Client Terms and Conditions Draft
- Unless otherwise agreed, the Partner shall design, develop and provide all Promotional Material required to promote or display the Partner’s Retreat Services at its own cost. It is entirely at The Retreat Company’s discretion as to whether or not they display any Promotional Material provided by the Partner.
- In publishing Promotional Material or otherwise displaying details of Retreat Services, The Retreat Company acts as an advertising intermediary only and accepts no liability in relation to the Retreat Services advertised or any subsequent Transaction, or for the acts or omissions of the Partner or any Customer or other person(s) or party (ies) connected with the Transaction. For any Transactions, the Customer’s contract will be with the Partner. In no circumstances shall The Retreat Company be a party to any contract with the Customer or between the Partner and the Customer.
Obligations of the Partner
- Where the Partner provides Promotional Material, the Partner shall ensure that nothing contained within the Promotional Material is materially inaccurate or in breach of applicable law, including the Data Protection Act 2018, the Advertising Standards Authority’s (or any other relevant authorities), code of practice from time to time in force, or is deemed to be damaging to The Retreat Company’s reputation.
Where the Partner provides Promotional Material, the Partner shall ensure that nothing contained within the Promotional Material is materially inaccurate or in breach of applicable law, including the Data Protection Act 2018, the Advertising Standards Authority’s (or any other relevant authorities), code of practice from time to time in force, or is deemed to be damaging to The Retreat Company’s reputation.
- The Retreat Company accepts no responsibility for any inaccuracies or any breach of any laws and/or regulations that may arise as a result of the Promotional Material. The Partner agrees to fully indemnify The Retreat Company in respect to any losses of whatever nature incurred by The Retreat Company due to a breach of this Clause 3.
- The Partner will be solely responsible for the development, operation and maintenance of its own website and for all material that appears on its own website.
- All issues relating to the process by which a Customer may make a Transaction shall be the responsibility of the Partner.
- The Partner agrees to always display Promotional Material on the Website with the lowest, or matching, prices in the market from the Partner.
The Partner agrees that it will use all endeavours in its own promotion of the Retreat Services, whether by written articles, its own website or via any other means, to direct Customers toward The Retreat Company Website.
Obligations of The Retreat Company
- The Retreat Company will promote the Partner’s Retreat Services and Promotional Material via a hyperlink on the Website.
- The Retreat Company will perform its obligations under this agreement with reasonable levels of skill and care.
The Retreat Company will handle, where possible, any Customer enquiries it receives regarding the Partner’s Retreat Services and will do so with all reasonable skill and care.
The parties agree that the Partner will pay The Retreat Company commission for each Re-Direct generated to the Partner’s website via The Retreat Company and/or the Website. The level of commission payable to The Retreat Company by the Partner shall be that which is set out in Schedule 1 (“Commission“).
The Retreat Company will send an invoice to the Partner each month, unless otherwise agreed between the parties from time to time, for the Commission owing to The Retreat Company for the month in question. The invoice shall be payable by the Partner by the date of payment listed on the invoice.
Where a Re-Direct booking is changed or cancelled, The Retreat Company’s full entitlement to commission will remain.
Intellectual Property and Copyright
To the extent that any Promotional Material contains any Intellectual Property Rights the disclosing party hereby:
- warrants that it has the right and title to allow its use;
- licences its use to the other; and
- indemnifies the other against any claim that the said intellectual property is not capable of use in all cases for the purposes of this Agreement.
- The Partner shall, during each and every calendar month of this Agreement beginning on the Commencement Date, accurately identify and keep a record of the total number of Re-Directs.
- The Retreat Company shall have the right, on reasonable notice during normal business hours, to inspect and audit the Partner’s Re-Direct records to verify the accuracy of payments due and compliance with the Partner’s obligations under this Agreement. If any such audit reveals an underpayment by the Partner, the cost of such inspection shall be borne by the Partner, who shall make good the underpayment within five (5) Business Days.
Representations and Warranties
- The Retreat Company represents and warrants that it has the right, power and authority to enter into this Agreement and to perform all of its obligations hereunder and that the performance of such obligations will not conflict with or result in a breach of any Agreement to which The Retreat Company is a party or is otherwise bound.
- The Retreat Company makes no express or implied representations or warranties regarding the Website or its performance, availability or functionality. Any implied warranties of merchantability, fitness for a particular purpose, and non-infringement from The Retreat Company are expressly disclaimed and excluded. In addition, The Retreat Company makes no representation or warranty that the operation of the Website will be uninterrupted or error free and The Retreat Company will not be liable for the consequences of any such interruptions or errors.
- The Partner represents and warrants that it has the right, power and authority to enter into this Agreement and to perform all of its obligations hereunder and that the performance of such obligations will not conflict with or result in a breach of any Agreement to which the Partner is a party or is otherwise bound. The Partner also warrants to The Retreat Company that it shall not, at any time, do anything which will harm the reputation of The Retreat Company.
The Partner agrees to indemnify The Retreat Company for the full amount of all claims, liabilities, demands, damages, expenses, losses, refunds, fines, costs (including all legal costs) and all other sums of whatever nature which The Retreat Company incurs, suffers or becomes responsible for as a result, directly or indirectly of:
- any breach of this Agreement and/or any other agreement between the parties by the Partner;
- the publication by The Retreat Company of any Promotional Material or any other data or information supplied by the Partner;
- the content of any Promotional Material; and/or
- any act(s) and/or default(s) of the Partner and/or any person(s) provided or used (directly or indirectly) by the Partner (including employees, agents, suppliers and sub-contractors of the Partner).
This clause shall survive and remain in full force and effect after the termination (for whatever reason) or expiry of this Agreement.
The Retreat Company’s Liability
- The Retreat Company does not guarantee the success of any Promotional Material which is published on its Website, and the Partner accepts that The Retreat Company shall have no liability for the failure of any Promotional Material to generate Re-Directs.
- Without prejudice to any other provision in this Agreement, The Retreat Company’s entire liability to the Partner arising out of or in connection with the Agreement, including without limitation breach of contract, misrepresentation (except where fraudulently made) and tort (including negligence but subject to Clause 10.4), is limited to the amount of the Commission paid by the Partner in accordance with this Agreement, in the preceding 6 months.
- Notwithstanding the generality of this clause, The Retreat Company expressly excludes liability for any indirect, special, consequential or economic loss or damage which may arise out of or in relation to the Agreement between The Retreat Company and the Partner, whether arising from any failure to publish the Promotional Material in a timely manner or at all, or otherwise, and for any loss of profits, revenue, anticipated savings, business, contracts, production or goodwill even if The Retreat Company has been advised as to the possibility of such damages.
- The Retreat Company does not limit or exclude liability for death or personal injury caused by negligence.
- This clause shall survive and remain in full force and effect after the termination (for whatever reason) or expiry of this Agreement.
Term and Termination
- This Agreement shall come into force on the Commencement Date and will continue in full force and effect until terminated in accordance with this Clause 11.
- Either party may terminate this Agreement upon notice by giving not less than 30 days’ notice in writing to the other party.
- If either party materially breaches any provision of this Agreement and such breach has not been remedied within 15 working days after the other party has given written notice of such breach, the non-breaching party may terminate this agreement immediately without written notice to the breaching party.
- Either party may terminate this Agreement immediately by giving the other written notice if the other party goes into any form of receivership or liquidation (save in respect of a bona fide restructuring of its business), becomes insolvent or enters into any composition with its creditors or ceases or threatens to cease to carry on its business or there is the appointment of an administrator.
- The Retreat Company reserves the right to terminate this Agreement and withdraw all Promotional Material with immediate effect in the event that the Partner behaves in a way which may cause damage to The Retreat Company’s brand or reputation.
Effect of Termination
On termination the parties shall, as soon as reasonably possible, remove all Promotional Material and any reference to the other party from the Website.
The termination of this Agreement shall not prejudice or affect any right of action or remedy which have been accrued or will accrue to either party.
- Upon termination of this Agreement, all outstanding Commission payable by the Partner to The Retreat Company as at the date of termination shall become immediately due and payable and the Partner shall pay such amounts to The Retreat Company within 30 days.
The parties will keep the contents of this Agreement and their terms of trading including agreed commission rates, strictly confidential and unless obliged to do so by law will not disclose them to any third party
While performing this Agreement either party may exchange and be exposed to proprietary technical or business information (including, without limitation, confidential or unannounced business, product, service or marketing plans, procedures or strategies) confidential information and materials (of both a technical and non-technical nature) of the other party. Both parties agree that such information shall be kept confidential and will not be disclosed to any other third parties or used for any purpose other than performing this Agreement.
Any item will not be considered to be confidential information if it is;
- already available to the public other than by a breach of this Agreement or a breach of confidence;
- rightfully received from a third party not in breach of any obligation of confidentiality;
- independently developed by personnel or agents of one party without any use in any way of the Confidential Information of the other;
- proven to be already known to the recipient at the time of disclosure; or
- produced in compliance with applicable law or a court order, provided the receiving party if lawfully entitled, first gives the disclosing party reasonable notice of such law or order and gives the disclosing party an opportunity to object to and/or attempt to limit such production.
Neither party shall be liable to the other for any contractual default which they could not foresee or avoid. These events can include, but are not limited to, war, threat of war, civil strife terrorist activity and its consequences or the threat of such activity, riot, the act of any government or other national or local authority, natural or nuclear disaster, fire, chemical or biological disaster, significant risks to human health such as the outbreak of serious disease, pandemics or epidemics, including the ongoing effects of Covid-19 and all similar events outside the party concerned’s control.
For the avoidance of doubt, The Retreat Company’s entitlement to commission shall not cease where a Customer or the Partner cannot fulfil the booking of the Retreat Services due to Force Majeure or any other circumstance.
This Agreement may only be varied by a document in writing signed by each of the parties.
All obligations under this Agreement which by their nature would continue beyond the termination and /or expiration of this Agreement shall survive such termination and/or cancellation.
This Agreement contains the entire agreement between the Parties and supersedes all previous agreements, arrangements and understandings between the Parties with respect to the subject of this Agreement, which shall cease to have any further force or effect.
The failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.
If any provision of this Agreement is held to be invalid or void for any purpose, it shall for that purpose be deemed to be omitted from this Agreement. Such omission shall not affect or prejudice the validity, effectiveness or enforceability of the rest of the provisions of this Agreement.
The headings in this Agreement are for reference purposes only and do not form part of the Agreement. They shall not affect the interpretation of this Agreement and are not to be deemed to be an indication of the meaning of the clause to which they relate.
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement) under the Contracts (Rights of Third Parties) Act 1999.
This Agreement shall not operate so as to create a partnership or joint venture of any kind between the parties. Nothing contained in this Agreement shall be so construed as to constitute either party to be the agent of the other. Neither party shall have any authority to make any commitments on the other party’s behalf.
Governing Law & Jurisdiction
This Agreement and all matters arising out of it shall be construed and governed according to English law. The Parties agree that any dispute(s) they may have will be exclusively dealt with by the Courts of England and Wales.