all claims made by End Users concerning inaccurate, erroneous or misleading information on the Sites;
(3) all claims made by End Users concerning or related to a stay in the accommodation of the Partner, overbooking, relocation or (partly) cancelled or wrong reservations or repayment, refund or charge back of the room price;
(4) all other claims from End Users which are wholly or partly attributable to or for the risk and account of the Partner (including its directors, employees, agents, representatives) (including claims related to (lack of) services provided or goods/products offered by the Partner) or which arise due to tort, fraud, wilful misconduct, negligence or breach of contract by or attributable to the Partner (including its directors, employees, agents, representatives) in respect of an End User or its property; and
(5) all claims against Booking Suite Indemnitees in relation to or as a result of the failure of the Partner to (a) properly register with relevant tax authorities, or (b) pay, collect, remit or withhold any applicable taxes, fees and (sur)charges levied or based on the services or other charges hereunder in the relevant jurisdiction (including room price and commission payments).
6.2 Maximum liability
6.2.1 Save as otherwise provided for in this Agreement, the maximum liability of a Party for all claims made against such party by the other Party under or in connection with this Agreement in a year shall not exceed the aggregate commission received or paid by such Party in the preceding year or EUR 10,000 (whichever is higher), unless in the event of fraud or wilful misconduct of Indemnifying Party, in which event the limitation of liability is not applicable for such liable party. Parties agree and acknowledge that none of the limitations of liability set out in Clause 6 shall apply to any of the indemnifications in respect of third party claims or third party liabilities.
6.3 Third Party Claim
In the event of a third party claim, the indemnified Party shall promptly notify the other Party and Parties shall act in good faith and use their commercially reasonable efforts to consult, cooperate and assist each other in the defence and/or settlement of such claim, whereas the indemnifying Party shall be entitled to take over a claim and assume the defence and settlement (in consultation and agreement with the indemnified Party and with due observance of both Parties' interests), and neither Party shall make any admission, file any papers, consent to the entry of any judgment or enter into any compromise or settlement without the prior written consent of the other Party (which shall not unreasonably be withheld, delayed or conditioned).
6.4 Waiver of consequential damages etc.
In no event shall any Party be liable to the other Party for any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or any indirect, special, punitive, incidental or consequential damages or losses whether such damages are (alleged as) a result of a breach of contract, tort or otherwise. All such damages and losses are hereby expressly waived and disclaimed.
7. TERM, TERMINATION AND SUSPENSION
7.1 This Agreement shall be effective upon acceptance of the Partner by Booking Suite and shall continue for the term as set out in the Suite Agreement (the "Initial Term"), unless earlier terminated or extended in accordance with the provisions of this Agreement. Upon expiration of the Initial Term or in the absence of an Initial Term, this Agreement shall be entered into for indefinite period of time. After the Initial Term (if applicable), each Party may terminate this Agreement at any time and for any reason with due observance of a notice period of 14 days, unless indicated otherwise in the Agreement. Unless agreed otherwise by Parties, in the event that Parties have agreed to a Trial Period, this Agreement shall automatically continue upon expiration of the Trial Period for additional terms of 12 months each or the Initial Term (if applicable) (each an "Additional Term"), unless the Partner gives notice of termination at any time during the Trial Period or 14 days before expiration of the relevant Additional Terms, in which event the Agreement shall expire and terminate at the end of the Additional Term.
7.2 Each Party may terminate this Agreement or suspend this Agreement in respect of the other Party, with immediate effect and without a notice of default being required in case of:
(a) a material breach by the other Party of any term of this Agreement or any other agreement entered into between the Partner and any affiliated group company of Booking Suite, or
(b) (filing of a request for) bankruptcy or suspension of payment (or similar action) in respect of the other Party.
7.3 In the event of termination or expiration of this Agreement, the following clauses shall survive termination: 3.3, 5.2, 6, 8, 9.1 and 10 (and such other clauses that by nature survive termination).
8.1 Parties understand and agree that in the performance of this Agreement, each Party may have access to or may be exposed to, directly or indirectly, confidential information of the other party (the "Confidential Information"). Confidential Information includes end user data, transaction, traffic and usage volume, marketing, financial and business plans, technical, software and operational information and the terms of this Agreement. All Confidential Information shall be treated as private and confidential and not disclosed to or used to or for the benefit of any (third) party.
8.2 Each Party agrees that: (a) all Confidential Information shall remain the exclusive property and ownership of the disclosing party, and the receiving party shall not use it for any purpose, except in furtherance of this Agreement, (b) it shall use prudent methods to ensure its employees, officers and agents (the "Permitted Persons") maintain the security of the Confidential Information, (c) it shall ensure that Permitted Persons do not (i) copy, publish, or divulge the Confidential Information to any third party, or (ii) use or store it in an unprotected retrieval system or data base (other than pursuant to the terms hereof), and (d) it shall return or destroy all ((hard and soft) copies of) Confidential Information upon written request of the other Party.
8.3 Notwithstanding the foregoing, (a) Confidential Information shall not include any information to the extent it (i) is or becomes part of the public domain through no act or omission on the part of the receiving party, (ii) was possessed by the receiving party prior to the date of this Agreement, (iii) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto, or (iv) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, and (b) nothing in this Agreement shall prevent, limit or restrict a Party from disclosing this Agreement (including the any general information, or technical, operational, performance and financial data (but excluding any end user data)) in confidence to an affiliated (group) company. The Partner explicitly agrees and acknowledges that its (contact) details (including telephone and email address) may be shared with and disclosed to Booking Suite and Booking Suite may with use these contact details to contact, solicit or entice the custom of the Partner.
8.4 Parties shall use commercially reasonable efforts to safeguard the confidentiality and privacy of End User Data and to protect it from unauthorized use or release. Each Party agrees to comply with all applicable (data and privacy) laws, rules and regulations of the jurisdiction where such Party is incorporated (including (if applicable) Directives 95/46/EC and 2002/58/EC (as amended) on the processing of personal data and the protection of privacy).
9.1 All notices and communications must be in English, in writing, and sent by email, facsimile or nationally recognized overnight air courier to the email address, email or facsimile number as identified by the relevant Party or the address set out in this Agreement.
If to Booking Suite: If to the Partner:
Booking Suite B.V.
Attn. Director Booking Suite
1017 CE Amsterdam
Email: [[__]] See Suite Agreement
9.2 Each Party shall bear its own costs and expenses in connection with the entering into, execution and performance under this Agreement (including the integration and connection).
9.3 Save as set out otherwise in this Agreement, neither party shall be entitled to assign, transfer, encumber any of its rights and/or the obligations under this Agreement without the prior written consent of the other party. This Agreement is concluded for the benefit of the Parties and their respective successors and permitted assigns, and nothing herein is intended to or shall implicitly confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement, except to the extent explicitly stated otherwise in this Agreement. To the extent required, the Partner agrees and acknowledges that Booking Suite may at all times without prior approval or notice assign, transfer, novate, encumber and set over its claim under the invoices (including invoicing and debt collection) to an affiliated group company of Booking Suite (including Booking.com B.V.) or a debt collecting agency or request an affiliated group company of Booking Suite to invoice and collect the debt for and on behalf of Booking Suite.
9.4 If any provision of this Agreement is or becomes invalid or non-binding, the Parties shall remain bound by all other provisions hereof. In that event, the Parties shall replace the invalid or non-binding provision by provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
9.5 The original English version of this Agreement may have been translated into other languages. The translated version of the English Terms is a courtesy and office translation only and the Partner cannot derive any rights from the translated version. In the event of a dispute about the contents or interpretation of these terms and conditions of this Agreement or in the event of a conflict, ambiguity, inconsistency or discrepancy between the English version and any other language version of these Terms, the English language version shall prevail, apply and be binding and conclusive. The English version shall be used in legal proceedings. The English version shall be sent to you upon written request.
9.6 In respect of (or as an award for) the execution, delivery, sealing, registration, filing of, and/or the execution, performance or delivery under or pursuant to, the Agreement, the Partner (including its employees, directors, officers, agents or other representatives) shall (i) not directly or indirectly (a) offer, promise or give to any third party (including any governmental official or political party('s official, representative or candidate)), or (b) seek, accept or get promised for itself or for another party, any gift, payment, reward, consideration or benefit of any kind which would or could be construed as bribery or an illegal or corrupt practice, and (ii) comply with all applicable laws governing anti-bribery and corrupt gifts and practices (including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act).
9.7 The Agreement may be entered into online or by way of executing a separate counterpart or by pdf or fax copy, each of which (copies) shall be deemed an original, valid and binding. The Agreement only enters into force and effect upon written confirmation of acceptance and approval of the Partner by Booking Suite. The Partner agrees, acknowledges and accepts the terms and conditions of this Agreement. The Agreement does not need any chop or seal to make it valid, binding and enforceable.
10. GOVERNING LAW AND JURISDICTION
10.1 This Agreement shall be exclusively governed by and construed in accordance with the laws of the Netherlands. Any disputes arising out or in connection with this Agreement shall exclusively be submitted to and dealt with by the competent court in Amsterdam, the Netherlands.
10.2 Parties agree and acknowledge that notwithstanding this Clause 10.1, nothing in this Agreement shall prevent or limit Booking Suite in its right to bring or initiate any action or proceeding or seek interim injunctive relief or (specific) performance before or in any competent courts where the Partner is established or registered under the laws of the relevant jurisdiction where the Partner is established or registered and for this purpose, the Partner waives its right to claim any other jurisdiction or applicable law to which it might have a right.
APPENDIX 1 Definitions
"Accommodation" means the relevant property (directly or indirectly) controlled, owned, managed or operated by or for the benefit of the Partner for or in which respect the Services are made available.
"Booking Suite Content" means the Site, the Services, and any Content that Booking Suite makes available through the Site or Services, including any Content (sub)licensed by a third party, but excluding Customer Content. For clarity, Content includes any digital marketing Content Booking Suite provides to Customers hereunder, as well as the overall "look and feel" or compilation of any Customer Site that contains or is created using Booking Suite Content.
"Content" means text, graphics, images, music, software, audio, video, information or other works of authorship.
"End User" means any end user or customer of the Partner Site.
"End User Data" means information that we collect from End Users on a Partner's behalf and may include Personal Information.
"Partner" for the purpose of this Agreement means any person who completes Booking Suite's registration process, as described under the "Becoming a Customer" and either purchases the Services or receives the Services (whether paid or free of charge).
"Partner Content" means Content that a Partner posts, uploads, publishes, submits or transmits to be made available through the Site or Services, excluding End User Data, as part of that Partner's use of the Services.
"Partner Site" means one or more websites or other Partner on-line or mobile websites or apps that Booking Suite may design, host, develop or otherwise makes the Services (directly or indirectly) available on.
"Personal Information" means information that is capable of identifying, directly or indirectly, a natural individual (including, without limitation, first initial and last name, email address, social security number and payment card information).
"Services" means the services as from time to time rendered or made available by Booking Suite under or pursuant to this Agreement.
"Site" means any websites or on-line or mobile websites or apps launched, managed, maintained or operated by or on behalf of Booking Suite.
"Term" means the Initial Term, each 12 months period after the Initial Term or an Additional Term.
"Trademark" means any trademark, service mark, trade name, logo, tagline or similar designator of source, origin or affiliation of goods and services.