Terms & Conditions
The following are the terms and conditions (“Terms and Conditions”) that govern the provision of Services to you (“the Client”) by Traveltek Ltd a company incorporated in Scotland under company number SC169803 and having its registered office at Unit 2b, Orbital Court, Peel Park, East Kilbride, G74 5PH, or Traveltek Media Ltd, a company incorporated in Scotland under company number SC294130, having its registered offices at Unit 2b, Orbital Court, Peel Park, East Kilbride, G74 5PH (“Traveltek”).
1. DEFINITION AND INTERPRETATION
1.1 In this Agreement the following words and expressions will have the following meaning unless the context otherwise requires:
“Actual Delivery Date” means the date on which Traveltek is able to provide the Client with access to the Interface and any Bespoke Design;
“Agreement” means these Terms and Conditions together with the Order Form;
“Bespoke Design” means any foreground design or customisation of the Website to be created by Traveltek specifically for the Client;
“Build Fee” means the one-off fee (exclusive of Value Added Tax for which the Client is responsible) payable by the Client to Traveltek for any Bespoke Design and for access to the Interface and as set out in the Order Form;
“Build Services” means the development by Traveltek of the Bespoke Design;
“Business Days” means any day other than a Saturday or Sunday where banks in London are open for normal business;
“Client Deliverables” means the deliverables as more particularly described in the Order Form which the Client must provide to Traveltek to allow Traveltek to provide the Services to the Client;
“Commencement Date” means the date of last signature of this Agreement;
“Confidential Information” means any information from either party which is not public knowledge including all know-how, trade secrets, processes, plans, intentions, product information, financial information, records, accounts, forecasts and analyses, technical data, reports, drawings, designs, together with all developments, modifications, additions, alterations and amendments thereto, information relating to market opportunities, transactions, business undertaken or to be undertaken by the disclosing party, information concerning that party’s customers, clients, suppliers made by either party in the course of performance of this Agreement;
“Data” means any data, material and/or information owned by the Client;
“Data Protection Legislation” means (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998;
“Deposit” means the sum which shall be 50% (exclusive of VAT for which the Client shall be responsible) of the Build Fee or such other sum set out in the Order Form and which shall be paid by the Client to Traveltek in accordance with clause 5;
“End User Licence Agreement” means an agreement between a Supplier and the Client governing the use of the Supplier’s systems;
“Excessive Search Fee” means the fee (exclusive of Value Added Tax for which the Client is responsible) payable by the Client to Traveltek and as more particularly described in the Order Form. All fees payable are exclusive of VAT;
“Fee” means collectively the Deposit, the Build Fee, the Transaction Fee and the Excessive Search Fee, as applicable and as more particularly described in the Order Form. All fees payable are exclusive of VAT;
“Force Majeure” means any event outside the reasonable control of either party affecting its ability to perform any of its obligations (other than payment) under this Agreement, including Act of God, fire, flood, lightning, war, revolution, terrorism, strikes, lock-outs or other industrial action, whether of the affected party’s own employees or others, and including unavailability of any infrastructure being provided by a third party;
“Initial Term” means the 1 year period from the Actual Delivery Date unless otherwise specified on the Order Form;
“Interface” means the interface and any product supplied by Traveltek which the Client shall be granted access to on these terms and conditions and subject always to the Specification;
“Interface Services” means the provision of access to the Interface and any Bespoke Design by Traveltek all as more particularly described in the Order Form;
“IPR” means rights, including but not limited to, rights in or to copyright, design rights, database rights, patents, trade marks, brand names, trade names, technical information or know-how or confidential information and any other rights in respect of any other industrial or intellectual property, whether registrable or not and wherever existing in the world and including, without limitation, all rights to apply for any of the foregoing rights;
“Order Form” means the document attached to these Terms and Conditions which sets out the commercial aspects of this Agreement;
“Services” means the Build Services and the Interface Services;
“Specification” means the specification of the services to be provided by Traveltek as agreed between the parties and set out in the Order Form;
“Supplier” means the third party supplier who provides Traveltek with the capability to provide certain of the Services;
“Target Delivery Date” means the date specified in the Order Form for completion of the Build Services;
“Transaction” means a booking transaction made by the Client or the Client’s customers via the Website;
“Transaction Fee” means the fee payable by the Client to Traveltek for each Transaction;
“Website” means the Client’s website as more particularly described in the Order Form.
1.2 Words denoting the singular will include the plural and vice versa, and references to persons will include an individual, company, corporation, firm or partnership. References to any statute, statutory provision, rule or regulation will include references to the same as from time to time amended, extended, re-enacted or consolidated and include all related subordinate legislation.
1.3 Headings used in this Agreement are for reference only and will not affect interpretation. References to clauses in this Agreement are to the clauses of this Agreement, unless otherwise specified.
2.1 Traveltek shall provide the Services in accordance with and subject to this Agreement and the Client shall pay the Fees.
2.2 Traveltek and the Client may enter into a separate agreement for support and maintenance and hosting services to be provided by Traveltek, which shall be provided on and subject to a service level agreement to be agreed between Traveltek and the Client.
2.3 In entering into this Agreement, the Client acknowledges that it does not rely and has not relied on any representations concerning the Services made by Traveltek, its employees or any third parties which have not been confirmed by Traveltek in writing.
2.4 The Client shall be responsible to Traveltek for ensuring the accuracy of the terms of the Order Form submitted by the Client and such order shall only be accepted by Traveltek when confirmed by Traveltek’s authorised representative in writing.
2.5 An order which has been accepted by Traveltek may not be cancelled or varied by the Client except with the prior written agreement of Traveltek and on terms that the Client shall indemnify Traveltek in full against all loss (including loss of profit), costs, damages, fees and expenses incurred by Traveltek as a result of such cancellation or variation.
2.6 The Client acknowledges that the Services, with the exception of the Bespoke Design, have not been created to meet the individual requirements of the Client and that it is the Client’s obligation to determine whether the Services are fit for the purposes for which the Client has ordered them, regardless of whether the Client has expressed such purpose to Traveltek or whether Traveltek could reasonably have been aware of such purpose.
3.1 Traveltek shall provide the Build Services from the Commencement Date until the Actual Delivery Date.
3.2 Traveltek shall provide the Interface Services from the Actual Delivery Date, and subject to earlier termination in accordance with the provisions of this Agreement, will continue to do so for the Initial Term.
3.3 If either party does not wish to continue this Agreement beyond the Initial Term it may terminate this Agreement only by giving the other party 3 months’ prior written notice such notice to expire no sooner than the end of the Initial Term.
3.4 Following expiry of the Initial Term (and subject to earlier termination as aforesaid), this Agreement will continue in force for terms of one year (the “Additional Terms”) until terminated by either party only on at least 3 months’ prior written notice such notice to expire no sooner than the end of the relevant Additional Term.
4. PROVISION OF SERVICES BY TRAVELTEK
4.1 The Client shall provide Traveltek with the Client Deliverables within 15 Business Days of the Commencement Date or by such other date as may be agreed between the parties from time to time.
4.2 Unless and until the Client meets its obligation under clause 4.1, Traveltek shall have no obligations under this Agreement.
4.3 The Client hereby grants to Traveltek a non-exclusive, transferable licence to use the Client Deliverables, the Client’s IPR and the Data to the extent required for Traveltek to provide the Services.
4.4 Subject to clause 4.5, Traveltek shall provide the Client with a licence in accordance with clause 4.8 to access the Interface (including the Bespoke Design) with effect from the date of full payment of the Build Fee in accordance with clause 5.2 or on such other date as is agreed between the parties. For the avoidance of doubt, Traveltek does not guarantee that it will provide the Client with access to the Interface on the Target Delivery Date and shall have no liability for any failure to provide access to the Interface on the Target Delivery Date.
4.5 Traveltek shall not be responsible for any failure to supply access to particular content through the Interface where such failure results from the acts or omissions of a third party supplier of that content. Notwithstanding the foregoing, Traveltek shall use all reasonable endeavours to reinstate access to any content referred to in the Order Form.
4.6 Unless otherwise agreed in writing the Actual Delivery Date shall be 10 Business Days following the Target Delivery Date or such date as otherwise agreed under clause 4.4.
4.7 The Order Form shall set out the maximum number of searches that the Client may process before Excessive Search Fees become payable. Notwithstanding the foregoing, Traveltek reserves the right to implement Excessive Search Fees where these have not previously been specified in the Order Form or vary Excessive Search Fees from time to time by notifying the Client as soon as reasonably practicable in writing.
4.8 The licence referred to in clause 4.4 shall be a non-exclusive, non-transferable licence from Traveltek to the Client, for the Initial Term and any Additional Terms, to access the Interface (including Bespoke Design) for its business purposes and in accordance with this Agreement. The Client shall not have any right to grant a sub-licence of the licence granted under this clause 4.8.
4.9 The Traveltek API interface is supplied under license for the sole construction of Business to Consumer (B2C) applications. Traveltek reserve the rights to restrict any development access to our API for Business to Business (B2B) applications.
4.10 Traveltek shall use all reasonable endeavours to supply the Services in accordance with all applicable laws and regulations and with all reasonable skill and care and in accordance with the timetable of delivery as set out in the Order Form.
4.11 Where required by a Supplier, Traveltek shall provide the Client with a processing reference for each Transaction.
5. PAYMENT & DEPOSIT
5.1 On the Commencement Date, the Client shall pay a non refundable Deposit to Traveltek.
5.2 The balance of the Build Fee shall be due and payable by the Client prior to the Target Delivery Date. Traveltek shall not render the Website active and operational unless and until such time as the Build Fee is paid in full.
5.3 Within 5 Business Days of the end of the relevant month, Traveltek shall issue an invoice to the Client for Transaction Fees and, where applicable, Excessive Search Fees. Such invoice will include a report of all Transactions and details of searches made through the Website. The Client shall pay such invoice within 5 Business Days of receipt.
5.4 All payments by the Client shall be made without set-off or counterclaim and without any deduction and shall be made by electronic transfer BACS, cheque payment, direct debit or standing order to Traveltek’s bank account as specified in the Order Form or to such other account as Traveltek specifies to the Client from time to time. Where a Client pays the Fee in any other form than that set out in this clause 5.4, Traveltek reserves the right to charge the Client a premium.
5.5 The Fees are based on information available to Traveltek at the date of the Order Form and in the event of any change in the information and/or any other details relating to the access to the Interface and/or Bespoke Design at any time Traveltek shall be entitled to Fees to take into account such changes.
5.6 If the Client fails to pay any amount payable by it under this Agreement, Traveltek will be entitled but not obliged to charge the Client interest on the overdue amount from 5 Business Days following the due date up to the date of actual payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
5.7 Without prejudice to Traveltek’s rights under clause 5.6 and in addition to any other rights under this Agreement, where the Client has not paid the Transaction Fee and the Excessive Search Fee within 30 Business Days of the date of the relevant invoice, Traveltek shall be entitled to suspend the Client’s access to the Interface until such time as the Client has paid the relevant Transaction Fee and the Excessive Search Fee.
6. CLIENT’S OBLIGATIONS
The Client’s access to the Services is conditional upon it complying with the provisions of this Agreement and entering into an End User Licence Agreement if required by a Supplier.
6.1 The Client:
6.1.1 will only access, use, download, copy or reproduce or display content from the Interface for the duration of this Agreement solely for its business purposes;
6.1.2 will not use its access to the Interface in order to post, transmit, distribute, store or destroy any Data:
in a manner which will infringe any IPR of, or any trade secret belonging to, any person; or
which infringes the privacy of any other person; or
which is defamatory, obscene, threatening, abusive of another person or otherwise inappropriate.
6.2 The Client will co-operate with Traveltek in connection with Traveltek’s performance of the Services and will provide any assistance or information as may reasonably be required by Traveltek.
6.3 The Client agrees that it will not use the Services in a manner which would direct queries to one Supplier but carry out a Transaction with another Supplier.
6.4 The Client will not breach or attempt to breach the security of the Interface, including, without limitation:
6.4.1 accessing, or attempting to access any data, information or materials not intended for the Client;
6.4.2 attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorisation; or
6.4.3 attempting to interfere with service to any other client, host or network, including, without limitation, via means of submitting a virus to the Website, overloading, flooding, spamming, mailbombing or crashing.
6.5 The Client will have no right to modify, adapt, translate, reverse engineer, reverse assemble, decompile, disassemble or create derivative works based on any element of the Interface save to the extent permitted by law.
6.6 The Client will have no right to market, sell, pledge, disclose, encumber or in any way dispose of the Interface or make any copies, enhancements, modifications, versions, releases and/or portions thereof.
6.7 The Client must only use the Traveltek API interface for the sole construction of Business to Consumer (B2C) applications and not Business to Business (B2B) applications. The Traveltek API is licensed on a per URL basis and must not be used on any URL which has not been previously notified and agreed as part of the Order Form.
6.8 The Client is responsible (at its own cost) for ensuring that it has access to and uses the equipment necessary to allow Traveltek to provide the Services.
6.9 The Client is responsible for its activities and, by accepting these Services from Traveltek, is agreeing that the Client abides by the terms of this Agreement. If irresponsible or illegal activity takes place the Services may be subject to suspension, termination or other action as Traveltek may deem appropriate without notice. Subsequent actions such as re-enabling of the service or formal cessation of the Services shall be done in consultation with the Client.
6.10 Without prejudice to the other provisions of this Agreement, and on reasonable written notice to the Client, Traveltek reserves the right at its sole discretion to vary, enhance, modify, substitute or amend, at its own expense, any element of the Interface.
6.11 Traveltek will use reasonable endeavours to ensure that the Interface is operating and available at all times to the Client. However due to updating, necessary maintenance down-time, reliance on third parties and conditions outside of Traveltek’s control, Traveltek cannot guarantee uninterrupted, error-free, secure or timely availability of any part or all of the Interface. In the event of scheduled maintenance being required Traveltek shall not be liable for any costs, losses, expenses or damages resulting from or related to the unavailability of the Interface.
6.12 Traveltek cannot guarantee that any transmissions of information or Data to, from and via the Interface or via e-mail to or from Traveltek will not be altered, intercepted or tampered with and accepts no liability for loss or damage arising directly or indirectly as a result of such incident taking place.
6.13 The Client is solely responsible for any breaches of security affecting servers resulting from negligence in security details and problems within the Data.
7. DATA PROTECTION
7.1 To the extent that Traveltek processes any personal data on the Client’s behalf when performing its obligations under this Agreement, both parties will comply with all applicable requirements of the Data Protection Legislation. Without prejudice to this Clause 7.1, the Client warrants that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Traveltek for the duration and purposes of this Agreement.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and Traveltek is the data processor (where Data Controller, Data Processor, Data Subject and Personal Data have the meanings as defined in the Data Protection Legislation.
7.3 Without prejudice to the generality of clause 7.2, Traveltek shall, in relation to any Personal Data processed in connection with the performance by Traveltek of its obligations under this Agreement:
7.3.1 use reasonable endeavours to process that Personal Data on the written instructions of the Client unless Traveltek is required by the laws of any member of the European Union or by the laws of the European Union applicable to Traveltek to process Personal Data (Applicable Laws);
7.3.2 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;
7.3.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
7.3.4 assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.3.5 notify the Client on becoming aware of a Personal Data breach;
7.3.6 at the written direction of the Client and within a reasonable timeframe, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the Personal Data; and
7.3.7 maintain records and information to demonstrate its compliance with this clause 7.
7.4 The Client acknowledges and agrees that any Personal Data may be transferred or stored outside the EEA in order to carry out the Services and Traveltek’s other obligations under this Agreement, subject to Traveltek ensuring appropriate safeguards are put in place in relation to such transfer or storage.
7.5 The Client hereby consents to Traveltek appointing third-party processors of any Personal Data obtained under this Agreement in order to provide the Services. Traveltek confirms that, in such case, it will enter into a written agreement with that third-party processor which will contain terms which are substantially similar to those set out in this clause 7.
7.6 Traveltek will not disclose any Personal Data to a third party in any circumstances except at the
7.7 The Client will indemnify and keep Traveltek indemnified from and against any fines, costs, claims, damages or expenses arising from a breach of the warranties contained in this clause 7.
8. CONFIDENTIAL INFORMATION
8.1 Each party recognises that for the purposes of this Agreement it may have access to or otherwise receive Confidential Information. Each party agrees to use all reasonable endeavours not to divulge the other party’s Confidential Information to any third parties who do not need to know it, and to use all reasonable endeavours to prevent its disclosure to or access by any third party without the prior written consent of the disclosing party. Each party will ensure that any party who is given access to the Confidential Information of the other is made aware of the confidential nature of the information and undertakes to keep it confidential in accordance with terms no less strict than those set out in this clause 8.1.
8.2 The provisions of clause 8.1 shall not apply to the whole or any part of the Confidential Information to the extent that it is already in the other party’s possession prior to the Commencement Date (but not subject to obligations of confidentiality) or in the public domain other than as a result of:
8.2.1 a breach of this clause 8; or
8.2.2 enforced disclosure by reason of a statutory or regulatory requirement having the force of law or of any order of a court of competent jurisdiction.
8.3 The rights and obligations of the parties under this clause 8 shall subsist until such time that the Confidential Information enters the public domain, other than through a breach of this clause.
9. IPR AND IPR IDENTITY
9.1 The Client acknowledges that all proprietary rights in the Interface, including but not limited to all IPR, will at all times and for all purposes vest and remain vested in Traveltek, except that any IPR that has been licensed to Traveltek by a Supplier or any other third party will remain vested in that Supplier or third party.
9.2 Subject to clause 9.1, Traveltek acknowledges that all proprietary works in the Bespoke Design, including but not limited to all IPR, will at all times and for all purposes vest and remain vested in the Client and Traveltek hereby assigns all such present and future rights in such Bespoke Design to the Client. The Client hereby grants a non-exclusive, non-transferable licence to Traveltek to use the Client’s IPR in order to provide the Build Services.
9.3 Subject to the other provisions of this Agreement, Traveltek will indemnify and keep indemnified in full on demand the Client from and against all costs, liabilities and expenses (including reasonable legal costs) directly relating to, resulting from or arising out of any claims (actual or threatened) that the IPR in the Services, when used in accordance with the terms of this Agreement, infringes the IPR of any third party in the UK.
9.4 Subject to the other provisions of this Agreement, the Client will indemnify and keep indemnified in full and on demand Traveltek from and against all costs, liabilities and expenses (including, without limitation, legal costs) directly relating to, resulting from or arising out of:
9.4.1 any use of the Client Deliverables or anything supplied by the Client to Traveltek to allow Traveltek to provide the Services; or
9.4.2 any use which the Client and/or any of its employees, agents, consultants and/or subcontractors make of the Services which infringes the IPR of Traveltek or any third party who has licensed its IPR to Traveltek; or
9.4.3 any breach by the Client of the terms of this Agreement.
9.5 Where there is any claim or alleged claim against one party (“the Indemnifying Party”) by the other party (the “Innocent Party”) in respect of which clauses 9.3 and 9.4 apply, the Indemnifying Party will only indemnify the Innocent Party provided that in respect of any such claim or alleged claim the Innocent Party will:
9.5.1 as soon as is reasonably practicable and in any event no later than ten (10) Business Days after receipt of notification of the said claim, give to the Indemnifying Party written notice of the claim or alleged claim, and all details of the claim or alleged claim from time to time in the knowledge or possession of the Innocent Party;
9.5.2 not, without the prior written consent of the Indemnifying Party, admit liability or make any offer, promise, compromise, settlement, or communication with the third party in respect of the claim or alleged claim, such consent not to be unreasonably withheld or delayed;
9.5.3 use its reasonable endeavours to mitigate any loss arising out of such claim or alleged claim by any third party; and
9.5.4 render all reasonable assistance to the Indemnifying Party in connection with the defence of any such claim against the Innocent Party or, at the reasonable written request of the Indemnifying Party, surrender the conduct in the Indemnifying Party’s name of the defence, settlement and/or counterclaim of the claim or alleged claim (provided that nothing in this Agreement will prohibit the Innocent Party from issuing any press release in connection with any adverse publicity resulting from any such claim (but provided that such statement will not contain any admission of liability and will be agreed with the Indemnifying Party prior to release).
10.1 Traveltek warrants that it will use all reasonable endeavours to ensure the Interface (including the Bespoke Design) will at the Actual Delivery Date conform in all material respects to the Specification for a period of 90 Business Days from the Actual Delivery Date (“Warranty Period”). If, within the Warranty Period, the Client notifies Traveltek in writing of any defect or fault in Interface in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Client, or anyone acting with the authority of the Client, having amended the Interface or used it outside the terms of this Agreement, for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by Traveltek, Traveltek shall, at Traveltek’s option, do one of the following:
10.1.1 repair the Interface; or
10.1.2 terminate this Agreement immediately by notice in writing to the Client and refund the Fees paid by the Client as at the date of termination (less a reasonable sum in respect of the Client’s use of the Interface to the date of termination) on reinstatement of the Client’s access to the Interface,
provided the Client provides all the information that may be necessary to assist Traveltek in resolving the defect or fault, including sufficient information to enable Traveltek to re-create the defect or fault and provided that the above failure is not as a result of a Supplier failing to provide Traveltek with the capability to provide the Services for whatever reason.
10.2 To the extent permitted by law, all other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
11.1 Nothing contained in this Agreement will exclude or limit either party’s liability for death or personal injury caused by any act, omission or the negligence of that party or its officers, employees and sub-contractors in the course of their engagement under this Agreement, or any other liability the exclusion of which is expressly prohibited by statute. Each party will indemnify the other and keep the other fully and effectively indemnified on demand in respect of any injury to or death of any person caused by the negligent act or omission or wilful misconduct of that party, its employees, agents or sub-contractors.
11.2 Traveltek, nor any Supplier, will not be liable to the Client for:
11.2.1 any consequential, indirect or special losses, for any loss of profits, contracts, business, Data, revenue or goodwill suffered or incurred by the Client as a result of any breach of any warranty contained in this Agreement or of any of the provisions of this Agreement;
11.2.2 any loss or damage arising out of or in connection with any software, hardware, plant, machinery, media, cabling, telecoms equipment or other equipment not forming part of the Services; and/or
11.2.3 any or all costs, liabilities, losses, damages and expenses (including, without limitation, legal costs) which arise from or is consequent to any act, omission, default, negligence or breach of the provisions of this Agreement by the Client, its employees, agents, consultants and/or subcontractors.
11.3 Subject to clauses 11.1 to 11.2, the aggregate liability of Traveltek to the Client for any loss or damage howsoever arising in relation to this Agreement including (but not limited to) loss or damage arising out of breach of this Agreement, or breach of any term hereof whether express or implied, or breach of any common law or statutory duty (including but not limited to any duty in relation to delict) to take reasonable care or exercise reasonable skill will not exceed the total of the Build Fee plus any additional fees paid by the Client in the preceding twelve month period under this Agreement.
12. FORCE MAJEURE
Neither party will be liable for, or be considered to be in breach of or default under this Agreement as a result of any event of Force Majeure. Subject to the party so delaying promptly notifying the other party in writing of the reasons for the delay (and the likely duration of the delay) the performance of such party’s obligations will be suspended during the period that the circumstances persist and that party will be granted an extension of time for performance of its obligations equal to the period of the delay. If the delay continues for more than 90 Business Days, either party may terminate this Agreement immediately on giving notice in writing to the other, and neither party will be liable to the other for the termination except that the Client will pay Traveltek all Fees due up to the date of termination.
The Client shall ensure that it has adequate insurance cover with an insurer of good repute to cover claims under this Agreement or any other claims or demands which may be brought or made against it by any person suffering any injury, damage or loss in connection with this Agreement. The Client shall, upon request, produce to Traveltek its policy or policies of insurance, together with the receipt for the payment of the last premium in respect of each policy or produce documentary evidence that the policy or policies are properly maintained.
Any notice given under this Agreement will be in writing and should be delivered by prepaid first class post or by facsimile transmissions provided that the facsimile transmissions are confirmed within 2 Business Days by first-class mailed confirmation of a copy. Correctly addressed notices sent by first class mail will be deemed to have been delivered 2 Business Days after posting and correctly directed facsimile transmissions will be deemed to have been received instantaneously on transmission provided that they are confirmed as set out above. The parties’ addresses for notice shall be as specified in the Order Form.
15. DISPUTE RESOLUTION
The parties shall use all reasonable endeavours to resolve any and all disputes between the parties arising out of or relating to this Agreement. Failing such resolution, either party shall have the option of commencing litigation in the courts.
16.1 This Agreement may be terminated by Traveltek immediately on giving written notice if the Client fails to make payment of any Fees by the date such Fee is due to be paid to Traveltek.
16.2 Either party may terminate this Agreement immediately on giving written notice to the other party in the event that the other party:
16.2.1 is in material breach of any of its obligations under this Agreement and either that breach is incapable of remedy, or that that party has failed to remedy that breach within 15 Business Days after receiving written notice requiring it to do so;
16.2.2 is a company and ceases to trade (either in whole, or as to any part or division involved in the performance of this Agreement);
16.2.3 is a company and has made a proposal for a voluntary arrangement within Part I of Insolvency Act 1986 or of any other composition scheme or arrangement with, or assignment for the benefit of, its creditors; a shareholder’s meeting is convened for the purpose of considering a resolution that it be wound up or a resolution for its winding-up is passed (other than as part of, and exclusively for the purpose of, a bona fide reconstruction or amalgamation); a petition is presented for its winding up (which is not dismissed within 15 Business Days of its service) or an application is made for the appointment of a provisional liquidator or a creditor’s meeting is convened pursuant to s.98 of Insolvency Act 1986; a receiver, administrative receiver or similar officer is appointed over the whole or any part of its business or assets; an application is made either for the appointment of an administrator or for an administration order, an administrator is appointed, or notice of intention to appoint an administrator is given; or it is or becomes insolvent within the meaning of s.123 Insolvency Act 1986; or
16.2.4 is an individual and he dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation; or
16.2.5 is an individual and is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986;
16.2.6 has been subject to a Force Majeure Event for a continuous period of more than 90 Business Days.
16.3 Any termination of this Agreement will be without prejudice to any other rights or remedies of either party under this Agreement or at law and will not affect any accrued rights or liabilities of either party at the date of termination nor shall termination affect any rights or obligations of the parties which due to the nature thereof are due to be observed or performed after such termination.
17. CONSEQUENCES OF TERMINATION
17.1 Upon the expiration or termination of this Agreement for whatever reason;
17.1.1 all rights granted to the Client under this Agreement shall cease and the Client shall cease all activities authorised by this Agreement;
17.1.2 the Client shall immediately pay to Traveltek any sums due to Traveltek under this Agreement; and
17.1.3 each of the parties will return to the other (or destroy, if instructed) all Confidential Information of the other party in its possession or control at the date of termination, together with any copies.
18.1 Subject to clause 8, Traveltek shall be entitled to disclose the name of the Client as a user of the Services and shall be entitled to issue any press release or other public document (whether on the Traveltek website or otherwise) or make any public statement publicising that the Client uses the Services.
18.2 From time to time and at its sole discretion, Traveltek shall be entitled to display its logo and any other branding on the Website.
19. JOINT AND SEPARATE LIABILITY
Unless expressly provided otherwise in this Agreement any parties specified in the Order Form as being responsible for fulfilling the Client’s obligations under this Agreement shall be jointly and severally liable along with the Client for their respective obligations and liabilities arising under this Agreement.
The Client is not permitted to assign or novate the benefit and/or burden of this Agreement without Traveltek’s prior written consent. Traveltek is entitled to assign, novate and/or sub-contract its obligations under this Agreement without the prior consent of the Client.
21. SEVERABILITY AND WAIVER
If any provision of this Agreement is judged to be illegal or unenforceable by a court of competent jurisdiction or other competent authority, the provision will be severed from the remainder of this Agreement which will continue in full force and effect. No failure to exercise or delay by either party in exercising any right or remedy under this Agreement or at law will operate as a waiver of the right or remedy or a waiver of any other rights and remedies.
The relationship between the parties is as set out in this Agreement and no employment, joint venture, partnership or agency relationship will be deemed to subsist between the parties and neither will have the authority to bind the other.
23. ENTIRE AGREEMENT
This Agreement together with the Order Form, constitutes the entire agreement between the parties relating to the matters with which it deals and supersedes all previous communications, representations or agreements either verbal or written between the parties in relation to the subject matter of this Agreement and no agreement or understanding varying or extending the same will be binding upon the parties unless in writing signed by authorised representatives and specifically referring to this Agreement.
This Agreement will be governed by and interpreted in accordance with Scots law. The parties hereby submit to the exclusive jurisdiction of the Scottish Courts.
25. COMPLAINTS PROCEDURE
In the unlikely event a complaint of service these should be directed initially to your Account Manager in writing, failing to reach a satisfactory response this should then in writing be escalated to our Deputy Managing Director (Head Office) ultimately and regrettably failing on all previous attempts the Managing Director (Head Office) should be contacted in writing.
26. DOMAIN NAME REGISTRATIONS
Registrations will be carried out only on full completion of our domain registration form, prices quoted at time on the domain name registration form are fixed should any price changes be required to be applied 90 days notice will be given prior to renewal date.