(1) TRAVEL CURIOUS LIMITED incorporated and registered in England and Wales with company number 11574959 whose registered office is at 81 Curtain Rd (unit C), Shoreditch, London EC2A 3AG (“Travel Curious”).
(2) [WHITE LABEL PARTNER] incorporated and registered in England and Wales with company number [NUMBER]whose registered office is at [REGISTEREDOFFICEADDRESS]
(the “White Label Partner”).
Travel Curious is an intermediary tour booking service. It operates a website (www.travelcurious.com) through which it enables Tour and Transport Providers to offer their services.
The White Label Partner has agreed to market and sell Travel Curious’s tourbooking services on the White Label Partner’s website and Travel Curious has agreed to remit a commission to the White Label Partner on the terms of this agreement each time a customer purchases a service through the White Label Partner’s website.
The following definitions and rules of interpretation apply in this agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date:has the meaning given to it in clause 6.
Commission:has the meaning given to it in clause 4.2.
Tour Concierge Fee: is a discretionary fee added from time to time to reflect tour customisation by Travel Curious
Subscription Fee: a monthly fee that Travel Curious may charge a White Label Partner with the written agreement of the White Label Partner.
Booking: a booking is deemed to have taken place upon the completion of a booking request by customer or White Label Partner, the receipt by Travel Curious of funds required under the proposed Relevant Contract between the Customer and Service Provider, and acceptance of the Relevant Contract by the Tour Provider
Confidential Information: information in whatever form (including,without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, affairs and finances of Travel Curious for the time being confidential to Travel Curious and trade secrets including, without limitation, technical data and knowhow relating to the business of Travel Curious or any of its suppliers, customers, agents, distributors, shareholders, management or business contacts, including in particular (by way of illustration only and without limitation) information that the White Label Partner creates, develops, receives or obtains in connection with this agreement,whether or not such information (if in anything other than oral form) is marked confidential.
Customer:shall mean a person who makes a booking for a tour via the White Label.
Tour Provider: shall mean independent third party tour companies and independent third party tour guides who provide tour services.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in getup, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including knowhow and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
White Label Partner shall mean the person using Travel Curious’s White Label Services to facilitate or make customer bookings in accordance with a White Label agreement.
White Label Partner’s Website: thewebsite, mobile application or other platform owned by the White Label Partner through which a Customer makes a Booking.
Licensed Rights: those Intellectual Property Rights owned by Travel Curious that are used in the Booking process.
Net Income: the payments made for the services of the Service Provider or Transport Provider through Travel Curious under aRelevant Contract, less any value added or other sales tax on them, any out of pocket expenses incurred by Travel Curious in providing the Services and any discounts or rebates granted by Travel Curious.
Relevant Contract: a contract for the supply of Services between the customer and Tour Providers and/or Transport Providers entered into pursuant to a Booking.
Services: the tour booking services provided by Travel Curious together with any other services from time to time offered by Travel Curious and which Travel Curious, by express written notice to the White Label Partner, includes within the scope of this agreement.
White Label Service: means Travel Curious’s proprietary software, data and content white label service, amended to include any Customisation Requirements, which enables the White Label Partner to utilise selected Travel Curious hosted functionality or integrate Travel Curious hosted functionality on the White Label Partner Site
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a statute or statutory provision is a reference to it as amended, extended or reenacted from time to time.
1.4 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.5 A reference to writingor writtenincludes fax and email.
1.6 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.7 References to clauses are to the clauses of this agreement.
2.1 Travel Curious appoints the White Label Partner on a nonexclusive basis to advertise and promote Travel Curious’s Services on the White Label Partner’s Website so that Customers can make Bookings on the White Label Partner’s Website or Travel Curious hosted functionality. (Partner needs to send over the details of the customer: phone number etc)
2.2 The White Label Partner shall have no authority, and shall not hold itself out, or permit any person to hold itself out, as being authorised to bind Travel Curious in anyway, and shall not do any act which might reasonably create the impression that the White Label Partner is so authorised. The White Label Partner shall not make or enter into any contracts or commitments or incur any liability for or on behalf of Travel Curious, including for the provision of the Services or the price for them, and shall not negotiate any terms for the provision of the Services with Customers.
2.3 The White Label Partner must disclose to each Customer that it is promoting the Services on behalf of Travel Curious and that it has no authority or ability to negotiate or vary the Services or the terms of the Services or enter into any contract on behalf of Travel Curious.
2.4 The White Label Partner shall not produce any marketing material for Travel Curious’s services or use Travel Curious’s name, logo or trade marks on any marketing material for the Services without the prior written consent of Travel Curious.
2.5 Other than in accordance with clause 8.3, the White Label Partner shall not, without Travel Curious’s prior written consent, make or give any representations, warranties or other promises concerning the Services which are not contained in Travel Curious’s marketing material.
2.6 Where a Customer makes a Booking and the Customer then introduces Travel Curious to a third party who purchases Services from Travel Curious directly,the White Label Partner shall not, by virtue of such initial Booking, be deemed to have facilitated the subsequent Booking of the third party to Travel Curious.
2.7 Travel Curious shall be under no obligation to:
(a) follow up any Booking made by the White Label Partner; or
(b) enable the creation of Relevant Contract as a result of a Booking.
2.8 Travel Curious shall be responsible for the processing of each Booking and all customary rules, operating procedures and policies of Travel Curious will apply to all Bookings.
3. ANTIBRIBERY COMPLIANCE
3.1 The White Label Partner shall:
(a) comply with all applicable laws, statutes, regulations and codes relating to antibribery and anticorruption including but not limited to the Bribery Act 2010 (the “Relevant Requirements”);
(b) have and shall maintain in place throughout the term of this agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and will enforce them where appropriate;
(c) promptly report to Travel Curious any request or demand for any undue financial or other advantage of any kind received by the White Label Partner in connection with the performance of this agreement;
(d) within three months of the date of this agreement, and annually thereafter, certify to Travel Curious in writing signed by an officer of the White Label Partner, compliance with this clause 3 by the White Label Partner. The White Label Partner shall provide such supporting evidence of compliance as Travel Curious may reasonably request.
3.2 Breach ofthis clause 3 by the White Label Partner shall be deemed a material breach under clause 7.1(b).
4. COMMISSION AND PAYMENT
4.1 The White Label Partner shall be entitled to Commission if a Customer uses Travel Curious’s White Label Services to a Booking and enters into aRelevant Contract with Tour Provider and/or a Transport Provider
4.2 The amount of commission payable shall be % of Travel Curious’s Net Income received under each Relevant Contract (the “Commission”).
4.3 All Commission payable pursuant to clause 4.2 shall be due to the White Label Partner (whether invoiced or not) within 15 days of the end of the month in which Travel Curious received the corresponding payment for Services under a Relevant Contract. If Travel Curious receives payment under any Relevant Contract in installments, then Commission shall be calculated and paid on such instalments as they are received by Travel Curious.
4.4 Travel Curious shall within 15 days of the end of the month in which it receives the corresponding payment for Services under a Relevant Contract, send to the White Label Partner a written statement setting out, in respect of such month, and in respect of each Relevant Contract:
(a) the Commission payable to the White Label Partner;
(b) the payments received and details of any sums due which have not been received; and
(c) how the Commission has been calculated, including details of all deductions made in determining Net Income.
4.5 Commission shall be payable to the White Label Partner in pounds sterling.
4.6 All sums payable by Travel Curious under this agreement are inclusive of value added tax or other applicable sales tax, which shall be added to the sum in question.
4.7 If any dispute arises as to the amount of Commission payable by Travel Curious to the White Label Partner, the same shall be referred to Travel Curious’s auditors for settlement and their decision, save in the case of manifest error, shall be final and binding on both parties.
4.8 Travel Curious shall not be responsible for any costs incurred by the White Label Partner unless such costs have been agreed by Travel Curious in writing, in advance.
5.1 Each party undertakes that it shall not at any time disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 5.2.
5.2 Each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall procure thatits employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 5; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
5.3 No party shall use any other party’s ConfidentialInformation for any purpose other than to perform its obligations under this agreement.
5.4 All documents and other records (in whatever form) containing Confidential Information supplied to or acquired by the White Label Partner from Travel Curious shall be returned promptly to Travel Curious on termination of this agreement, and no copies shall be kept.
5.5 Either party may issue a press release or public statement in respect ofthis agreement or the relationship between the parties.
6. WARRANTIES AND REPRESENTATIONS
6.1 Each party represents and warrants that it has the full power and authority to enter into this agreement and that the person signing on its behalf is duly authorised to do so.
6.2 The White Label Partner warrants and represents that the promotion and advertisement of Travel Curious’s Services in accordance with clause 8 will not be done so in away that contains material that is defamatory, slanderous, libellous, obscene, portray any persons in a false light, constitute an invasion of any right to privacy or an infringement of any right to publicity, or otherwise violate any rights of any third party.
6.3 The White Label Partner warrants that the execution, delivery and performance of this agreement does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any of any court, governmental body or administrative or other agency having jurisdiction over it.
6.4 The White Label Partner shall indemnify Travel Curious for any claims, costs, losses, damages, judgments and expenses (including reasonable legal fees) incurred by Travel Curious arising out of or in connection with any action or claim from a Customer or other third party arising from actions of the White Label Partner.
6.5 Neither party will be liable for, or be considered to be in breach of or default under this agreement on account of, any delay or failure to perform as required by this agreement as a result of any cause or condition beyond such party’s reasonable control (including,without limitation, any act or failure to act by the other party).
7. INTELLECTUAL PROPERTY LICENCE
7.1 Travel Curious hereby grants to the White Label Partner for the term if this agreement a non-exclusive royalty free licence to use and apply the Licensed Rights to the White Label Partner’s Website solely for the facilitation of Bookings. For the avoidance of doubt, the licence granted pursuant to this clause cannot be sublicensed.
7.2 The White Label Partner shall comply with the specifications, standards and directions relating to the Licensed Rights as notified in writing by Travel Curious from time to time and with all applicable laws, regulations, industry standards and codes of practice.
7.3 The White Label Partner shall, upon Travel Curious’s request, provide Travel Curious with details of any complaints it has received relating to the LicensedRights togetherwith reports on the manner in which those complaints are being or have been dealt with, and shall comply with any reasonable directions given by Travel Curious concerning those complaints.
8. MARKETING, ADVERTISING AND PROMOTION
8.1 The White Label Partner shall use its best endeavours to promote and expand Travel Curious’s Services on the maximum possible scale, and shall provide any advertising and publicity as may reasonably be expected pursuant to this clause 8.1 to bring the Services to the attention of as many purchasers and potential purchasers as possible.
8.2 The White Label Partner undertakes to ensure that its advertising, marketing and promotion of Travel Curious’s Services shall not reduce or diminish the reputation, image and prestige of Travel Curious and their Intellectual Property Rights.
8.3 The White Label Partner shall send to Travel Curious for its prior written approval, the text and layout of all proposed advertisements and marketing and promotional material relating to the Services on the White Label Partner’s Website, including that which contains any of the Licensed Rights. In the event that Travel Curious disapproves of any material, it shall give written notice of this disapproval to the White Label Partner within 10 BusinessDays days of receipt by Travel Curious ofthe material. The White Label Partner shall not use any material in the advertising, marketing or promotion of Travel Curious’s Services which has not been approved by Travel Curious. In the absence of a written notice of disapproval within 10 Business Days of receipt of these materials, the materials shall be deemed to have been approved by Travel Curious.
8.4 The White Label Partner shall bear the costs of all advertising, marketing and promotion for Travel Curious’s Services on the White Label Partner’s Website.
9. COMMENCEMENT AND DURATION
This agreement shall commence on the date when it has been signed by all the parties (the “Commencement Date”) and shall continue, unless terminated earlier in accordance with clause 10, until either party gives to the other party 30 days written notice to terminate.
Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(b) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
(g) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; or
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which itis subjectthat has an effect equivalent or similar to any of the events mentioned in this clause 10.
11. CONSEQUENCES OF TERMINATION
11.1 On termination of this agreement, the following clauses shall continue in force: clause 1, clause 4, clause 5 and clause 11 to clause 20 (inclusive).
11.2 Termination ofthis agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the rightto claim damages in respect of any breach of the agreement which existed at or before the date of termination.
12. NO PARTNERSHIP OR AGENCY
12.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any ofthe parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
12.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
13. ENTIRE AGREEMENT
13.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.2 Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
13.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
13.4 Nothing in this clause shall limit or exclude any liability for fraud.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15. ASSIGNMENT AND OTHER DEALINGS
This agreement is personal to the parties and neither party shall assign,transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.1 If any provision or part provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part provision shall be deemed deleted. Any modification to or deletion of a provision or part provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
17.2 If any provision or part provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
(a) delivered by hand or by prepaid first class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case);
(b) sent by fax to its main fax number; or
(c) sent by email to an email address as notified to the other party from time to time.
18.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or atthe time the notice is left at the proper address;
(b) if sent by prepaid firstclass post or other next BusinessDay delivery service, at 9.00 am on the second Business Day after posting or atthe time recorded by the delivery service.
(c) if sent by fax or email, at the time of transmission.
18.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
19. THIRD PARTY RIGHTS
No one other than a party to this agreement shall have any right to enforce any of its terms.
20. GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including noncontractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including noncontractual disputes or claims).
This agreement has been entered into on the date stated at the beginning of it.