Please read these Terms. Defined terms are indicated by capitalization, and where these terms are not defined in the text, they are defined at the end of these Terms. By facilitating Bookings for End Customers through the Approved Platform you agree, acknowledge and represent to us that:
- Your representative has read and understood these Terms on your behalf;
- You agree to be bound by these Terms without modification; and
- Your representative entering into the agreement created by acceptance of these Terms has the power, capacity and authority to enter into these Terms and to bind you.
- AGENT OBLIGATIONS
- Content. You will not change, amend or misrepresent any of the information, content or data (Content) relating to the Hotel Information that is provided in the Approved Platforms.
- Access to the Approved Platform. You must:
- only input the End Customer’s data in the Approved Platform and solely for the purpose of facilitating Bookings; and
- ensure that the End Customer’s data and any other information submitted to the Approved Platform is complete and accurate.
- Bookings. Prior to the completion of a Booking, you must:
- ensure that the End Customer is aware of any limitations or restrictions that apply to their Booking, including whether the End Customer is allowed to make any cancellations or changes to their Booking and the consequences of the same; and
- not make any verbal or written assurances to an End Customer which are additional to or are contrary to: these Terms which includes promising an End Customer that their special request will be met.
You shall be solely responsible and liable to use in respect of any representations or special requests made or confirmed to the Customer without our prior written authorization and approval.
- Customer Communications and Complaints.
- You shall within 24 hours of receipt: (i) provide to the End Customer, without amendment or modification, all information related to a Booking; and (ii) provide to us, without amendment or modification: (1) all communications received related to a Booking; (2) any complaints received from End Customers; and (3) any communications received from Trading Standards or any other regulatory trade body which relate to an End Customer and/or any Booking.
- You shall notify us within 24 hours if you receive any End Customer complaint, claim or action regarding a Booking (each an End Customer Issue). You acknowledge and agree that we shall have the right to attempt to settle any End Customer Issue directly with the End Customer. If we attempt such a settlement, you must, at your expense, provide us with all information and reasonable assistance we require to reach settlement and you shall refrain from taking any other action in respect of the End Customer Issue; unless required to do so by Applicable Law.
- Compliance with Laws. You shall comply with all applicable laws in force from time to time relevant to the performance of your obligations under these Terms including, without limitation, any legislation relating to the licensing of travel agents (Applicable Laws). You undertake and warrant that you shall be solely responsible for obtaining and maintaining all licenses, consents and other permissions (each, if any and whether regulatory or otherwise) and all financial security arrangements necessary for the performance of obligations under these Terms in respect of bookings of Packages provided and/or arranged by you. You will comply with all applicable laws (including European Council Directive 90/314/EEC and all relevant local implementations of it) in making Packages available pursuant to these Terms. You shall be solely responsible for your own costs of complying with this Section 1.5. We agree to provide to the other all necessary assistance and support in the event of an enquiry, request for information or investigation into the making available of Packages by any national authority, consumer body or other interested party
- Package Bookings. You will not:
- display nor make available Hotel Information to End Customers for the purpose of an Booking except as part of a Package;
- display separate pricing comprised within the Hotel Information to End Customers at any time during the process of a Booking or confirmation of that Booking; and
- facilitate Bookings at a rate lower than the rate in the Approved Platform.
We may from time to time require you at your own cost to demonstrate your ongoing compliance with this Section 1.6. You shall upon our written request, send copies of booking confirmations, booking details and give access to such other information, systems and/or documentation as is reasonably necessary to demonstrate your compliance with this Section 1.6. Without prejudice to any other rights or remedies available to us or our Group Members, if you are in breach of this Section 1.6 we may restrict access to Package Products with immediate effect and may terminate these Terms.
- CODE OF CONDUCT
- You shall not send unsolicited bulk email, “spam” or otherwise engage in any other unethical or illegal marketing activities (as determined by us, EAN or Numinous, acting reasonably) concerning End Customers in any jurisdiction.
- You shall not:
- place any material on any customer facing website or associate Hotel Information with any material or opinions that are illegal in any jurisdiction or are otherwise discriminatory, promote or incite violence, hatred or an illegal activity, are capable of interpretation as discriminatory or of promoting such views, or are inappropriate for general or family viewing (e.g. sexually explicit materials);
- mislead or misrepresent to consumers as to the origin, affiliation or nature of your websites, products or services;
- sell, redistribute, display or use in any context or manner (directly or indirectly), any data or materials from EAN or its Group Members’ websites, EAN or its Group Members’ trademarks, logos or branding or any other third party (including third party accommodation suppliers) trademarks, logo, or branding (including any misspelling or substantially similar or confusingly similar version thereof), 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 our or the relevant third party's prior written approval;
- sell, redistribute, display or use any data, materials or other content from any website owned or operated by EAN or our Group Members other than in accordance these Terms.
- Predatory Advertising. You 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 a Hotel Information (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.
- Keyword Advertising. You will not bid on the names that are present in URLs owned by EAN or its Group Members, including, "travelnow.com", "hotels.com", "hotel.com", "vacationspot", “travelscape”, "hotels.co.uk", “airasia”, "condosavers.com", "orlando.com", "expedia”, "hotwire.com", “travelocity”, “orbitz”, “cheaptickets”, “ebookers”, “wotif” or “homeaway.com (or any regional variants), 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, and will not use any such names in keyword meta tags on any pages of the approved websites or any other websites or channels you own or operate. If requested, you shall promptly cease bidding on or otherwise using name or names present in a URL of any hotel supplier or any brand or name of such supplier.
- You shall not represent yourself as acting on behalf of EAN, Numinous or any of its Group Members.
- You shall not misrepresent who you are acting for when contacting End Customers including (as an example only) leading End Customers to believe that you are directly connected to any of the accommodation suppliers providing the underlying Hotel Information.
- You shall not directly contact any of the accommodation suppliers providing the rooms which are the subject of the underlying Bookings in relation to Bookings. Any direct communications from such accommodation suppliers which you receive should be referred immediately to us.
- You shall notify us of any and all enquiries from tax authorities or any other government agencies in relation to these Terms or Bookings, and shall provide us with the opportunity to review and/or contribute to any response to such enquiries.
- TERM AND TERMINATION
- These Terms shall commence on the earlier of: (i) your acceptance of these Terms; or (ii) your first Booking; and subject to earlier termination in accordance with Section 3.2, shall continue until expiry or termination of our relationship with you or EAN’s or Numinous’ relationship with us (Term).
- We in our sole discretion and without cause may terminate these Terms immediately upon written notice for any reason. You may terminate these Terms on thirty (30) days’ written notice to us. The rights and remedies provided in this Section 3.2 are not exclusive and are in addition to any other rights and remedies provided by law or these Terms.
- Upon termination or expiration of these Terms for any reason: (i) you shall immediately cease procuring Bookings; and (ii) we may immediately shut down your account. Sections 3.3, 4, 5, and 6 shall survive any expiration or termination of these Terms.
- CONFIDENTIALITY; MEDIA COMMUNICATIONS, DATA PROTECTION
- For the purpose of this clause, Confidential Information means any and all know-how, documentation and information, whether commercial, financial, technical, operational or otherwise, relating to the business, finances, affairs, tools (including those provided on a technology), products, services, personnel, customers, suppliers (including precincts, future and potential personnel, customers and suppliers), prices, commissions, rates, vendors, processes, or methods of one party or its Group Members (and EAN or its Group Members), which is disclosed to or otherwise obtained by the other party in connection with these Terms and the existence, terms and subject matter of these Terms.
- Both you and we (each a Party and together the Parties) shall keep the other's Confidential Information confidential and shall not divulge the same to any third party, except EAN or EAN’s Group Members, unless divulging for the purposes of these Terms, or use it itself for any other purpose without the prior written consent of the other Party.
- Section 4.1 (b) shall not apply to any Confidential Information that the receiving Party can show: (i) is in the public domain in substantially the same combination as that in which it was disclosed to the receiving Party other than as a result of a breach of these Terms or any other obligations of confidentiality; (ii) is or was lawfully received from a third party not under an obligation of confidentiality with respect thereto; (iii) is required to be disclosed under operation of law, by court order or by any regulatory body of competent jurisdiction (but then only to the extent and for the purpose required); (iv) is approved for disclosure in writing; or (v) was developed independently of and without reference to Confidential Information disclosed by the other Party; provided that a particular disclosed or discovered use, combination, analysis, form or collection of information will not be in the public domain simply because it could be re-created using information in the public domain.
- Each Party shall give the other as much notice of any disclosure required under Section 4.1(c) as is reasonable and lawful in the circumstances (if any) and shall provide the other with reasonable assistance in avoiding or limiting the required disclosure.
- Each Party shall be entitled to divulge the other Party's Confidential Information to its employees, agents, directors, officers, authorized sub-contractors, professional advisors and consultants who have a need to know the same in connection with these Terms provided that the receiving Party shall ensure that such persons are aware of and, shall procure that such persons comply with, these obligations as to confidentiality.
- Media Communications. You shall not release to the public any press release or other communication to the press and/or public regarding these Terms without our prior written consent.
- Data Protection. For the purposes of Section 4.3, the following terms will have the following meanings:
Applicable Data Protection Law(s) means all data protection and privacy laws and regulations that are applicable to you (including, if you are established or use data processing equipment in the European Economic Area, European Union Directives 95/46/EC and 2002/58/EC (as implemented, amended or replaced));
Data Breach means any unauthorized access, loss, destruction, theft, use or disclosure of End Customer Data;
Data Controller, Data Processor, Personal Data and Processing have the meanings set out under Applicable Data Protection Law;
End Customer Data means any information relating to an identified or identifiable individual End Customer who views, enquires about, books or has stayed at a hotel in accordance with their Booking and relates only to Personal Data which is Processed under these Terms.
- You shall:
- implement appropriate operational and technical measures to protect the End Customer Data against any Data Breach; and
- promptly notify us if you suffer a Data Breach, giving full details of the same and providing us with such reasonable cooperation as it may require in order to remedy or mitigate the effects of the Data Breach.
- You warrant and represent that you will:
- only obtain, use, transmit and store End Customer cardholder data to the extent required to comply with your obligations under these Terms;
- where you obtain, use, transmit, store or process End Customer’s cardholder data, you will comply with the Payment Card Industry Data Standard Security Requirements (PCI DSS) as issued by the PCI Security Standards Council, as updated from time to time;
- provide us with a copy of your annual certification of compliance;
- promptly notify us of any breach of the PCI DSS or any other unauthorized access to End Customer cardholder data.
YOU AGREE THAT EAN AND NUMINOUS MAKE NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE HOTEL INFORMATION. YOU AGREE THAT EAN AND NUMINOUS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, OBLIGATIONS AND LIABILITIES ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE HOTEL INFORMATIONS, 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.
YOU AGREE THAT EAN AND NUMINOUS WILL HAVE NO LIABILITY TO YOU OR ANY END CUSTOMERS RELATING TO: (A) ANY FAILURE OF THE SYSTEMS OF US OR ANY THIRD PARTY THAT RESULTS IN THE FAILURE OR INABILITY TO PROCESS A BOOKING; OR (B) THE QUALITY OF THE HOTEL INFORMATION PROVIDED BY TRAVEL SUPPLIERS TO END CUSTOMERS.
- Governing Law and Dispute Resolution. These Terms 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 or any amendment to it is actually executed. Any dispute, controversy or claim arising out of or in relation to these Terms 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.
- Modification. We may make changes to these Terms from time to time. We will notify you of any changes and provide you with a copy of the revised terms by email or such other means as may have been agreed between the parties. If you do not agree with the changes, you must notify us by email within 30 days of the date of (i) successful dispatch of our email or (ii) receipt of our notice if sent by any other method. If you fail to do so within this time period you shall be deemed to have accepted the changes and the changes will come into effect on the date set out in the revised terms. If you notify us that you object, either Party may terminate these Terms in accordance with Section 3.2.
- Force Majeure. Neither Party shall be liable to the other for any failure or delay in the performance of its obligations under these Terms (save in respect of any obligation to pay any monies due) to the extent that such failure or delay arises due to reasons beyond such Party's reasonable control which that Party is unable to reasonably avoid or provide against provided always that the affected Party promptly notifies the other of the cause and likely duration of the failure or delay and takes all reasonable steps, including implementation of its business continuity and disaster recovery plan to overcome the failure or delay as soon as possible.
- Non-waiver. No waiver of any term, condition or obligation of these Terms will be valid. No failure or delay by any Party at any time to enforce one or more of the terms, conditions or obligations of these Terms 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.
- Assignment. These Terms may not be assigned by either Party without the prior written consent of the other Party not to be unreasonably withheld.
- Severability. These Terms will be enforced to the fullest extent permitted by Applicable Law. If any provision of these Terms 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.
- Entire Agreement. These Terms constitute the entire and exclusive agreement between the Parties regarding the subject matter hereof, and supersede all prior or contemporaneous oral or written agreements and understandings; provided nothing in this Section shall limit a Party’s liability for any representations made fraudulently.
- Third Party Rights. You agree and acknowledge that EAN, Numinous and each of its Group Members shall have the benefit of these Terms. Notwithstanding this, the Parties agree that any claims in respect of losses suffered by EAN, Numinous and/or any of their Group Members shall where possible be brought by us for and on behalf of the affected Group Member and the Parties agree that, for this purpose, we shall be agent for and conduct any claims on behalf of such Group Member. Nothing in this clause shall enable EAN, Numinous and each of its Group Members to be entitled to recover damages or obtain any other form of payment or compensation more than once in respect of the same loss or breach.
- Notices must be given in English by email by a Party's authorized sender to the addresses notified to the other Party from time to time.
- An email notice shall take effect: (i) if sent before 4.30pm on a Working Day, on the day of transmission; or (ii) when receipt is acknowledged by any of the receiving party's authorized recipients, or in the absence of such acknowledgment, 3 hours after the time of transmission (as recorded by the sending party's email application) save where such time of receipt would fall after 4.30pm on a Working Day, in which case it shall be deemed received at 10am on the next Working Day; and where (iii) no error (including any delivery error message) or valid out-of-office email message is received by the sending party in response to such email notice in respect of all of the receiving party's authorized recipients.
- DEFINITIONS AND INTERPRETATION
- Definitions. In these Terms, the following definitions apply:
Applicable Laws: as defined at Section 1.5 of these Terms;
Approved Platform: the websites and/or platforms you use to market the Hotel Information;
Booking: the booking of a Hotel Information through the Approved Platform;
EAN: means EAN.com LP;
End Customer: the individual or corporate customer undertaking the Booking, or on whose behalf the Booking is being made;
End Customer Issue: as defined at Section 1.4(b) of these Terms;
Group Member: an entity that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with an entity;
Hotel Information: the rate and availability information that Numinous LLC make available to us (at its sole discretion) from time to time;
Numinous: means Numinous LLC, a Group Member of EAN.com LP;
Package: the booking of accommodation together with a travel component (air, rail and car only);
Term: as defined at Section 3.1 of these terms;
Working Day: Monday to Friday excluding bank holidays in England.
In these Terms, except where the context requires otherwise:
- references to sections or schedules shall be to sections of and schedules to these Terms. Headings are inserted for ease of reference and shall not affect interpretation;
- persons includes natural persons, firms, partnerships, companies, corporations, and words suggesting a gender shall include all other genders, words denoting the singular shall include the plural and vice versa;
- references to statutes, statutory instruments and government regulations shall be deemed to include any modification, amendment, extension or re-enactment thereof from time to time;
- the expressions including, include, in particular, for example and any similar expression shall not limit the preceding words;
- references to writing and written include communication by email including all related attachments;
- a reference to any agreement or document means that agreement or document as amended or varied by written agreement between the Parties from time to time.