EAN TRAVEL PRODUCTS – TERMS OF USE

In these Terms and Conditions of Use (“Terms of Use”), the term "Affiliate" refers to any travel agent and/or any representative of a travel agent accessing the travel products made available from time to time by Travelscape LLC or VacationSpot, SL (the “EAN Companies”) under the [name/brand/label e.g. Travelnow/Travelscape/EAN] (“EAN Travel Products”) in the MedHotels platform owned by Hotels4u.com Limited (“H4U”) (the “Platform”).

Please read these Terms of Use carefully. By undertaking a booking of an EAN Travel Product, Affiliate represents to EAN.com, LP, a Delaware limited partnership (“EAN”) that:

  • Affiliate’s representative has read and understood these Terms of Use on behalf of Affiliate;
  • Affiliate agrees to be bound by these Terms of Use without modification in relation to its access to EAN Travel Products in the Platform; and
  • Affiliate’s representative entering into the agreement created by acceptance of these Terms of Use has the power, capacity and authority to enter into these Terms of Use and to bind the Affiliate.

Affiliate hereby agrees to waive any rights to challenge the validity or enforceability of these Terms of Use on the grounds that the agreement created by acceptance of these Terms of Use was made in electronic form instead of by paper and/or signed or sealed. These Terms of Use can be downloaded or accessed at [insert link] and the Affiliate is recommended to print off and keep a copy for its records.

1 Affiliate Marketing During the Term, Affiliate shall, where it deems it suitable actively market and promote the EAN Travel Products to its customers (“Customers”).

2 Access to the EAN Travel Products Affiliate shall access and book the EAN Travel Products in a manner consistent with the guidelines provided by EAN and/or H4U from time to time, a current version of which are contained in Annex 1 – Guidelines. Affiliate shall access EAN Travel Products and input Customer data in the Platform solely for the purposes of booking travel services on behalf of Customers. Affiliate shall ensure that the Customer data and any other information submitted to the Platform is complete and accurate.   

3 Customer Contracts Prior to the completion of a transaction for an EAN Travel Product (a “Transaction”), Affiliate shall:

a. make clear to Customers that the relevant EAN Company or the applicable travel service provider provides the travel service directly to the Customer and shall not display or make any statement which expressly or by implication contradicts this proposition;

b. communicate to Customer and obtain evidence that the Customer has read and accepts the terms and conditions, the Privacy Policy, and any other terms and conditions applicable to such Transaction provided by EAN and/or H4U (“Terms and Conditions”) – Affiliate may do this by incorporating the Terms and Conditions into its own materials which it provides to the Customer; and

c. communicate fully and accurately to the Customer any limitations or restrictions relating to the relevant travel services including, without limitation, whether cancellations or changes are permitted and the consequences of same. Affiliate will be solely liable for any variation between the cancellation policies provided to Affiliate by EAN and/or H4U and those that are communicated by Affiliate to Customer. 

Affiliate undertakes not to make any verbal or written assurances to a Customer which are additional to or contradict these Terms of Use or EAN Travel Products terms and conditions, including without limitation by promising that any special requests will be met. Affiliate shall be solely responsible and liable in respect of any representations or special request made or confirmed to the Customer without EAN's prior written authorisation and approval.

4 Customer Communications and Complaints

a. Affiliate shall within 24 hours of receipt: (i) provide to Customer, without modification or deletion, all information received from EAN and/or H4U relating to a Transaction; and (ii) provide to EAN and/or H4U without modification or deletion all communications relating to a Transaction (e.g. further booking requests and other customer service inquiries) or complaints (including any complaint to Trading Standards or any other regulatory trade body) received from Customer.

b. Affiliate shall notify EAN and/or H4U within three (3) days of Affiliate's receipt of any Customer formal complaint, claim or action regarding a Transaction. Affiliate acknowledges and agrees that EAN shall have the right to attempt to settle any such formal complaint, claim or action directly with the Customer. If EAN attempts such a settlement Affiliate shall provide EAN with reasonable information and assistance, at EAN's expense, to help EAN to reach settlement and Affiliate shall refrain from taking any other action in respect of the relevant formal complaint, claim or action unless required to do so by law.

5 Customer Care

6 Compliance with Laws. Affiliate shall comply with all applicable laws in force from time to time relevant to the performance of its obligations under these Terms of Use including, without limitation, any legislation relating to the licensing of travel agents.

7 Affiliate Booking Fee.  If the Affiliate includes a booking fee (“Affiliate Booking Fee”) to the total amount charged to the customer, it shall ensure a) the Affiliate Booking Fee is not aggregated into the room rates, taxes, or service fees provided by EAN, b) the Affiliate includes the following text in its booking terms and conditions in respect to EAN Travel Products: “The total price may include an additional booking fee from Affiliate”, and c) the Affiliate does not include the Booking Fee in any supplier selection algorithm nor sort order logic. At all times, Affiliate shall ensure that the final booking price for an EAN Travel Product is equal to the rate provided to Affiliate by EAN for such EAN Travel Product.

B.  COMPENSATION 

1 Payments. Affiliate hereby acknowledges that no monies, expenses or money’s worth shall be due from EAN or its Corporate Affiliates (and their respective employees, directors and representatives) to Affiliate whatsoever. Affiliate’s sole recourse for any payment or compensation as a result of any Transactions shall be against the provider of the Platform. EAN shall have no liability for any amounts due to Affiliate from the provider of the Platform. 

2 Consideration. Affiliate hereby acknowledges the provision of the EAN Travel Products by EAN under these Terms of Use as sufficient consideration for Affiliate agreeing to the obligations imposed by these Terms of Use.

C.  PROHIBITED ACTIVITIES

1 Prohibited Activities. EAN and Affiliate each undertake that during the Term of these Terms of Use, it will not: (a) send unsolicited bulk e-mail or engage in other unethical or illegal marketing activities; (b) associate the EAN Travel Products with material or opinions that: (i) are illegal or discriminatory; (ii) promote or incite violence, hatred or an illegal activity; or (iii) are capable of interpretation as discriminatory of or promoting such views; or (c) mislead or misrepresent to consumers as to the origin, affiliation or nature of its websites, products or services. Affiliate will not allow and will take reasonable steps to prevent any direct or indirect extraction, repurposing and/or aggregation of EAN Travel Product data made available to Affiliate under these Terms of Use (e.g. inclusion of EAN Travel Product data in consolidated third party search results) without the prior written consent of EAN. Affiliate will not, without written consent from EAN or its Corporate Affiliates, use, publish or display any data, materials, trade names, trademarks, service marks, logos or other similar indicia of identity or source or other content from any website owned or operated by EAN or its Corporate Affiliates.

2 Predatory Advertising. Affiliate will not use any predatory advertising methods. Predatory advertising means any method that creates or overlays links or banners on websites, mobile devices, social media or any other channel which allows access to the EAN Travel Product (each a “Channel”), spawns browser windows, or any method invented to generate traffic from a Channel without that Channel owner’s knowledge, permission, and participation (e.g. keyword parsing browser plugins such as TopText and +Surf, banner replacement technology such as Gator, browser spawning technology that is not website dependent).

3 Keyword Advertising. Affiliate shall not display or use in any context or manner (directly or indirectly), EAN or its Corporate Affiliate’s trademarks, trade names or logos or any other third party trademarks, logo, or branding (including, without limitation, any misspelling or substantially similar or confusingly similar version thereof) of EAN or any other third party, in any manner whatsoever (including without limitation, in any meta tags, search engine marketing or optimization, in any domain name, any other online/offline marketing or advertising, press releases, etc.) without first obtaining prior written approval from EAN or the applicable third party. Without limiting the foregoing, Affiliate agrees that it will not bid on the names that are present in URLs owned by EAN or its Corporate Affiliates, including, but not limited to, “travelnow.com,” “hotels.com,” “hotel.com,” “vacationspot.com,”, “hotels.co.uk,” “condosavers.com,” “orlando.com,” “expedia.com”, “expedia.co.uk” and “hotwire.com”, for preferential placement in any cost per click search engine or other search engine in which search result page listing order is determined by payment to the search engine or other third party. Further, Affiliate will not use names that are present in URLs owned by EAN or its Corporate Affiliates, including but not limited to “travelnow.com,” “hotels.com, “hotel.com,” “vacationspot.com,” “hotels.co.uk,” “condosavers.com,” “orlando.com,” “expedia.com”, “expedia.co.uk” and “hotwire.com”, in keyword meta tags on any pages of the Affiliate Site(s) or any other websites or Channels owned and/or operated by Affiliate. If EAN or its Corporate Affiliates receive a request from its or their suppliers requesting that Affiliate cease bidding on or otherwise using a name or names present in a URL owned by such supplier, then Affiliate will, at the request of EAN and/or H4U promptly cease the use or bidding upon such name or names.

1 These Terms of Use shall commence on the earlier of: (i) Affiliate’s acceptance of these Terms of Use; and (ii) Affiliate’s first Transaction; and shall continue until terminated.

D2 are not exclusive and are in addition to any other rights and remedies provided by law or these Terms of Use.

D3, E, F, G, and H shall survive any expiration or termination of these Terms of Use.

In performing their obligations under these Terms of Use, EAN (itself or via H4U) and Affiliate will each disclose to the other confidential and proprietary information. The Parties agree that the recipient of any such confidential or proprietary information of the other Party will use such confidential information solely for the purposes for which it is provided by the other Party, will not disclose such confidential information to any third party, and will protect such confidential information from unauthorized use and disclosure; provided that the foregoing obligations will not apply to any: (i) information that becomes generally publicly available through no fault of the recipient; (ii) information that the recipient obtains from a third party (other than in connection with these Terms of Use); (iii) information that is independently developed or acquired by the recipient; (iv) disclosure with the prior written consent of the disclosing Party; or (v) disclosures which are required by applicable law.  Notwithstanding the foregoing, the recipient may disclose such confidential information if required by any judicial or governmental request, requirement or order; provided that the recipient will take reasonable steps to give the disclosing party sufficient prior notice in order to contest such request, requirement or order. For the purposes of these Terms of Use, any entity that controls, is controlled by or is under common control with a Party will not be considered a third party.

2 Media Communications. Affiliate shall not release to the public any press release or other communication to the press and/or public regarding these Terms of Use without EAN’s prior written consent.

3 Data Protection. For purposes of this Section, “Data Protection Law” means all applicable laws and regulations relating to the protection of data in the relevant state or territory, including, where applicable, the local laws implementing the Directives of the European Parliament and of the Council 95/46/EC, 97/66/EC and 2002/58/EC (together, the “Directive”) as from time to time enacted, amended, extended, consolidated, replaced or re-enacted in the relevant territory where Customers’ “personal data” (as defined in the Directive) is received, processed, or transferred. Each Party shall: (a) use commercially reasonable efforts to safeguard the confidentiality and privacy of Customers’ personal data and to protect it from unauthorized use or release; and (b) comply with all applicable laws including but not limited to the Data Protection Law in its use and handling of Customers’ personal data. Affiliate shall ensure that it has obtained the relevant consents and permissions from Customers in order to allow EAN and/or its relevant Corporate Affiliates to process such Customers’ personal data in accordance with this Section E3. Each Party shall implement appropriate technical and organizational security measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access. Such measures will be no less stringent than those a Party generally applies to its own data of similar nature.

THE EAN TRAVEL PRODUCTS ARE PROVIDED BY EAN "AS IS" AND WHERE AVAILABLE, AND EAN MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SAME. EAN EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, OBLIGATIONS AND LIABILITIES ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE HOSTED SITE, SPECIFICATIONS, AFFILIATE NUMBER, AND THE API AND THE EAN TRAVEL PRODUCTS, INCLUDING WITHOUT LIMITATION ANY: (i) IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE; (ii) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; OR (iii) IMPLIED WARRANTY OF NON-INFRINGEMENT.

EAN will have no liability to Affiliate or any Customers relating to: (a) any failure of the systems of EAN or any third party that results in the failure or inability to process a Transaction; (b) the quality of the EAN Travel Products provided by travel suppliers to Customers.

1 No Consequential Damages. EXCEPT FOR CLAIMS ARISING OUT OF BREACH OF SECTION E1 (CONFIDENTIALITY) OR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES OR FOR LOSS OF DATA, REVENUE, PROFIT, OR SAVINGS OF ANY PARTY, INCLUDING THIRD PARTIES, ARISING OUT OF OR RELATED TO THESE TERMS OF USE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

2 Limitation of Liability. EXCEPT FOR CLAIMS ARISING OUT OF BREACH OF SECTION E1 (CONFIDENTIALITY), CLAIMS BY EAN TO RECOVER AMOUNTS PAID BY CUSTOMERS AND COLLECTED BY AFFILIATE ON BEHALF OF EAN OR ITS CORPORATE AFFILIATES PURSUANT TO THESE TERMS OF USE, OR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING IN CONTRACT, EQUITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT) ARISING OUT OF OR RELATED TO THESE TERMS OF USE WILL NOT EXCEED ONE-HUNDRED THOUSAND DOLLARS ($100,000). NOTHING IN THESE TERMS OF USE SHALL EXCLUDE OR LIMIT THE LIABILITY OF A PARTY WITH RESPECT TO DEATH OR PERSONAL INJURY ARISING OUT OF ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES OR FOR ANY REPRESENTATIONS MADE FRAUDULENTLY BY A PARTY.

1 Governing Law and Dispute Resolution. These Terms of Use and all rights and obligations hereunder, including matters of construction, validity, performance and dispute resolution, shall be governed by and construed in accordance with the substantive laws of England and Wales without regard to any conflict of laws, rules or principles that may require the application of any other law or where these Terms of Use or any amendment to it is actually executed. Any dispute, controversy or claim arising out of or in relation to these Terms of Use or at law, or the breach, termination or invalidity thereof, that cannot be settled amicably by agreement between the Parties, shall be finally settled by the Courts of England and Wales, and the Parties submit to the exclusive jurisdiction of those courts.

2 Modification. Notwithstanding any stipulations contained in these Terms of Use, EAN may vary or replace these Terms of Use at any time. EAN will provide to Affiliate such varied or replacement terms by e-mail or other means. In such cases where the Affiliate accepts the varied or replacement terms, such terms shall become effective upon receipt of the acceptance by EAN. If Affiliate does not within four (4) weeks from successful dispatch of such e-mail or receipt of other notification object to such vareid or replacement terms, such terms shall be deemed binding and agreed between the Parties and accordingly these Terms of Use shall be deemed varied or replaced (as applicable). In the event Affiliate objects, EAN may terminate these Terms of Use by notice in writing.

3 Force Majeure. If the performance of these Terms of Use or any obligation hereunder is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected Party, the Party so affected, upon giving prompt notice to the other Party, shall be excused from such performance, except for the making of payments hereunder, to the extent of such prevention, restriction or interference.

4 Non-waiver. No waiver of any term, condition or obligation of these Terms of Use will be valid unless made in writing and signed by the Party to which such performance is due. No failure or delay by any Party at any time to enforce one or more of the terms, conditions or obligations of these Terms of Use will: (a) constitute waiver of such term, condition or obligation; (b) preclude such Party from requiring performance by the other Party at any later time; or (c) be deemed to be a waiver of any other subsequent term, condition or obligation, whether of like or different nature.

5 Assignment. These Terms of Use may not be assigned by either Party without the prior written consent of the other Party not to be unreasonably withheld; except, that EAN may assign these Terms of Use without consent to any of its Corporate Affiliates.

6 Severability. These Terms of Use will be enforced to the fullest extent permitted by applicable law. If any provision of these Terms of Use is held to be invalid or unenforceable, then such provision will be interpreted, construed or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision.

These Terms of Use constitutes the entire and exclusive agreement between the Parties regarding the subject matter hereof, and supersedes all prior or contemporaneous oral or written agreements and understandings; provided nothing in this Section H7 shall limit a Party’s liability for any representations made fraudulently.

ANNEX 1 – GUIDELINES

EAN and its Corporate Affiliates, including but not limited to the EAN Companies, do not supply travel services to Affiliate for onward supply to Customers. In relation to:

  • E-Collect Rooms (an “E-Collect Room” being a room for which payment from the Customer is collected at the time of the Transaction), Customers will contract directly with the EAN Companies in relation to the supply of such E-Collect Rooms; and in relation to
  • Hotel-Collect Rooms (a “Hotel-Collect Room” being a room for which payment from the Customer is collected by the hotel at the time of stay or otherwise), Customers will contract directly with the applicable third party travel suppliers (and not EAN or its Corporate Affiliates) in relation to the supply of such Hotel-Collect Rooms.

Affiliate agrees to adhere to the following:

  1. Affiliate shall not represent itself as acting on behalf of any of the EAN Companies.
  2. Any advertising and promotional materials used in relation used in connection with the EAN Travel Products shall be provided by or expressly approved in writing by EAN.
  3. Affiliate acknowledges that Travelscape LLC or VacationSpot SL is the supplier of E-Collect Rooms to Customers, and that any monies collected from Customers by Affiliate in respect of such products is collected on behalf of Travelscape LLC or VacationSpot SL. Affiliate shall act consistently with this chain of supply in all aspects of its activity in relation to E-Collect Rooms, including but not limited to customer bookings, customer invoicing, accounting for payments, applying local transaction taxes, and the use of advertising and promotional materials.
  4. Affiliate shall notify EAN of any and all customer complaints made to it relating to the VAT treatment of E-Collect Rooms, and must not attempt to deal with such complaints itself. Affiliate may also refer to EAN any enquiries from tax authorities or any other government agencies in relation to these Terms of Use or the E-Collect Rooms, and may provide EAN with the opportunity to review.
  5. Affiliate shall not misrepresent any of the terms of the contract relevant to services being provided under these Terms of Use, including product descriptions.