This Supplier Agreement (the “Agreement”) is by and between you (“Supplier”) and EIA Groups. trading both as “EIA HOLIDAYS ” and as “EIAGROUP”, on its own behalf and on behalf of other companies in the EIA group including without limitation EIA Groups Limited, EIA Global Enterprise Sdn. Bhd.(individually and collectively, “EIA Holidays “). All defined terms used herein shall have the meaning accorded to such terms in the Agreement.
By clicking the “I Accept” button, Supplier accepts this Agreement and agrees to the attached EIA Holidays Terms and Conditions and the Attachments, all of which are incorporated into this Agreement. If Supplier is entering into this Agreement on behalf of a company or other legal entity, Supplier represents that it has the authority to bind such entity to these terms and conditions, in which case the term “Supplier” shall refer to such entity. Please carefully read the following terms and conditions and do not agree to become a EIA Holidays supplier until after doing so. By agreeing to become a EIA Holidays supplier and providing Supplier Products for EIA Holidays ‘resale and distribution through EIA Holidays ‘Distribution Channel, Supplier agrees to the terms of this Agreement, including without limitation all obligations imposed on Supplier hereunder. If Supplier does not wish to so agree, or does not have the authority to enter into this Agreement, do not register to become a EIA Holidays supplier and do not provide EIA Holidays with Supplier Products for resale and distribution through EIA Holidays ’ Distribution Channel.
Overview: Supplier agrees to provide certain tours, activities and other travel-related destination services (“Products”) that EIA Holidays may market and distribute through various owned, affiliated, related and third party online and offline marketing and travel distribution channels (“Distribution Channels”) for purchase (i.e., booking) by end customers (“Customers”), all as described further in this Agreement. Therefore, for good and valuable consideration, the receipt and sufficiency of which they each acknowledge, EIA Holidays and Supplier agree to be bound by the terms and conditions set forth below.
In addition to the “EIA Holidays Terms and Conditions” set forth below, the following provisions shall be part of this Agreement:
- Currency: All amounts in this Agreement are expressed in the currency selected by Supplier from the list of available currencies presented to Supplier during the EIA Holidays online account registration process.
- Term; Termination: This Agreement is effective as of the date on which Supplier accepted this Agreement (the “Effective Date”) and will remain in effect thereafter, unless terminated in accordance with this Agreement. Either party may terminate this Agreement (a) upon 30 days’ written notice to the other of its intent to terminate this Agreement, (b) immediately upon written notice to the other if such other party commits an irremediable breach of this Agreement or commits a remediable breach and fails to correct such breach within 15 days following written notice specifying such breach, or (c) immediately upon an event of bankruptcy by Supplier or if Supplier ceases to do business in the ordinary course. Without prejudice to the rights of termination set out hereunder, EIA Holidays may elect to immediately take any one or more of the following steps either in lieu of, or as a precursor to, its termination of the Agreement (defined collectively as “Deactivation”): (i) deactivation of Supplier’s EIA Holidays account; (ii) removal of Supplier from the Distribution Channels; and/or (iii) removal of any or all of Supplier’s Product listings. References in this Agreement to rights and obligations of a party in connection with “termination” shall be deemed to include Deactivation, and post-termination obligations shall apply equally to Supplier for the duration of any such Deactivation.
Supplier will fulfil all Product purchases made prior to termination or expiration of this Agreement unless requested otherwise by EIA Holidays. Notwithstanding the foregoing, EIA Holidays reserves the right in its sole discretion to cancel pending Product bookings in circumstances where EIA Holidays believes that it is in the best interests of Customers. Upon any termination or expiration of this Agreement, Supplier will immediately cease all access to and use of the EIA Holidays Technology (defined in Attachment 2) and other products, services, technology, content, and/or materials provided by EIA Holidays to Supplier under this Agreement and Supplier shall cease to have any right to make Supplier’s Products available through EIA Holidays ‘Distribution Channels.
- Attachments. The following attachments to this Agreement (“Attachments”) are incorporated into and made part of this Agreement by this reference:
- Attachment 1 – Payment Terms
- Attachment 2 – Operational Procedures and Technology
- Attachment 3 – Insurance
The parties may mutually agree to and enter into additional written attachments during the Term, and all such attachments shall be executed by a duly authorized representative of each party upon which such attachments will be deemed incorporated by reference into this Agreement and subject to all terms and conditions hereof.
- Notices: Unless otherwise provided herein, all notices under this Agreement shall be in writing and shall be delivered to EIA Groups Inc. dba EIA Holidays , at 27-1,Baverly Tower, Plaza Medan Putra Business Centre 55220, ATTN: General Counsel and to Supplier at the address provided to EIA Holidays during the online account registration process. All such notices shall be deemed to have been given upon receipt. Notwithstanding the foregoing, EIA Holidays may provide notices to Supplier via email, in connection with requesting Product rate information from Supplier, or in EIA Holidays ‘other interactions with Supplier, which notices will be deemed to be given when sent.
EIA HOLIDAYS TERMS AND CONDITIONS
- 1. RATES, FEES, PAYMENTS.
Supplier represents and warrants that the net rates (“Net Rates”) offered to EIA Holidays are the lowest Net Rates offered by Supplier to any third party marketing and promoting its Products. If Supplier offers Products or enters into an agreement to provide Products through or to a third party (including without limitation through any other distribution channel, such as coupons, deal-of-the-day or flash sale websites) for a lower price or rate or under a lower pricing or rate arrangement or formula (including without limitation for no fee) than the then-current Net Rates provided to EIA Holidays , then Supplier will promptly notify EIA Holidays and provide to EIA Holidays such lower price or rate or pricing or rate arrangement or formula retroactively as of the date first provided to such other third party. If Supplier fails to comply with this provision, EIA Holidays shall have the right, in its sole discretion, to either suspend Supplier or terminate this Agreement with fifteen (15) days’ prior written notice to Supplier.
For each Product, Supplier will provide EIA Holidays the following rates: Net Rate and suggested retail rate. Net Rates will include all applicable per person fees and all applicable taxes and other charges. Supplier shall be solely responsible for the payment of any and all applicable taxes, including without limitation value added tax, sales and use tax, and any other taxes applicable to the sale of the Products (“Taxes”) as calculated based on the suggested retail rate. EIA Holidays has the right to set the actual retail rate of each Product displayed via the Distribution Channels. The Net Rates provided by Supplier will be valid until such time as (a) Supplier modifies such Net Rates through the EIA Holidays Technology, or (b) where EIA Holidays has agreed to permit Supplier to modify Net Rates in any manner other than through use of the EIA Holidays Technology, upon written notice to EIA Holidays, delivered in any manner previously approved by EIA Holidays. EIA Holidays will have up to two (2) weeks to implement any modification to Net Rates regardless of the manner that such modification is effected, and EIA Holidays shall pay the prior Net Rate for all Product bookings during this time period.
EIA Holidays will make any payments of Net Rates owed to Supplier under this Agreement pursuant to the payment terms set forth in Attachment 1. With respect to any amount to be paid by EIA Holiday sunder this Agreement, EIA Holidays may set-off against such amount any amount that Supplier is obligated to pay to EIA Holidays or for which Supplier is required to reimburse EIA Holiday sunder this Agreement.
Supplier shall not use the Distribution Channels to process a payment transaction or to transfer funds between Supplier and a Customer unless such activity results directly from that Customer’s purchase of a Product through the Distribution Channels. Furthermore, Supplier shall not engage in any form of payment fraud including but not limited to fraud by use of payment methods such as credit card, debit card, PayPal, Apple Pay, and Android Pay. If EIA Holidays has reason to believe that Supplier is in breach of this provision of the Agreement, EIA Holidays may terminate this Agreement and withhold any outstanding payments to Supplier. EIA Holidays also reserves the right to terminate this Agreement in the event that an excessive number of payments are the subject of a chargeback or other payment reversal for any reason and, in such circumstances, EIA Holidays may withhold all outstanding payments to Supplier. For the avoidance of doubt, liability in respect of Customer chargebacks lies with Supplier and not EIA Group. EIA Holidays may apply any or all withheld funds towards the costs incurred by EIA Holidays as a result of Supplier’s fraudulent activity and/or excessive chargebacks (as applicable) without prejudice to any other rights and remedies EIA Holidays may have against Supplier in connection with the same.
- 2. AVAILABILITY; PRODUCT UPDATES.
Supplier will follow the operational procedures set forth in Attachment 2, including without limitation those with respect to Product bookings, changes, and availability, and any updates or revisions to Attachment 2 as may be provided by EIA Holidays to Supplier from time to time. EIA Holidays will use reasonable efforts to give Supplier at least ten (10) business days’ prior written notice of any updates or revisions to Attachment 2.
For each Product that Supplier offers (including without limitation to any third party through coupons, deal-of-the-day or flash sale websites, or any other distribution channel), Supplier will make that Product available to EIA Holidays for marketing and distribution through the Distribution Channels. Supplier will ensure that all Products that EIA Holidays markets and distributes through the Distribution Channels are available for booking by Customers, unless EIA Holidays receives proper notice in advance from Supplier in accordance with the procedures set forth in Attachment 2. For the avoidance of doubt, the decision as to whether to list any Product of Supplier on the Distribution Channels shall at all times remain within the sole discretion of EIA Holidays.
If a Product is booked by a Customer via the Distribution Channels, Supplier will follow the Customer redemption procedures set forth in Attachment 2.
If Supplier changes any element of a Product after a Customer has booked the Product but before such Customer has started to receive the Product, Supplier will offer such Customer an alternative Product of the same or higher quality as the Product originally booked and Supplier will accommodate such Customer to the Customer’s reasonable satisfaction. If a Customer cannot be accommodated to the Customer’s reasonable satisfaction, Supplier agrees that Customer may cancel its booking and EIA Holidays may process a refund or refunds for that Customer. In this situation, Supplier will not be owed (and EIA Holidays is not obligated to pay) any amount(s) for that booked Product, and any amount(s) already paid for such booked Product may be adjusted on any subsequent payment owed by EIA Holidays. EIA Holidays reserves the right to charge Supplier reasonable fees related to the foregoing, including but not limited to merchant and customer service fees.
If Supplier cancels a Product or no longer makes a Product available to a Customer (e.g., a sold-out date) after a Customer has booked the Product but not yet received the Product, Supplier will accommodate such Customer to the Customer’s reasonable satisfaction. If a Customer cannot be accommodated to the Customer’s reasonable satisfaction, Supplier agrees that EIA Holidays may process a refund or refunds for that Customer. In this situation, Supplier will not be owed (and EIA Holidays is not obligated to pay) any amount(s) for that booked Product, and any amount(s) already paid for such booked Product may be adjusted on any subsequent payment owed by EIA Holidays. EIA Holidays reserves the right to charge the Supplier reasonable fees related to Supplier’s cancellation of or failure to make available the Product, including but not limited to merchant and customer service fees.
- 3. CUSTOMER CANCELLATIONS.
Supplier will not directly accept Customer cancellations for Products purchased via the Distribution Channels. All cancellations for purchased Products must be made by the Customer directly through EIA Holidays within the applicable cancellation time period, as set forth in Attachment 2. EIA Holidays has no obligation to provide refunds to Customers who do not contact EIA Holidays to cancel within the applicable cancellation time period. In the event of a Customer cancellation due to a Force Majeure Event (defined in Section 15 below), EIA Holidays shall not be required to pay the Net Rate for the Product so long as EIA Holidays has received sufficient evidence from the Customer that the Force Majeure Event has prevented Customer from using the Product.
- 4. CUSTOMER CONTACT; CUSTOMER SERVICE.
If Supplier needs to contact a Customer in connection with providing Products purchased by such Customer, Supplier will follow the procedures set forth in this Agreement, including without limitation Attachment 2, and such other reasonable EIA Holidays processes and procedures as may be communicated by EIA Holidays to Supplier from time to time.
Supplier will ensure a smooth customer service process, including answering any Customer complaints (including, without limitation, refund requests) in writing (e.g., by email or an interface made available by EIA Holidays) within 72 hours after complaint submission. EIA Holidays reserves the right at any time to respond to Customer complaints, including by contacting Customers directly; provided, however, that prior to resolving the complaint and/or providing compensation to Customers (which EIA Holidays reserves the right to do in its sole discretion), EIA Holidays will first attempt to contact Supplier to discuss the complaint. If EIA Holidays provides compensation to a Customer in connection with a Customer complaint, Supplier will not be owed (and EIA Holidays is not obligated to pay) the Net Rate pertaining to the booking(s) at issue. Furthermore, any sums that (a) EIA Holidays may have already paid to Supplier in respect of such booking(s), and/or that (b) EIA Holidays may have made to a Customer by way of compensatory payment (up to the full amount paid by the Customer for such booking(s)) may (along with any other amounts expressly agreed to by the Supplier) be adjusted on any subsequent payment made to Supplier by EIA Holidays.
After a Customer has purchased a Product, Supplier will not, without EIA Holidays ’prior consent, contact such Customer for purposes of marketing or selling tours, activities or other travel-related destination services and/or products to such Customer or for any other purpose other than to fulfil the Product purchased or to answer a Customer complaint.
- 5. INSURANCE.
Supplier will comply with the insurance requirements set forth on Attachment 3.
- 6. DISTRIBUTION CHANNELS.
EIA Holidays will have sole discretion over the Distribution Channels utilized and the Product placement within such Distribution Channels. EIA Holidays will be responsible for any applicable travel agents’ commissions and other third-party intermediaries’ fees for sale of Products through the Distribution Channels.
- 7. SUPPLIER CONTENT AND MATERIALS.
Supplier hereby grants and agrees to grant to EIA Holidays the nonexclusive, perpetual, irrevocable, transferable, sublicense able (through one or more tiers), worldwide right (but not the obligation) in its sole discretion to reproduce, modify, reformat, create derivative works based upon, publicly display and perform, and otherwise use any and all text, images, videos, and other content and materials provided by Supplier (“Supplier Content”) (i) to advertise, market, promote, and distribute Products on or through the Distribution Channels, (ii) to advertise, market and promote destinations and activities on or through the Distribution Channels and to market and promote the Distribution Channels generally, provided, however, that EIA Holidays shall have no right to use the Supplier Content to market or promote competing products, and (iii) to otherwise perform EIA Holidays ’obligations and exercise EIA Holidays ’rights under this Agreement. Supplier represents, warrants and covenants that (a) Supplier owns, or has rights sufficient to grant the rights granted to EIA Holidays in this Agreement with respect to, all Supplier Content provided to EIA Holidays , (b) Supplier Content will be accurate and complete and will not be misleading or fraudulent, and (c) Supplier Content (and EIA Holidays ’exercise of its rights with respect to Supplier Content) does not and will not infringe, violate or misappropriate any third party’s proprietary or intellectual property rights, including without limitation any copyright rights or trademark rights or rights of privacy or publicity. Supplier hereby acknowledges and agrees that EIA Holidays shall own all right, title and interest in and to any derivative works of the Supplier Content created by or on behalf of EIA Holidays, whether prior to or after the Effective Date, and hereby assigns to EIA Holidays any and all right, title, or interest that Supplier may have to such derivative works.
- 8. AGENCY APPOINTMENT.
In certain markets, EIA Holidays and/or its third-party sales channel partners (“Channel Partners”) must, in order to comply with applicable law and/or minimize Taxes, operate as Supplier’s agent with respect to the payment processing services applicable to the sale of Products via the Distribution Channels, and in other markets EIA Holidays and/or Channel Partners must be additionally authorized to operate more broadly as Supplier’s general sales agent, with respect to any or all of the other services authorized to be provided by EIA Holidays and/or Channel Partners applicable to the marketing and sale of Products under this Agreement. Supplier therefore appoints and authorizes EIA Holidays , in any markets deemed appropriate by EIA Holidays , to act and operate as Supplier’s agent and further authorizes EIA Holidays to appoint and authorize Channel Partners to act and operate as Supplier’s agent with respect to the marketing and sale of Products via the Distribution Channels, as follows:
Limited Payment Collection Agent. Supplier hereby appoints EIA Holidays as its limited payment collection agent solely for the purpose of accepting funds from Customers on behalf of Supplier. As such, EIA Holidays will be responsible for collecting funds from Customers for Products purchased by Customers via the Distribution Channels. EIA Holidays will be responsible for any applicable related merchant fees incurred by EIA Holidays in collecting funds from Customers. Supplier agrees that payment made by a Customer to EIA Holidays through the Distribution Channels shall be considered the same as a payment made directly to Supplier, and Supplier will provide the Products to Customers in the agreed-upon manner as if Supplier had received the Customers’ funds directly. Supplier acknowledges and agrees that EIA Holidays accepts payments from Customers as Supplier’s limited payment collection agent and that EIA Holidays ‘obligation to pay Supplier is subject to and conditional upon successful receipt of the associated payments from Customers. As such, EIA Holidays shall not be liable to Supplier for amounts that have not been successfully received by EIA Holidays from Customers or for amounts that are received by EIA Holidays but are subsequently the subject of a chargeback or other payment reversal. In accepting appointment as the agent of Supplier, EIA Holidays assumes no liability for any acts or omissions of the Supplier.
General Sales Agent. In addition to the limited payment collection agent appointment above, in markets where EIA Holidays deems it appropriate, Supplier also irrevocably appoints and authorizes EIA Holidays to act as its general sales agent and authorizes EIA Holidays to appoint Channel Partners as Supplier’s general sales agent for the purpose of concluding binding contracts directly between Supplier and Customers for the sale, supply or provision of Products via the Distribution Channels. In connection with such appointment and authorization, EIA Holidays and Channel Partners may hold themselves out to Customers as Supplier’s agent for the sale, supply or provision of Products and may exercise any rights conveyed to EIA Holidays under this Agreement applicable to the marketing and sale of Products via the Distribution Channels, acting as Supplier’s agent. Supplier further approves the Terms of Sale Agreement between Supplier and Customers at the following link: http://eiaholidays.com/supplieragreement, as such may be updated by EIA Holidays from time to time, that will be used by EIA Holidays and Channel Partners as the contract governing the sale of Products to Customers via the Distribution Channels, when EIA Holidays or Channel Partners are acting as Supplier’s general sales agent in accordance with this Section.
- 9. SUPPLIER CONDUCT; NO SUBCONTRACTORS.
Supplier represents, warrants and covenants that: (a) Supplier has and maintains all registrations, licenses, permits, approvals, and authorizations applicable to Supplier’s business and provision of Supplier’s Products; (b) Supplier will ensure that Supplier’s activities, operations, products and services (and Supplier’s provision of the foregoing, including without limitation in connection with providing Products to Customers) are operated and provided in good faith and in accordance with standards consistent with best practices in the tours and activities industry and, if appropriate or recommended based on the nature of Supplier’s Products, Supplier will perform background checks of its personnel consistent with best industry practices; (c) Supplier’s personnel will be properly trained, have all necessary skills to deliver the Products, and will deliver the Products in a professional manner consistent with best industry practices; (d) Supplier will comply with all applicable international, federal, state and local laws and regulations (including fire, health and safety procedures and consumer protection and data privacy laws); and (e) Supplier will not do or omit to do any act (including by virtue of its provision of any Supplier Content or its offer and/or delivery of any Product) that, in EIA Holidays ’sole opinion, may be likely to cause EIA Holidays or the Distribution Channels to be disparaged, defamed, discredited or brought into disrepute. EIA Holidays may conduct and/or use a third-party provider to conduct checks to verify Supplier’s identity. EIA Holidays may also ask for proof to establish the existence of a Product, and/or proof of authority to advertise and provide such Product. If EIA Holidays suspects that Supplier has supplied false information, Supplier agrees that EIA Holidays is entitled to carry out and/or procure further identity checks and due diligence on Supplier, or to require Supplier to prove the existence of a Product. If requested to do so, Supplier agrees to promptly supply to EIA Holidays such proof of identity or of a Product’s existence as EIA Holidays requests. Third-party providers EIA Holidays uses to assist it in these checks may use the details Supplier provides in connection with particulars on any database (public or otherwise), to which they have access. Supplier may not subcontract or otherwise transfer any of its rights or obligations under this Agreement; provided, however that Supplier may subcontract delivery of the Products with the prior written consent of EIA Holidays (which consent may be provided by EIA Holidays by e-mail). In the event the Supplier uses a subcontractor, Supplier will nevertheless remain responsible for the satisfactory delivery of Products and shall be liable for such subcontractor’s compliance with the terms and conditions of this Agreement and any breach or failure of such subcontractor to comply herewith. If EIA Holidays believes that Supplier is in breach of this Agreement (including without limitation Supplier’s representations, warranties and covenants in this Agreement), EIA Holidays may, without limiting its other remedies, terminate this Agreement. If EIA Holidays terminates this Agreement pursuant to the foregoing, EIA Holidays may (again, without limiting EIA Holidays ’other remedies) require Supplier to (and Supplier will) fulfil all Product purchases made prior to termination, or assist EIA Holidays in procuring alternate suppliers to fulfil such Product purchases in pursuance of the preservation of EIA Holidays ’reputation and goodwill (in which case (i) Supplier will not be owed, and EIA Holidays is not obligated to pay, any fees for such Product, (ii) any amounts already paid for such Product will be promptly refunded by Supplier to EIA Holidays; and (iii) Supplier shall pay to EIA Holidays on demand a sum equivalent to the difference between the alternate supplier’s suggested retail rate and Supplier’s Net Rate (if the former is higher) in respect of such Product.
- 10. PUBLICITY; TRADEMARKS.
Supplier grants to EIA Holidays the right to, and the right to authorize its Distribution Channels to, use and display Supplier’s and its Products’ names, logos, marks and trademarks and to display any third party names, logos, marks and trademarks used by Supplier with respect to the Products (collectively, all of the foregoing the “Marks”), in each case for the purposes of advertising the availability of the Products and marketing and promoting the Products through the Distribution Channels. Further, EIA Holidays may issue a press release, advertisement or public statement that references Supplier, the relationship of the parties, and the Supplier’s Products without Supplier’s prior written consent if such press release, advertisement or public statement includes Supplier in a list of other companies that have similar relationships with EIA Holidays. Supplier represents and warrants that it has all rights and licenses required to grant EIA Holidays the rights granted in this Section 10. Except as expressly permitted by the foregoing, neither party will issue a press release, advertisement or public statement concerning this Agreement, the contents of this Agreement or the relationship of the parties without the prior written consent of the other party.
- 11. CONFIDENTIALITY; PRIVACY.
Any information disclosed by or on behalf of one party to the other party during the term of this Agreement that is identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, including, without limitation, all information pertaining to Net Rates, commissions and margins, the amount of Supplier Remittances, Distribution Channels, EIA Holidays Technology, and the terms of this Agreement, are “Confidential Information.” The party receiving Confidential Information of the disclosing party will maintain safeguards against its destruction, loss, alteration or disclosure, which safeguards shall be consistent with industry best practices and no less rigorous than the protections afforded by the receiving party to its own proprietary information and will not, during or after the term of this Agreement, (a) use any such Confidential Information for any purpose other than to perform the receiving party’s obligations or exercise the receiving party’s rights under this Agreement and (b) disclose any such Confidential Information to any third party, other than disclosures made by EIA Holidays to its Distribution Channels pursuant to the activities contemplated in this Agreement. Notwithstanding the foregoing, the obligations of this Section do not apply to information which is: (i) generally available to the public, without any obligation of confidentiality, other than by a breach of this Agreement by the receiving party; (ii) rightfully received by the receiving party from a third party without any obligation of confidentiality; (iii) independently developed by the receiving party without reference to or reliance on the other party’s Confidential Information; or (iv) generally made available to third parties by the disclosing party without restriction on disclosure. Upon termination of this Agreement, or upon the disclosing party’s earlier request, the receiving party will return all of the disclosing party’s Confidential Information in the receiving party’s possession or under the receiving party’s control and will cease all use of such Confidential Information.
- 12. MUTUAL REPRESENTATIONS AND WARRANTIES; DISCLAIMER OF WARRANTIES.
Each party represents and warrants to the other party that (a) the representing and warranting party has the full power and authority to enter into this Agreement and to perform its obligations hereunder and (b) the execution, delivery and performance of this Agreement does not and will not contravene or constitute a default under, and is not and will not be inconsistent with, any judgment, decree or order, or any contract, agreement, or other undertaking, applicable to such party. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT TO THE EXTENT AS MAY BE SET FORTH IN THIS AGREEMENT OR A SEPARATE WRITTEN AGREEMENT BETWEEN THE PARTIES, EIA HOLIDAYS PROVIDES THE DISTRIBUTION CHANNELS AND ANY OTHER SERVICES, TECHNOLOGY AND MATERIALS UNDER THIS AGREEMENT “AS IS” AND EIA HOLIDAYS EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, WITH RESPECT TO ANY OF THE FOREGOING OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON- INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
- 13. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTE OR OTHERWISE) FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES OF ANY KIND, OR FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS RESULTING FROM INTERRUPTION OF BUSINESS OR LOSS OF USE OR DATA, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT, HOWEVER CAUSED, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EIA HOLIDAYS ’LIABILITY TO SUPPLIER FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE NET RATE PAID BY EIA HOLIDAYS TO SUPPLIER IN THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
THE FOREGOING LIMITATIONS SHALL NOT APPLY TO SUPPLIER’S BREACH OF SECTIONS 5 (Insurance), 7 (Supplier Content and Materials), 8 (Agency Appointment), 9 (Supplier Conduct; No Subcontractors), 11 (Confidentiality; Privacy) OR SUPPLIER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14 (Indemnification).
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING PROVISIONS REPRESENT A REASONABLE ALLOCATION OF RISK AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH PROVISIONS.
- 14. INDEMNIFICATION.
EIA Holidays will (i) provide prompt written notice to Supplier of any claim giving rise to the indemnification obligation, and (ii) if requesting defence by Supplier, provide reasonable cooperation and assistance with respect to the claim (at Supplier’s request and expense) and permit Supplier to assume sole control over the defence and settlement of the claim (provided, however, that EIA Holidays shall have the right to approve counsel selected by Supplier, such approval not to be unreasonably withheld or delayed) and, if Supplier fails to promptly assume the defence and settlement of the claim after EIA Holidays ’request, EIA Holidays may do so at Supplier’s sole cost and expense. Neither party will compromise or settle the claim without the other party’s prior written consent, which will not be unreasonably withheld or delayed.
- 15. FORCE MAJEURE.
If either party is prevented from performing any of its duties and obligations hereunder in a timely manner by reason of any act of God, strike, labour dispute, earthquake, fire, flood, public disaster, equipment, software or technical malfunctions or failures, power failures or interruptions, acts of terrorism, war, civil unrest, riots or any other reason beyond its reasonable control (each a “Force Majeure Event”), such party will be excused from performance of any such duty or obligation for the period during which such condition exists.
- 16. CHANGES TO THE AGREEMENT.
EIA Holidays reserves the right to update or otherwise make changes to this Agreement (including to any Attachment or document referenced herein) from time to time on at least thirty (30) days’ notice (“Notice Period”), which notice EIA Holidays will provide to Supplier by any reasonable means (including via email, via the EIA Holidays Technology, in connection with requesting Product rate information from Supplier, or other electronic or other interactions with Supplier). If Supplier objects to the revised version of this Agreement (or any Attachment or document), Supplier will within the Notice Period notify EIA Holidays of Supplier’s objection. If Supplier so notifies EIA Holidays , the revised version will not apply to Supplier and the parties will negotiate in good faith to resolve Supplier’s objection within sixty (60) days after EIA Holidays first provided notice of the revised terms. If the parties do not reach agreement within such sixty (60) day period, at EIA Holidays ’option in EIA Holidays ’sole discretion, this Agreement will continue in accordance with its terms in effect prior to such notice or may be terminated by EIA Holidays. If Supplier does not notify EIA Holidays of Supplier’s objection during the Notice Period, Supplier’s continued access to and/or use of EIA Holidays Technology and other products, services and materials provided by EIA Holidays to Supplier under this Agreement after the effective date of such revised version of this Agreement will be deemed Supplier’s acceptance of such revised version; however, changes to this Agreement will not apply to any dispute between the parties based on a claim filed before the effective date of the changes. Except as set forth in this Section, no amendment, modification or rescission to this Agreement or any Attachment or document will be effective unless it is made in writing and signed by both parties.
- 17. DISPUTE RESOLUTION.
Any controversy, claim or dispute arising out of or relating to this Agreement, or the obligation of a party hereunder, will be settled exclusively in accordance with this Section, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory. Each party will nominate a representative to negotiate in good faith to promptly resolve the controversy, claim or dispute for a period of up to fourteen (14) days following notification of the controversy, claim or dispute. In the event the controversy, claim or dispute has not been settled between the nominated representatives then, unless EIA Holidays designates an alternative method of dispute resolution that the parties shall follow (which it may do in its sole discretion), the parties will submit to final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury and, in such circumstances, the parties each waive the right to trial by a jury. Supplier agrees that any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and Supplier is agreeing to give up the ability to participate in a class action. Any arbitration will be conducted in accordance with the currently prevailing commercial arbitration rules of the American Arbitration Association. The parties agree to abide by any decision and award rendered in the proceedings. The decision and award will be final and conclusive and may be entered in any court having jurisdiction thereof. The English language version of this Agreement shall govern and all proceedings conducted shall be conducted in English. Any arbitration hearing will be held in San Francisco, California. The applicable governing law will be as set forth in Section 19 (provided that with respect to arbitrability issues, federal arbitration law will govern). The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
- 18. ANTI-CORRUPTION.
It is the intent of the parties that no payments or transfers of anything of value shall be made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or any improper advantage. Supplier shall comply with all international anti-corruption laws, such as the United States Foreign Corrupt Practices Act and the United Kingdom Bribery Act, and that, with respect to Supplier’s performance of any of its activities under this Agreement:
(a) No portion of any fees paid or payable by EIA Holidays to Supplier will be paid to, or accrued directly or indirectly for the benefit of, any person, firm, corporation or other entity other than Supplier.
(b) Supplier has not, and will not at any time, directly or indirectly, pay, offer, authorize or promise to pay, offer, or authorize the payment of, any monies or any other thing of value to: (i) any officer or employee of any government, department, agency or instrumentality thereof; (ii) any other person acting in an official capacity for or on behalf of any government, department, agency or instrumentality thereof; (iii) any political party, political committee, or any official or employee thereof; (iv) any candidate for political office; (v) any other person, firm, corporation or other entity at the suggestion, request or direction of, or for the benefit of, any government officer or employee, political party, political committee, or official or employee thereof, or candidate for political office; or (vi) any other person, firm, corporation or other entity with knowledge that some or all of those monies or other thing of value will be paid over to any officer or employee of any government department, agency or instrumentality, political party, political committee, or officer or employee thereof, or candidate for political office.
(c) At EIA Holidays ’request, Supplier shall provide a certification to EIA Holidays that Supplier is in compliance with the foregoing.
- 19. GENERAL.
On a monthly basis, EIA Holidays (or its designee) will pay Supplier a “Supplier Remittance” in an amount equal to the sum of the Net Rate for each Product purchased via the Distribution Channels and delivered by Supplier to Customers, less any adjustments, including for cancellations or refunds provided to Customers. EIA Holidays will make payment by Electronic Funds Transfer (EFT) within twenty-one (21) business days after the end of the Settlement Period (defined below). In calculating such payment amount, the Net Rate will be based on the lowest applicable rate at the time the Customer booked the Product in accordance with Section 1 of this Agreement. In the event that the Supplier Remittance payable to Supplier is less than fifty United States dollars (US$50) or its equivalent in a given Settlement Period (the “Minimum Remittance Threshold”), EIA Holidays reserves the right to withhold payment of the Supplier Remittance until the aggregate Supplier Remittance meets or exceeds the Minimum Remittance Threshold.
Supplier will notify EIA Holidays of any billing discrepancies by email within forty-five (45) days after the date on which the Product was provided by Supplier to the Customer or thirty (30) days after receipt of remittance advice, whichever is later. After such period, adjustments for billing discrepancies will be made in EIA Holidays ’sole discretion. Without prejudice to the foregoing, no dispute may be raised, and no claim, action or proceedings may be brought, against EIA Holidays in respect of any payment-related matter (including but not limited to matters relating to Net Rates and Supplier Remittances after (a) the expiry of one (1) year from the date on which the payment at issue is due (or alleged to be due) by EIA Holidays , or (b) where more than one payment is at issue, the expiry of one (1) year from the date on which the first of such payments at issue is due (or alleged to be due) by EIA Holidays.
EIA Holidays will pay by EFT into the Supplier bank account provided by Supplier. If Supplier fails to provide, maintain or update the bank account details required by EIA Holidays (including all relevant tax information), EIA Holidays reserves the right to withhold payment until such time as this information has been provided. If Supplier requests payment in a form other than EFT or into an account or in a currency that is not denominated in United States Dollars, Pound Sterling, Euros or Australian Dollars, EIA Holidays reserves the right to apply a transaction fee and/or a currency conversion fee for such payment, which such fee or fees will not exceed EIA Holidays ’cost. For each payment, EIA Holidays will make available to Supplier a remittance advice detailing the transaction ID and other booking information for each Product transaction included in the Supplier Remittance. UNLESS SPECIFICALLY REQUIRED BY THIS ATTACHMENT, SUPPLIER WILL NOT SEND INVOICES TO EIA HOLIDAYS. Any Supplier invoices sent to EIA Holidays are hereby rejected, and EIA Holidays has no obligation to pay, and no liability with respect to, any Supplier invoices sent to EIA Holidays.
“Settlement Period” for a given Supplier is based on the EIA Holidays -approved currency in which such Supplier is to be paid. Payment timeframes may be found such other Uniform Resource Locator (“URL”) as EIA Holidays establishes, as such may be updated from time to time.
Operational Procedures & Technology
Product Bookings, Changes & Availability: All Products will be subject to “Instant Confirmation Booking” unless EIA Holidays and Supplier mutually agree that Instant Confirmation Booking is not commercially possible for a specific Product or that a Product is subject to On Request Booking (defined below). For Instant Confirmation Bookings, Supplier authorizes EIA Holidays to accept all requests from Customers for the purchase of Supplier’s Products and to send confirmation of Product purchases to Customers. For avoidance of doubt, Supplier will accept all Instant Confirmation Booking requests and may not reject an Instant Confirmation Booking. If an Instant Confirmation Booking request lacks certain Customer Information, Supplier shall follow EIA Holidays ’then-current customer contact procedures (defined below) (and to be clear, Supplier will not reject the booking). The parties may mutually agree that a specific Product is subject to “On Request Booking,” in which case Supplier may accept or reject a booking request for the Product before the Customer receives confirmation from EIA Holidays. For On Request Bookings, Supplier agrees to accept or reject the booking request as quickly as possible and in no event later than forty-eight (48) hours after the On Request Booking is made. If Supplier accepts the request, the Product will be deemed purchased and confirmed.
Supplier will manage Product bookings, including without limitation accepting, rejecting and confirming Product bookings, using the interface made available by EIA Holidays. Supplier will keep Product availability current at all times.
All bookings not rejected by Supplier or Supplier’s technology provider through an interface made available by EIA Holidays will be deemed accepted by Supplier. If a Customer is able to book a particular Product because Supplier appears to have availability for such Product through the EIA Holidays interface, Supplier will accept such booking. If booking through the EIA Holidays interface becomes disabled, regardless of fault and with or without notice, Supplier agrees to immediately revert to managing booking confirmations either through emailed booking confirmations sent from EIA Holidays or through other technology made available by EIA Holidays.
Supplier will notify EIA Holidays of any changes (e.g., changes to itineraries or timings), cancellations (e.g., tour cancellations, sold-out dates) and any other updates with respect to Products at least six (6) months in advance. If such advance notice is not possible, Supplier will notify EIA Holidays immediately upon becoming aware of such changes, cancellations or updates. If Supplier does not notify EIA Holidays in advance of such changes, cancellations and updates and EIA Holidays refunds Customers for the applicable Products as a result of the changes, cancellations or updates, Supplier agrees to compensate EIA Holidays for all amounts forfeited by EIA Holidays and pay reasonable amounts for EIA Holidays ’efforts.
Cancellation and No-Show Policy: For each Product, Supplier will adhere to EIA Holidays ’cancellation policy as set forth on the EIA Groups/EIA Holidays website at the time of Product booking. Notwithstanding the foregoing, in any event, Supplier will not impose a more restrictive cancellation policy on Customers booking via the Distribution Channels than the cancellation policies Supplier imposes on customers booking directly with Supplier or through any third party (including, without limitation, through coupons, deal-of-the-day or flash sale websites, or any other distribution channel) (the “Supplier No Show Policy”). Unless cancelled by EIA Holidays, all Products booked by Customers through the Distribution Channels will remain available to the Customers in accordance with the Supplier No Show Policy. Supplier will use commercially reasonable efforts to accommodate Customers arriving after any no-show cut-off time.
Supplier Interaction with EIA Holidays: Supplier’s use of the Distribution Channels and any associated tools, interfaces, application programming interfaces, extranets, computer software and any other EIA Holidays technology (collectively, the “EIA Holidays Technology”) is subject to and conditioned on Supplier’s compliance with the terms and conditions of this Agreement, including without limitation this Attachment. Supplier or its third-party service providers shall access and use the EIA Holidays Technology in accordance with the applicable documentation for such EIA Holidays Technology and any written instructions received from EIA Holidays. EIA Holidays may suspend Supplier’s and/or its third-party service providers’ access to and use of EIA Holidays Technology at any time if EIA Holidays believes that Supplier and/or its third-party service providers are in breach of this Agreement (including without limitation Supplier’s representations and warranties). Supplier shall be responsible for the compliance of its third-party providers with the terms and conditions of this Agreement and shall be liable for any breach of this Agreement by such third-party providers. Supplier acknowledges and agrees that EIA Holidays owns all right, title and interest in and to the EIA Holidays Technology and reserves all rights not granted herein. Supplier shall not, and shall not permit any third party to, (a) copy, modify, adapt, transfer, distribute, resell, rent, lease, sublicense or loan the EIA Holidays Technology or create or prepare derivative works based upon the EIA Holidays Technology or any part thereof, (b) use the EIA Holidays Technology for any purpose other than as expressly permitted under this Agreement, (c) use the EIA Holidays Technology in contravention to any applicable laws or government regulations, or (d) attempt to decompile, disassemble or otherwise reverse engineer the EIA Holidays Technology.
Supplier (and not EIA Holidays) is responsible for obtaining, maintaining and configuring all telecommunications, broadband, computer and other hardware, equipment, software and services needed to access and use the EIA Holidays Technology, and paying all charges related thereto. If Supplier intends to engage a third-party service provider to obtain, maintain and/or configure Supplier’s access to the EIA Holidays Technology, Supplier will notify EIA Holidays in advance, and Supplier assumes responsibility for actions taken by such third party and such third party’s compliance with this Attachment.
Supplier Interactions with Customers: If Supplier needs to contact a Customer, Supplier shall use only the interface made available by EIA Holidays, unless agreed to otherwise by EIA Holidays, and any such use shall only be in furtherance of the sale of a Product through the Distribution Channels.
Customer Redemption: If Supplier requires a voucher or confirmation of purchase, Supplier will accept an electronic voucher for each Product sold through the Distribution Channels. If Supplier cannot accept electronic vouchers for a certain Product, Supplier must request approval from EIA Holidays and EIA Holidays may in its sole and absolute discretion waive the electronic voucher requirement, which waiver may be provided by EIA Holidays by e-mail.
Additional Restrictions: Supplier is not authorized to systematically analyse, scrape or otherwise extract information or data (including without limitation guest reviews) from the Distribution Channels, or any other websites of EIA Holidays or the EIA Holidays /EIA Groups group of companies, or any EIA Holidays affiliate. Supplier is not authorized to publicly display on Supplier’s websites any of the content, text, images, materials, videos or other materials displayed on the Distribution Channels or any other websites of EIA Holidays or the EIA Holidays/EIA Groups group of companies or any EIA Holidays affiliate (other than the Supplier Content).
Supplier Technology Partners:
If Supplier uses a third party (“Technology Partner”) to provide a technology platform to manage reservations and accept bookings for Supplier’s Products (a “Platform”), Supplier will procure that the Technology Partner:
- provides EIA Holidays with all necessary access to and rights to use the Technology Partner’s application program interface for the Platform to enable EIA Holidays to provide the services described in this Agreement;
- does not charge EIA Holidays or the Supplier any fees beyond the lowest standard fee the Technology Partner charges for a booking made on the Platform and not through EIA Holidays;
- maintains the obligations of confidence and non-disclosure in relation to EIA Holidays ’Confidential Information as if Technology Partner were the receiving party of Confidential Information under Section 11 of this Agreement;
- does not use any of EIA Holidays ’Confidential Information, including, without limitation any information transmitted between EIA Holidays and Supplier via the Platform (“EIA Holidays Data”), for any competitive purpose, to perform data analytics or for any purpose other than to enable EIA Holidays to provide the services described in this Agreement; and
- has, and shall maintain throughout the term of this Agreement, safeguards against the destruction, loss, alteration, unauthorized access or disclosure of any EIA Holidays Data in its possession, consistent with best practices in the industry and as rigorous as the protections the Technology Partner affords its own proprietary data.
If required by EIA Holidays, Supplier will procure and maintain a current Public (Product) liability insurance (PLI) and errors and omissions insurance with coverage limits consistent with industry standards and as may be required by applicable laws, rules, and regulations. Such insurance will be provided through an insurer acceptable to EIA Holidays with an A.M. Best (or its equivalent) financial strength rating of A-VII or higher, and will include, without limitation, completed operations, blanket contractual liability, and personal injury and advertising liability. On EIA Holidays ’request (which may be made by e-mail), Supplier will add EIA Holidays as an additional insured to such insurance policies and will provide a certificate of insurance evidencing all of the coverage described in this Section and that EIA Holidays has been added as an additional insured. Such insurance carried by Supplier will be primary to any insurance carried by EIA Holidays.
Notwithstanding the foregoing, EIA Holidays reserves the right to require specific additional coverage or increased coverage, or to waive the foregoing insurance requirements, based on Supplier’s Product offerings, and Supplier will maintain its insurance at such levels upon EIA Holidays ’request (which may be made by e-mail). EIA Holidays does not represent that the coverage it may require will be adequate to protect Supplier and such coverage and limits will not be deemed to be a limitation on supplies’ liability to EIA Holidays, if any, arising under this Agreement.
If Supplier fails to comply with the foregoing requirements, and fails to cure such failure within fifteen (15) days from receipt of EIA Holidays ’written notice, EIA Holidays may elect to either (x) notify Supplier of a Deactivation or (y) terminate this Agreement.