Partner Terms and Conditions

Option B1 - https://partner.travelcurious.com/partner-terms-and-conditions-option-b1/

1. INTERPRETATION

The following definitions and rules of interpretation apply to these terms and conditions and the associated Commercial Agreement.

1.1 DEFINITIONS:

  • Booking: a booking of a Tour by a Customer through the Partner’s Selected Service Interface.

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

  • Cancellation Date: the date by which a Tour must be cancelled to avoid having to pay the Fee for the Booking as set out in the Cancellation Policy referenced in the Commercial Agreement.

  • Commercial Agreement: the form completed and signed by the Partner and TCL which details the nature of the services and the rates, attached to these terms and conditions.

  • Confidential Information: information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) disclosed to or obtained by the receiving party from the disclosing party or its representatives, relating to the business, customers, products, affairs and finances of the disclosing party and any trade secrets including, without limitation, technical data and know-how relating to the business of the disclosing party or any of its suppliers, Tour Guides, customers, agents, distributors, shareholders, management or business contacts, including in particular (by way of illustration only and without limitation) bespoke tours and experiences and any other information that the receiving party receives or obtains in connection with the Contract, whether or not such information (if in anything other than oral form) is marked confidential.

  • Contract: means these terms and conditions together with the Commercial Agreement.

  • Customer: a customer of the Partner that has accessed the Services via the Partner's Selected Service Interface.

  • Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade-marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.

  • Licensed Rights: those Intellectual Property Rights owned by TCL that are used in the provision of TCL’s Services including the Booking process.

  • Partner: as defined In the Commercial Agreement.

  • Recommended End User Price: the price advertised by TCL and recommended as the price that the Partner charges a Customer. For the avoidance of doubt, the Partner is not bound by a Recommended End User Price when taking a Booking and is free to charge a Customer such price as the Partner may determine but the Fee payable to TCL shall nevertheless be determined by reference to the Recommended End User Price.

  • Selected Service Interface: the price advertised by TCL and recommended as the price that the Partner charges a Customer. For the avoidance of doubt, the Partner is not bound by a Recommended End User Price when taking a Booking and is free to charge a Customer such price as the Partner may determine but the Fee payable to TCL shall nevertheless be determined by reference to the Recommended End User Price.

  • Services: providing Tours and facilitating Bookings through the Selected Service Interface and delivery of the Tours.

  • TCL: Travel Curious Ltd.

  • Tour: the tour that is booked by the Partner for a Customer through the Selected Service Interface and delivered by TCL.

  • Tour Guides: the tour that is booked by the Partner for a Customer through the Selected Service Interface and delivered by TCL.

1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

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

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 e-mail.

1.6 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.7 Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.

1.8 References to clauses are to the numbered clauses of these terms and conditions.

2. COMMENCEMENT AND TERM

2.1 The Contract shall commence on the date on which the Commercial Agreement is signed by both parties and shall continue unless it is terminated in accordance with clause 16 (Termination).

2.2 These terms and conditions may be updated by TCL from time to time on one month's written notice.

3. BOOKINGS

3.1 TCL, in providing the Services, acts as agent for and on behalf of the Tour Guides.

3.2 The Partner shall have no authority, and shall not hold itself out, or permit any person to hold itself out, as being authorised to bind TCL or the Tour Guides in any way, and shall not do any act which might reasonably create the impression that the Partner is so authorised.

3.3 The Partner acknowledges that it has no authority or ability to negotiate or vary any terms associated with a Booking or a Tour including the advertised details of a Tour, as advertised through the Selected Service Interface.

4. OBLIGATIONS OF TCL

4.1 TCL shall provide the Services to the Partner on the terms and conditions set out in the Contract.

4.2 TCL shall provide the Partner at all material times with the information the Partner reasonably requires to carry out its obligations, including:

(a) marketing information for, and details of, TCL’s Services; and

(b) information about TCL.

4.3 TCL shall provide the Partner with one month's written notice, via email, if it requires it to either amend or suspend all or part of TCL’s Services.

4.4 Where TCL provides customer service to the Partner’s Customers, TCL shall use reasonable endeavours to respond:

(a) to Customer queries prior to the Tour the next Business Day; and

(b) to in-Tour Customer queries within 2 hours.

5. PAYMENT TERMS

5.1 The Partner will collect payment for a Booking directly from a Customer and the Partner shall pay TCL for its Services in full and cleared funds. Payment shall be made either by credit card payment through the Selected Service Interface or by direct bank transfer to TCL to such account as TCL may nominate in writing from time to time.

5.2 For Bookings made:

(a) 14 days or more in advance of a Tour, TCL will invoice the Partner at least 14 days prior the Tour commencement and Payment must be received in full and cleared funds prior to the Cancellation Date.

(b) 5 days or less prior to the Tour, TCL must receive Payment in full and cleared funds prior to the Cancellation Date.

5.3 Any cancellations made after the Cancellation Date will incur a charge in accordance with the Cancellation Policy referenced in the Commercial Agreement.

5.4 TCL reserves the right to cancel a Booking if Payment is not made in accordance with the Contract.

5.5 TCL and the Tour Guide accept no liability for any cancelled or missed Tours or for any claims made by the Customer as a result of the Partner not making the Payment in accordance with the Contract.

6. CONFIDENTIALITY

6.1 Each party undertakes that it shall not at any time disclose to any person any Confidential Information concerning the business, affairs, Customers, Tour Guides or clients of the other party, except as permitted by clause 6.2.

6.2 Each party may disclose the other party's Confidential Information:

(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party's Confidential Information comply with this clause 6; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; provided, however where permitted by law, a disclosing party shall give prior timely notice of such disclosure to the other party to permit that party to seek a protective order, and in the absence of such protective order, a disclosing party shall disclose only such Confidential Information that it is advised by its counsel must be disclosed by law.

6.3 No party shall use the other party's Confidential Information for any purpose other than to perform its obligations under the Contract.

6.4 On termination of the Contract, all documents and other records (in whatever form) containing Confidential Information supplied to or acquired by the receiving party shall be destroyed or returned promptly to the disclosing party, and no copies shall be kept, except where required by law or kept in accordance with bona fide internal policies.

6.5 Either party may issue a press release or public statement in respect of the Contract or the relationship between the parties, subject to the prior written approval of the other party.

7. WARRANTIES AND REPRESENTATIONS

7.1 Each party confirms that it has the full power and authority to enter into the Contract and that the person signing on its behalf is duly authorised to do so.

7.2 Each party confirms that the execution, delivery and performance of the Contract does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.

7.3 The Partner shall indemnify TCL, and their respective directors, employees, representatives, subcontractors, agents, successors and assigns (collectively, the “TCL Indemnified Parties”) against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by TCL arising out of or in connection with:

(a) Partner’s negligent act, omission or default of Partner; and/or

(b) any infringement of TCL’s Intellectual Property Rights by the Partner.

7.4 Neither party will be liable for, or be considered to be in breach of, or default under, the Contract on account of any delay, or failure to perform as required by the Contract, as a result of any cause or condition beyond such party's reasonable control (including, without limitation, any act or failure to act by the other party).

8. INTELLECTUAL PROPERTY LICENCE

8.1 TCL hereby grants to the Partner for the term of the Contract a non-exclusive, royalty-free, non-transferable licence to use and apply the Licensed Rights to the Selected Service Interface and the Services, solely for the promotion of TCL’s tours and experiences. For the avoidance of doubt, the licence granted pursuant to this clause cannot be sub-licensed.

8.2 The Partner shall comply with the specifications, standards and directions relating to the Licensed Rights as notified in writing via email by TCL from time to time and with all applicable laws, regulations, industry standards and codes of practice.

8.3 The Partner shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:

(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Selected Service Interface in any form or media or by any means; or

(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Selected Service Interface; or

(b) access all or any part of the Selected Service Interface and/or Services in order to build a product or service which competes with TCL; or

(c) use the Selected Service Interface and/or Services to provide services to third parties; or

(d) attempt to obtain, or assist third parties in obtaining, access to the Selected Service Interface and/or Services, other than as provided under the Contract; or

(e) introduce or permit the introduction of, any virus or vulnerability into the Selected Service Interface.

8.4 The Partner shall provide TCL with details of any complaints it has received relating to the Licensed Rights together with reports on the manner in which those complaints are being or have been dealt with and shall comply with any reasonable directions given by TCL concerning those complaints.

8.5 The right to use and apply the Licensed Rights to the Selected Service Interface and/or the Services ends upon termination of the Contract.

9. PROPRIETARY RIGHTS

9.1 The Partner acknowledges and agrees that TCL and their respective licensors own all Intellectual Property Rights in or arising out of or in connection with the Services. Except as expressly stated herein, the Contract does not grant the Partner any Intellectual Property Rights belonging to TCL. All such rights are reserved to TCL.

9.2 TCL acknowledges and agrees that the Partner and their respective licensors own Intellectual Property Rights in the partners sites and services. Except as expressly stated herein, the Contract does not grant TCL any Intellectual Property Rights belonging to the Partner. All such rights are reserved to Partner.

10. DATA PROTECTION

10.1 Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including (without limitation) (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 and any successor legislation; and (ii) for so long as and to the extent that the law of the EU has legal effect in the UK, the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable EU regulation relating to privacy ("Data Protection Legislation"). This clause is in addition to, and does not reduce, remove or replace, a party's obligations arising from such requirements.

10.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Partner is the controller and TCL is the processor.

10.3 Without prejudice to the generality of clause 10.1, the Partner will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to TCL for the duration and purposes of the Contract.

10.4 Without prejudice to the generality of clause 10.1, TCL shall, in relation to any personal data processed in connection with the performance by TCL of its obligations under the Contract:

(a) process that personal data only on the documented written instructions of the Partner unless TCL is required by applicable law to otherwise process that personal data. Where TCL is relying on the laws of a member of the European Union or European Union law as the basis for processing personal data, TCL shall promptly notify the Partner of this before performing the processing required by the applicable law unless the applicable law prohibits TCL from so notifying the Partner;

(b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

(c) without prejudice to clause 6 (Confidentiality), ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and

(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Partner has been obtained and the following conditions are fulfilled:

(i) the Partner or TCL has provided appropriate safeguards in relation to the transfer;

(ii) the data subject has enforceable rights and effective legal remedies;

(iii) TCL complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

(iv) TCL complies with reasonable instructions notified to it in advance by the Partner with respect to the processing of the personal data;

10.5 notify the Partner without undue delay on becoming aware of a personal data breach;

10.6 at the written direction of the Partner, delete or return personal data and copies thereof to the Partner on termination of the Contract unless required by applicable law to store the personal data; and

10.7 maintain complete and accurate records and information to demonstrate its compliance with this clause 10 (Data Protection) and immediately inform the Partner, if, in the opinion of TCL, an instruction infringes the Data Protection Legislation.

11. SECURITY

11.1 The security and integrity of TCL IT systems as defined in the published security policy is a priority for TCL. Partner acknowledges and agrees that it has read and will comply with all the policies set out in clause 12 of these terms and conditions.

11.2 The Partner shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the TCL IT Systems and, in the event of any such unauthorised access or use, promptly notify TCL.

11.3 The Partner shall not access, open, store, distribute or transmit any viruses, or any material during the course of its use of the TCL IT systems that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(c) is otherwise illegal or causes damage or injury to any person or property; and TCL reserves the right, without liability or prejudice to its other rights to the Partner, to disable the Partner's access to any material that breaches the provisions of this clause.

11.3 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 agreement which existed at or before the date of termination.

12. POLICIES

In performing its obligations under the Contract, Partner shall comply with all applicable laws, statutes, regulations from time to time in force and the Policies set out in the table below.

  • Complaints Policy - 7 June 2019

  • Data Breach Policy - 28 May 2019

  • Data Protection Policy - 28 May 2019

  • IT Security Policy - 28 May 2019

  • Privacy Policy - 28 May 2019

13. FORCE MAJEURE

13.1 Neither party shall be liable to the other for any event which neither party can reasonably foresee or avoid and which results in a contractual default. These events can include, but are not limited to war, threat of war, civil strife terrorist activity and its consequences or the threat of such activity, riot, the act of any government or other national or local authority including port or river authorities, industrial dispute, lock closure, natural or nuclear disaster, fire, chemical or biological disaster, acts of God, epidemics and all similar events outside the affected party’s control.

14. LIMITATION OF LIABILITY

14.1 This clause 14 sets out the entire financial liability of TCL (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Partner:

(a) arising under or in connection with the Contract; and

(b) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

14.2 Except as expressly and specifically provided in the Contract, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract.

14.3 Nothing in the Contract excludes the liability of TCL:

(a) for death or personal injury caused by TCL’s negligence; or

(b) for fraud or fraudulent misrepresentation ;or

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

14.4 Subject to clause 14.3:

(a) TCL shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under the Contract; and

(b) TCL's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the amount paid under the Contract by TCL to the Partner during the 12 months preceding the date on which the claim arose.

15. INSURANCE

Each party shall at all times maintain valid insurance policies with a reputable insurance company to cover their separate risks and liabilities under the Contract (such policies to include but not be limited to public liability insurance in an amount of not less than GBP 5,000,000 for any event, unless the parties agree otherwise in writing).

16. TERMINATION

16.1 Either party may terminate the Contract on 90 days’ written notice for any reason.

16.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing via email to do so;

(b) the other party repeatedly breaches any of the terms of the Contract in such 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;

(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;

(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);

(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);

(g) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days; or

(j) 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 this clause 16.

17. CONSEQUENCES OF TERMINATION

17.1 On termination of the Contract, the following clauses shall continue in force: clause 1, clause 6, clause 9 and clauses 18 to 27 (inclusive).

17.2 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.

18. NO PARTNERSHIP OR AGENCY

18.1 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.

18.2 Each party confirms, that save as referred to in the Contract it is acting on its own behalf and not for the benefit of any other person.

18.3 The Partner shall not make or enter into any contracts or commitments or incur any liability for or on behalf of TCL or the Tour Guides, including for the provision of TCL’s Services or the price for them, and shall not negotiate any terms for the provision of the Tour Guides with Customers.

19. ENTIRE AGREEMENT

19.1 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.

19.2 Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract.

19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

19.4 Nothing in this clause shall limit or exclude any liability for fraud.

20. VARIATION

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

21. ASSIGNMENT AND OTHER DEALINGS

The Contract is personal to the parties and neither party shall 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.

However, both parties agree that in the case of change of ownership, the relevant party shall automatically be permitted to transfer, wholly or partially, its rights and/or obligations under the Contract, by way of assignment and/or novation and/or contribution, to the new ownership entity.

22. WAIVER

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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

23. SEVERANCE

23.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted but that shall not affect the validity and enforceability of the rest of the Contract.

23.2 If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

24. NOTICE

24.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

(a) delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(b) sent by e-mail to an e-mail address as notified to the other party from time to time.

24.2 Any notice 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;

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

(c) if sent by email, at the time of transmission.

24.3 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.

25. THIRD PARTY RIGHTS

No one other than a party to the Contract shall have any right to enforce any of its terms.

26. GOVERNING LAW

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 Wales.

27. JURISDICTION

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).