General Delivery Terms
These general delivery terms (the “Terms”) form an integral part of the Training Provider Agreement (the " Training Provider Agreement " and together with the Terms, "Agreement") entered into between a Training Provider and Tapiit Limited (“Tapiit”)(each a "Party" and collectively the "Parties").
In addition to terms defined elsewhere in this Agreement, the following definitions apply throughout this Agreement, unless the contrary intention appears:
"Customer Service" means the customer service desk of Tapiit which can be reached at customerservice@Tapiit or such other address as set out in this Agreement.
"Data Controller" means a natural or legal person which alone or jointly with others determines the purposes and means of the processing of Personal Data.
"Direct Debit" means the instruction given by the Training Provider to its bankers and/or credit/debit card providers such that Tapiit is authorized to collect the relevant amount under this Agreement directly from the bank account of the Training Provider.
"Force Majeure Event" means any of the following events affecting multiple Purchasers: act-of-God, volcanic eruptions, (natural) disaster, fire, (acts of) war, hostilities or any local or national emergency, invasion, compliance with any order or request of any national, provincial, or other public authority, government regulation or intervention, military action, civil war or terrorism, (biological, chemical or nuclear) explosion, rebellion, riots, insurrection strikes, civil disorder (or the material or substantial threat or justified apprehension of any of the foregoing events), curtailment of transportation facilities, close down of airports or any other exceptional and catastrophic event, circumstance or emergency, making it impossible, illegal or prevents Purchasers from travelling to or attending the Training Provider.
"Intellectual Property Right" means any patent, copyright, inventions, database rights, design right, registered design, trade mark, trade name, brand, logos, service mark, know-how, utility model, unregistered design or, where relevant, any application for any such right, know-how, trade or business name, domain name (under whatever extension, e.g. .co, .com, .uk, .eu, etc.) or other similar right or obligation whether registered or unregistered or other industrial or intellectual property right subsisting in any territory or jurisdiction in the world.
"Personal Data" means any information relating to an identified or identifiable natural person (including Customer Data and credit card data).
"Platforms" means the website(s), apps, tools, platforms and/or other devices of Tapiit and its affiliated companies and business partners on or through which the Service is (made) available.
"Purchaser" means a visitor of the Platforms or a customer of the Training Provider.
"Service" means means the online Training Course booking system of Tapiit through which Training Providers can make their Training Courses available for booking, and through which Purchasers can booksuch Training Courses, make payment, customer service and the Communication Service .
"Tapiit Platform" means the website(s), apps, tools, platforms or other devices of Tapiit on which the Service is made available.
"Tapiitnet" means the online system which can be accessed by the Training Provider (after identification of the username and the password) through the website uploading, changes, verifying, updates and/or amendments of the Training Provider Information (including prices, availability, content of Training Courses) and bookings.
“Training Course” means any training course offered by a Training Provider.
“Training Provider” means any person, company or other organization which offers any Training Course to Purchasers.
“Training Provider Information” means information provided by a Training Provider as defined in paragraph 2.1.1 below.
“Unpublished” means not Published Online.
"We Price Match" means the guarantee issued by Tapiit (under this or any similar name) stating that Tapiit offers the best price for a Training Course and that no lower price can be found online for the equivalent Training Course with the same training content and dates and the same booking conditions.
2. TRAINING COURSE INFORMATION
2.1 Training Provider Information
2.1.1 Information provided by the Training Provider for
inclusion on the Platforms shall include information relating to the Training
Provider (including pictures, photos and descriptions), its amenities and
services and the Training Courses available for booking, details of the prices (including
all applicable taxes, levies, surcharges and fees) and availability,
cancellation and no-show policies and other policies and restrictions (the
"Training Provider Information")
and shall comply with
formats and standards provided by Tapiit. The Training Provider Information
shall not contain any telephone or fax numbers or email (including skype)
address or social media website/app/platform (including twitter and Facebook),
with direct references to the Training Provider or its websites, apps,
platform, tools or other devices, or to websites, apps, platform, tools or
other devices of third parties. Tapiit reserves the right to edit or exclude
any information on becoming aware that it is incorrect or incomplete or in
violation of the terms and conditions of this Agreement.
2.1.2 The Training Provider represents and covenants that the Training Provider Information shall at all times be true, accurate and not misleading. The Training Provider is at all times responsible for a correct and up-to-date statement of the Training Provider Information, including availability of Training Courses or any extraordinary (material adverse) events or situations. The Training Provider shall update the Training Provider Information on a daily basis (or such more frequent basis as may be required) and may –at any time– change via the Tapiitnet (i) the price of its available Training Courses, and (ii) the number or type of available Training Courses.
2.1.3 The information provided by the Training Provider for the Platforms shall remain the exclusive property of the Training Provider. Information provided by the Training Provider may be edited or modified by Tapiit and subsequently be translated into other languages, whereas the translations remain the exclusive property of Tapiit. The edited and translated content shall be for the exclusive use by Tapiit on the Platforms and shall not be used (in any way or form) by the Training Provider for any other distribution or sales channel or purposes. Changes to or updates of the descriptive information of the Training Provider are not allowed unless prior written approval has been obtained from Tapiit.
2.1.4 Unless Tapiit agrees otherwise, all changes, updates and/or amendments of the Training Provider Information (including prices, availability, Training Courses) shall be made by the Training Provider directly and on-line through the Tapiitnet or such other ways as Tapiit may reasonably indicate. Updates and changes in respect of pictures, photos and descriptions will be as soon as reasonably possible processed by Tapiit.
2.2 Parity and Training Course restrictions
2.2.1 The Training Provider shall give Tapiit price and availability parity ("Parity").
Rate Parity means the same or better prices for the same Training Course type, same dates, same or better amenities and add-ons, same or better restrictions and policies such as booking changes and cancellation policy as are available on the Training Provider’s websites, apps or call-centres (including the customer booking system), or directly at the Training Provider, with any competitor of Tapiit (which includes any online or offline booking or booking agency or intermediary) and/or with any other (online or offline) third party that is a business partner of or in any other way related with or connected to the Training Provider. Rate Parity does not apply in respect of prices and conditions:
(i) offered on any other OTA;
(ii) offered on Offline Channels; provided these prices are not Published Online or Marketed Online; and/or
(iii) that are Unpublished; provided that these prices are not Marketed Online.
Availability Parity means that the Training Provider shall provide Tapiit with such availability (i.e. Training Courses available for booking at the Platform) that are at least as favourable as those provided to any competitor of Tapiit (which includes any online or offline booking or booking agency or intermediary) and/or with any other (online or offline) third party that is a business partner of or in any other way related with or connected to the Training Provider.
2.2.2 The restrictions and conditions (including the Training Course price) for Training Courses made available for booking on the Tapiit Platform shall at all times be in accordance with Clause 2.2.1 and make sense for all parties involved (including purchasers).
2.2.3 Tapiit shall be entitled to give a discount on the Training Course price at its own costs up to the amount of the commission.
2.2.4 Within the spirit of this Agreement and subject at all times to the availability parity set out in Clause 2.2.1, the Training Provider is encouraged to provide Tapiit with fair access to all Training Courses and prices available during the term of the Agreement (during periods of low and high demand (including during fairs, congresses and special events)).
2.3.1 For each booking made on the Platforms by a Purchaser for a Training Course, the Training Provider shall either (i) pay Tapiit a commission (the "Commission") calculated in accordance with Clause 2.3.2 or (ii) pay an annual charge as agreed between Tapiit and the Training Provider (“ Annual Charge ”). Payment shall be made in accordance with Clause 2.4.
2.3.2 The aggregate Commission per booking is equal to the multiple of (i) the number of Training Course places booked by the Purchaser, (ii) the booked price per Training Course (including VAT, sales taxes and such other applicable national, governmental, provincial, state, municipal or local taxes or levies (the "Taxes")) and such other extra's, fees and surcharges which are included in the offered price at the time of booking of the Training Course by a Purchaser on the Platforms, and (iii) the relevant Commission percentage set out in the Agreement (plus VAT/taxes (if applicable)).
Commission will be charged in the event of:
(a) overbooking: at all times, irrespective of ((un)successful/waiver of) charged Training Course price, and/or
(b) a charged cancellation and/or charged no-show: Tapiit charges commission when a partner charges the Purchaser the Training Course price and/or no show/cancellation fee for (chargeable) cancellations and/or no-shows.
The commission shall at all times be calculated in accordance with the confirmed booking.
Notice of any invalid payment method for any booking or cancelled booking, must at all times be made within 96 hours after midnight on the day of the booking. Upon receiving the notification of non-payment, Tapiit will inform the Training Provider and shall promptly process the refund of any commission (if applicable).
In the absence of any notification by the Training Provider to Tapiit (waiver, invalid credit card), Tapiit will assume that the Training Provider has successfully charged the Purchaser and Tapiit will charge commission accordingly.
2.3.3 Unless agreed otherwise in the Agreement, the price shown to Purchasers on the Platforms shall be inclusive of VAT, sales tax, charges and all such other (national, governmental, provincial, state, municipal or local) taxes, fees, charges or levies (to the extent that such other taxes, fees and levies can be reasonably calculated upfront without further information).
2.3.4 In the event that pursuant to (amendment or entering into force of) the applicable law, rules and legislation applicable to the Training Provider, the prices must be shown to Purchasers inclusive of VAT, sales tax and all such other (national, governmental, provincial, state, municipal or local) taxes, fees or levies, the Training Provider shall adjust the prices through the Tapiitnet in accordance with the terms of Clause 2.1.2 and 2.1.4 as soon as possible, but in any event within 5 business days after (i) amendment or entering into force of the relevant law, rules and legislation in this respect applicable to such Training Provider, or (ii) notification thereof by Tapiit.
2.3.5 Tapiitnet shows details of all bookings made with the Training Provider through the Platforms and the corresponding Commission. On the 1st day of each month, an online booking statement (the "Online Reservation Statement") is available on the Tapiitnet showing the bookings of all Purchasers whose date of booking fell in the previous month.
2.4 Payment of Commission or Annual Charge
2.4.1 Commission for bookings in a calendar month that contains the (scheduled) Training Course date for the relevant Purchaser will be invoiced (save for free cancellations made through Tapiit and in accordance with the cancellation policy of the Training Provider) and paid in the subsequent month. The Annual Charge shall be payable 1/12 each month and chargeable at the beginning of each month (or pro rata for any part month). Commission or the Annual Charge shall be payable in accordance with the following terms:
(a) Invoices are processed on a monthly basis and shall be sent to the Training Provider online or by mail, fax or e-mail (at the discretion of Tapiit).
(b) The Commission or monthly part of the Annual Charge invoiced in respect of a month shall be paid by the Training Provider within 14 days from the invoice date.
(c) Payment shall be made by the Training Provider directly
to Tapiit by means of Direct Debit
or in case this is not
(d) All Commission payments or payment of the Annual Charge to be made under this Agreement shall be made in cleared funds, without any deduction or set-off and free and clear of and without deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority. If the Training Provider is compelled to make any such deduction or withholding, it will pay to Tapiit such additional amounts as are necessary to ensure receipt by Tapiit of the full (net) amount as set out in the invoice which Tapiit would have received but for the deduction. The Training Provider is responsible and liable for the payment and remittance of any taxes, levies, imports, duties, charges, fees and withholdings over and above the full (net) Commission or Annual Charge payment due from the Training Provider to Tapiit.
(e) The Commission or Annual Charge invoiced in respect of a month shall be paid by the Training Provider in the relevant currency (and if applicable at the exchange price) as specified in the invoice. Tapiit may at its sole discretion prepare invoices either in a major currency (e.g. UK£/EUR/USD) or the relevant local currency of the Training Provider and subsequently convert the relevant final amount in the local currency or a major currency on the basis of the exchange price of the last day of the relevant month for which the invoice is issued (and not on the day of checkout). The exchange price used shall be the interbank price (closing price as per 4PM EST) as used or promulgated by major international financial banks or service companies from time to time selected by Tapiit.
2.4.2 The Training Provider is responsible for withholding and reporting relevant taxes (i.e. mentioned above in 2.4.1 under (d) applicable to the Commission or Annual Charge due to Tapiit according to the relevant tax regulations and the practices and requests of the tax authorities. The Training Provider shall bear and be responsible for the payment and remittance of the taxes applicable to the Commission or Annual Charge (payments) and the associated late payment interests and penalties imposed by the tax authority for failing to withhold and report any taxes applicable to the Commission or Annual Charge. If required, the Training Provider shall be solely responsible to negotiate and agree with the relevant tax authorities on the tax treatments of the Commission or Annual Charge (payments). The Training Provider shall upon first request of Tapiit provide Tapiit with (photo/scanned-) copies of tax payment certificates/tax exemption certificates upon each remittance of the Commission or Annual Charge payment. The Training Provider represents and covenants that it is duly registered with all relevant tax authorities (including applicable statutory (local) revenue collection authorities) as a service provider.
2.4.3 In the event of a dispute between Tapiit and the Training Provider (e.g. on the amount of the Commission), any undisputed amount of the Commission will be paid in accordance with the terms of this Agreement, notwithstanding the status or nature of the dispute.
2.4.4 In the case of late payment of the Commission or any part of the Annual Charge, Tapiit reserves the right to claim statutory interest, to suspend its service under the Agreement (e.g. by suspending the Training Provider from the Platforms), and/or to ask for a bank guarantee or other form of financial security from the Training Provider.
2.5 Reservation, Purchaser Reservation, complaints and We Price Match
2.5.1 When a booking is made by a Purchaser on the Platform, the Training Provider shall receive a confirmation for every booking made via Tapiit, which confirmation shall include the name of the Training Course, the Training Course date, the Purchaser's name, address and credit card details (collectively "Customer Data") and such other specific request(s) made by the Purchaser. Tapiit is not responsible for the correctness and completeness of the information (including credit card details) and dates provided by Purchasers and Tapiit is not responsible for the payment obligations of the Purchasers relating to their (online) booking. For the avoidance of doubt, the Training Provider shall on a regular basis (but at least on a daily basis) check and verify on the Tapiitnet (the status of) the bookings made.
2.5.2 By making a booking through the Platforms a direct contract (and therefore legal relationship) is created solely between the Training Provider and the Purchaser (the "Purchaser Reservation").
2.5.3 The Training Provider is bound to accept a Purchaser as its contractual party, and to handle the online booking in compliance with the Training Provider Information (including price) contained on the Platforms at the time the booking was made and the booking confirmation, including any supplementary information and/or wishes made known by the Purchaser.
2.5.4 Other than the fees, extra's and (sur-)charges as set out in the confirmed booking, the Training Provider shall not charge the customer any transaction/administration fee or charge for the use of any payment method (e.g. credit card charge).
2.5.5 Complaints or claims in respect of (the service offered, rendered or provided by) the Training Provider and/or the Training Course or specific requests made by Purchasers are to be dealt with by the Training Provider, without mediation by or interference of Tapiit. Tapiit is not responsible for and disclaims any liability in respect of such claims from the Purchasers. Tapiit may at all times and at its sole discretion (a) offer customer (support) services to a Purchaser, and/or (b) act as intermediate between the Training Provider and a Purchaser, or (c) otherwise assist a Purchaser in its communication with or actions against the Training Provider.
2.5.6 In the event of a valid claim of a Purchaser under the We Price Match, Tapiit shall promptly notify the Training Provider of such claim and provide the Training Provider with the relevant details of the claim. The Training Provider shall immediately adjust –to the extent applicable– the price(s) made available at the Tapiit Platform such that the lower price is available for further booking(s). Furthermore, the Training Provider shall immediately adjust the price in the booking made by the relevant Purchaser in its administration. The Training Provider shall offer the Training Course for the lower price and shall either (i) settle the difference between the booked price and the lower price by charging the Purchaser for the lower price, or (ii) refund (in cash) to the Purchaser the difference between the two prices.
2.6 Overbooking and cancellation
2.6.1 The Training Provider shall provide the Training Courses booked and in the event that the Training Provider is not able to meet its obligations under this Agreement for any reason whatsoever, the Training Provider shall promptly inform Tapiit via Customer Service (customerservice@Tapiit; whereas the subject line of each email shall state "overbooking"). The Training Provider will use its best endeavours to procure alternative arrangements of equal or superior quality at the expense of the Training Provider and in the event that no Training Course is available, the Training Provider will:
(a) find a suitable alternative Training Course;
(b) reimburse and compensate Tapiit and/or the Purchaser for all reasonable costs and expenses made, suffered, paid or incurred by the Purchaser and/or Tapiit due to or caused by the overbooking. Any amount charged by Tapiit in this respect shall be paid within 14 days after receipt of the invoice.
2.6.2 The Training Provider is not allowed to cancel any online booking.
2.6.3 Cancellations made by Purchasers before the time and date beyond which a cancellation fee applies will not attract commission. Cancellations made by Purchasers after the time and date beyond which a cancellation fee applies will attract Commission in accordance with the terms of this Agreement.
2.7 Credit Card guarantee
2.7.1 Guarantee of the booking is based on the credit card details provided by the Purchaser or the person responsible for the booking. The Training Provider shall at all times accept all major credit cards (including Master Card, Visa and American Express) for guarantee of a booking. The Training Provider is responsible for the verification of the validity of these credit card details, the (pre) authorization of the credit card and the limit of credit on the date of the Training Course. The Training Provider shall upon receipt of a booking, promptly verify and pre-authorize the credit card. If the credit card offers no guarantee, the Training Provider will immediately notify Tapiit, which subsequently invites the Purchaser to guarantee the booking in an alternative manner. If the Purchaser is unable or unwilling to do this, Tapiit may cancel the booking upon request of the Training Provider. If the credit card (or any alternative guarantee made by the Purchaser) is not effective or valid for any reason, this shall always be at the risk and for the account of the Training Provider. Bookings which are cancelled by Tapiit pursuant to this Clause 2.7.1 will not attract any Commission.
2.7.2 The Training Provider shall be responsible for charging the Purchaser for the Training Course, no show fee or charged cancellation (including applicable Taxes for which the Training Provider shall be liable and remit to the relevant tax authorities). Credit cards shall be charged in the same currency as set out in the booking of a Purchaser. To the extent that this is not possible, the Training Provider may charge the credit card of the Purchaser in a different currency with a reasonable and fair exchange price.
2.8 Data Privacy, Messaging and Usage
The Training Provider understands and agrees that the Tapiit Data Privacy Guidelines apply and form an integral part of this Agreement. The Tapiit Data Privacy Guidelines are set out in Annex 1.
2.9 Direct marketing to Purchasers
The Training Provider agrees not to specifically target Purchasers that have been obtained via Tapiit in either online or offline marketing promotions or solicited or unsolicited mail.
2.10 Force Majeure Event
In the event of a Force Majeure Event, the Training Provider shall not charge (and shall repay (if applicable)) the Purchasers affected by the Force Majeure Event any fee, costs, expenses or other amount (including the (non-refundable) price or the no-show or cancellation fee) for any no-show or cancellation due to the Force Majeure Event. In the event of reasonable and justified doubt, the Training Provider may ask a Purchaser to provide reasonable evidence of the causality between the Force Majeure Event and cancellation or no-show (and provide Tapiit upon request with a copy of such evidence). In order for Tapiit to register any cancellation or no-show due to a Force Majeure Event, the Training Provider shall inform Tapiit within 2 business days after the first date of the Training Course. Tapiit will not charge any Commission in the event of a registered no-show or cancellation due to the Force Majeure Event.
3.1 The Training Provider hereby grants Tapiit a non-exclusive, royalty free and worldwide right and license (or sublicense as applicable):
(a) to use, reproduce, have reproduced, distribute, sublicense, communicate and make available in any method and display those agreed upon elements of the Intellectual Property Rights of the Training Provider as provided to Tapiit by the Training Provider pursuant to this Agreement and which are necessary for Tapiit to exercise its rights and perform its obligations under this Agreement;
(b) to use, reproduce, have reproduced, process, distribute, sublicense, display and utilize (including without limitation to publicly perform, modify, adapt, communicate, reproduce, copy and make available to the public in any manner whatsoever) the Training Provider Information.
3.2 Tapiit may sublicense, make available, disclose and offer the Training Provider Information (including the relevant Intellectual Property Rights) of the Training Provider and special offers made available by the Training Provider on the Platforms and all such further rights and licenses set out in this Agreement via or in collaboration with (the websites, apps, platform, tools or other devices of) affiliated companies and/or third parties (the "Third Party Platforms").
3.3 In no event shall Tapiit be liable to the Training Provider for any acts or omissions on the part of any Third Party Platforms. The sole remedy for the Training Provider in respect of such Third Party Platforms is (i) to request Tapiit (which has the right and not the obligation) to disable and disconnect with such Third Party Platform, or (ii) termination of this Agreement, all in accordance with the terms of this Agreement.
4. RANKING, GUEST REVIEWS AND MARKETING
4.1.1 The order in which the Training Provider is listed on the Platforms (the "Ranking"), is determined automatically and unilaterally by Tapiit. Ranking is based on and influenced by various factors, including but not limited to whether it is paying Commission or an Annual Charge (where an Annual Charge will rank above Training Providers paying on a Commission basis), the minimum availability stated by the Training Provider, the number of bookings related to the Training Provider’s previous Training Courses (the "Conversion"), the volume realized by the Training Provider, the ratio of cancellations, the Purchaser review scores, the number and type of complaints from Purchasers and the on-time payment record of the Training Provider.
4.1.2 The Training Provider has the possibility to influence
its own ranking by
changing the commission percentage, paying an
additional fee and continuously improving the other factors. The Training
Provider shall not make any claim against Tapiit regarding the Ranking of Training
Provider; the Ranking system is automated. The automated Ranking (as defined
hereafter) system uses on-time payment as a factor so failure to pay
Commissions or any part of the Annual Charge on-time will result in a reduced
4.3 (Online) marketing and PPC advertising
4.3.1 Tapiit is entitled to promote the Training Provider using the Training Provider’s name(s) in online marketing, including email marketing and/or pay-per-click (PPC) advertising. Tapiit runs online marketing campaigns at its own costs and discretion.
4.3.2 The Training Provider is aware of the working methods of search engines, such as spidering of content and ranking of URLs. Tapiit agrees that if the Training Provider becomes aware of behaviour by Third Party Platforms that breaches the Training Provider’s Intellectual Property Rights, then the Training Provider will notify Tapiit in writing with details of the conduct and Tapiit will use its commercially reasonable endeavours to ensure that the relevant third party takes steps to remedy the breach.
4.3.3 The Training Provider agrees not to use, display, benefit from, include, utilize, refer to or specifically target the Tapiit brand/logo (including trade name, trade mark, service mark or other similar indicia of identity or source) whether directly through keyword purchases that use Tapiit's Intellectual Property Rights, for price comparison purposes or any other purposes (whether on the Training Provider platform or any third party platform, system or engine or otherwise), unless approved in writing by Tapiit. The Training Provider shall not (directly or indirectly) use or create any (pay-per-click) advertisement on (meta)search sites which advertisement (re)directs and links to the relevant Training Provider landing page on the Platforms where the Training Provider is advertised, promoted and/or included (no double serving).
5. REPRESENTATIONS AND WARRANTIES
5.1 The Training Provider represents and warrants to Tapiit that for the term of this Agreement:
(i) the Training Provider has all necessary rights, power and authority to use, operate, own (as applicable), (sub)license and have Tapiit make available on the Platforms (a) the relevant accommodation, and (b) the Intellectual Property Rights in respect of, as set out or referred to in the Training Provider Information made available on the Platforms;
(ii) the Training Provider holds and complies with all permits, licenses and other governmental authorisations, registrations and requirements necessary for conducting, carrying out and continuing its operations and business and making the Training Provider available on the Platforms for booking (including for short term stay)
(iii) the price for the Training Courses advertised on the Platforms correspond to the best available price for an equivalent Training Course and a better price cannot be obtained by a Purchaser making a booking with the Training Provider directly or via another (third) party or via another medium or channel, and
(iv) the Training Provider and its directors and (direct, indirect and ultimate (beneficial)) owners (and their directors) are not in any way connected to, part of, involved in or related to or under the control, management or ownership of:
(a) terrorists or terrorist organizations;
(b) parties / persons (i) listed as (special) designated nationals/entities or blocked person/entities, or (ii) otherwise subject to any applicable trade embargo, or financial, economic and trade sanctions, and
(c) parties / persons guilty of money laundering, bribery, fraud or corruption.
The Training Provider shall immediately notify Tapiit in the event of a breach of this Clause 5.1 paragraph (iv).
5.2 Each Party represents and warrants to the other Party that for the term of this Agreement:
(i) it has the full corporate power and authority to enter into and perform its obligations under this Agreement;
(ii) it has taken all corporate action required by it to authorise the execution and performance of this Agreement;
(iii) this Agreement constitutes legal valid and binding obligations of that Party in accordance with its terms, and
(iv) each Party shall comply with all applicable governmental laws, codes, regulations, ordinances and rules of the country, state or municipal under which law the relevant Party is incorporated with respect to the products (to be) offered and/or services (to be) rendered by such Party.
5.3 Except as otherwise expressly provided in this Agreement, neither Party makes any representations or warranties, express or implied, in connection with the subject matter of this Agreement and hereby disclaims any and all implied warranties, including all implied warranties of merchantability or fitness for a particular purpose regarding such subject matter.
5.4 Tapiit disclaims and excludes any and all liability in respect of the Training Provider which is related to any (temporary and/or partial) breakdown, outages, downtime, interruption or unavailability of the Platforms, the Service and/or the Tapiitnet. Tapiit provides (and the Training Provider accepts) the Service, the Platform and the Tapiitnet on an "as is" and "as available" basis.
6. INDEMNIFICATION AND LIABILITY
6.1 Each Party (the "Indemnifying Party") shall be liable towards, and compensate, indemnify and hold the other Party (or its directors, officers, employees, agents, affiliated companies and subcontractors) (the "Indemnified Party") harmless for and against any direct damages, losses (excluding any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or any special, indirect or consequential losses and/or damages), liabilities, obligations, costs, claims, claims of any kind, interest, penalties, legal proceedings and expenses (including, without limitation, reasonable attorneys’ fees and expenses) actually paid, suffered or incurred by the Indemnified Party pursuant to:
(i) a breach of this Agreement by the Indemnifying Party, or
(ii) any claim from any third party based on any (alleged) infringement of the third party's Intellectual Property Right by the Indemnifying Party.
6.2 The Training Provider shall fully indemnify, compensate and hold Tapiit (or its directors, officers, employees, agents, affiliated companies and subcontractors) harmless for and against any liabilities, costs, expenses (including, without limitation, reasonable attorneys’ fees and expenses), damages, losses, obligations, claims of any kind, interest, penalties and legal proceedings paid, suffered or incurred by Tapiit (or its directors, officers, agents, affiliated companies and subcontractors) in connection with:
(i) all claims made by Purchasers concerning inaccurate, erroneous or misleading information of the Training Provider on the Platforms, including the Training Provider Information;
(ii) all claims made by Purchasers concerning or related to the Training Provider overbooking or (partly) cancelling or wrong bookings or repayment, refund or charge back of the Training Course price;
(iii) to the extent that any claims under or pursuant to the We Price Match are not settled between the Purchaser and the Training Provider (by payment of the lower price), all claims made by Purchasers regarding or pursuant to the We Price Match;
(iv) all other claims from Purchasers which are wholly or partly attributable to or for the risk and account of the Training Provider (including its directors, employees, agents, representatives and the premises of the Training Provider) (including claims related to (lack of) services provided or product offered by the Training Provider) or which arise due to tort, fraud, wilful misconduct, negligence or breach of contract (including the Purchaser Reservation) by or attributable to the Training Provider (including its directors, employees, agents, representatives and the premises of the Training Provider) in respect of a Purchaser or its property; and
(v) all claims against Tapiit in relation to or as a result of the failure of the Training Provider to (a) properly register with relevant tax authorities, or (b) pay, collect, remit or withhold any applicable Taxes, fees and (sur)charges levied or based on the services or other charges hereunder in the relevant jurisdiction (including Training Course price and commission payments).
6.3 Save as otherwise provided for in this Agreement, the maximum liability of one Party to any other party in aggregate for all claims made against such party under or in connection with this Agreement in a year shall not exceed the aggregate Commission received or paid by such Party in the preceding year or Annual Charge (as applicable) or EUR 100,000 (whichever is higher), unless in the event of tort, fraud, wilful misconduct, gross negligence, deliberate non-disclosure or deliberate deception on the part of the liable Party (i.e. the Indemnifying Party), in which event the limitation of liability is not applicable for such liable party. Parties agree and acknowledge that none of the limitations of liability set out in Clause 6 shall apply to any of the indemnifications in respect of third party claims (e.g. claims from Purchasers as described in 6.2) or third party liabilities.
6.4 In the event of a third party claim, Parties shall act in good faith and use their commercially reasonable efforts to consult, cooperate and assist each other in the defence and/or settlement of such claim, whereas the indemnifying Party shall be entitled to take over a claim and assume the defence (in consultation and agreement with the indemnified Party and with due observance of both Parties' interests), and neither Party shall make any admission, file any papers, consent to the entry of any judgment or enter into any compromise or settlement without the prior written consent of the other Party (which shall not unreasonably be withheld, delayed or conditioned).
6.5 In no event shall any Party be liable to any other Party for any indirect, special, punitive, incidental or consequential damages or losses, including loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim, whether such damages are (alleged as) a result of a breach of contract, tort or otherwise (even if advised of the possibility of such damages or losses). All such damages and losses are hereby expressly waived and disclaimed.
6.6 Each Party acknowledges that remedies at law may be inadequate to protect the other Party against any breach of this Agreement and without prejudice to any other rights and remedies otherwise available to the other Party, each Party will be entitled to injunctive relief and specific performance.
7. TERM, TERMINATION AND SUSPENSION
7.1 Unless agreed otherwise, this Agreement shall commence on the date hereof for an indefinite period of time. Each Party may terminate this Agreement at any time and for any reason, by written notice to the other Party on giving 14 days written notice.
7.2 Each Party may terminate this Agreement (and remove and close the Training Provider from the Platforms) or suspend (all or part of its obligations, covenants and undertakings under) this Agreement in respect of the other Party, with immediate effect and without a notice of default being required in case of:
(a) a material breach by the other Party of any term of this Agreement (e.g. delay of payment, insolvency, breach of price parity guarantee, the provision of wrong information or receipt of a significant number of Purchaser complaints); or
(b) (filing or submission of request for) bankruptcy or suspension of payment (or similar action or event) in respect of the other Party.
7.3 Any notice or communication by Tapiit of "closure" ("close", "closed") of the Training Provider on the Platform, website (or similar wording) shall mean termination of the Agreement. After termination, suspension or closure, the Training Provider shall honour outstanding bookings for Purchasers and shall pay all commissions (plus costs, expenses, interest if applicable) due on those bookings in accordance with the terms of this Agreement.
7.4 The following events shall in any event be regarded as a material breach and entitle Tapiit to immediately terminate (close) or suspend (all or part of its obligations, covenants and undertakings under) the Agreement (without a notice of default):
(i) the Training Provider fails to pay Commissions or any part of the Annual Charge on or before the due date;
(ii) the Training Provider posts incorrect or misleading Training Provider Information on the Tapiitnet;
(iii) the Training Provider fails to maintain Information on the Tapiitnet resulting in over-bookings at any Training Course;
(iv) the Training Provider fails to accept a booking at the price shown on a booking;
(v) the Training Provider overcharges one or more Purchasers;
(vi) the Training Provider charges a Purchaser’s credit card prior to the Training Course without an express agreement from the Purchaser (a Purchaser provides express agreement if they select a non-refundable or an advance purchase Training Course);
(vii) Tapiit receives one or more legitimate and serious complaint(s) from one or more Purchaser(s) who made bookings with the Training Provider;
(viii) misuse of the Purchaser review process by any behaviour that results in a review appearing on the Platforms that is not an honest expression of a real experience by a real Purchaser of a Training Course;
(ix) inappropriate, unlawful or unprofessional behaviour towards Purchasers or Tapiit staff; or
(x) any (alleged) safety, privacy or health issues or problems in respect of the Training Provider or its facilities (the Training Provider shall at its own costs and upon first request of Tapiit deliver the relevant permits, licenses, certificates or such statements issued by an independent expert evidencing and supporting its compliance with applicable (privacy, safety and health) laws and legislation).
7.5 Upon termination and save as set out otherwise in this Agreement, this Agreement shall absolutely and entirely terminate in respect of the terminating Party and cease to have effect without prejudice to other Party’s rights and remedies in respect of an indemnification or a breach by the other (terminating) Party of this Agreement. Clause 2.4, 6, 7.6, 8, 9 and 10 (and such other clauses that by nature survive termination) shall all survive termination.
7.6 In the event of a "change of ownership" in respect of the ownership or operation of a Training Provider (including any assignment, transfer, novation of this Agreement), the Training Provider agrees and acknowledges that the new owner/operator shall be entitled to use the Training Provider Information as made available by the Training Provider prior to the change of ownership (including the Purchaser reviews) and have access to the relevant (financial and operational) performance, management and (customer) data and the Training Provider shall in any event be and remain responsible and liable for all obligations, claims and liabilities related to the period, or accrued prior to the change of ownership.
7.7 Tapiit shall be entitled to terminate this Agreement with immediate effect in the event of (termination due to) a breach of contract of (including act or event of default or failure to perform any obligation under) any other agreement between Tapiit on the one hand and the Training Provider (or any Party that (directly/indirectly) owns or controls, is controlled by or under the common control with the Training Provider) on the other hand.
8. BOOKS AND RECORDS
8.1 The systems, books and records of Tapiit (including Tapiitnet, the Online Reservation Statement, faxes and/or emails) shall be considered conclusive evidence of the existence and receipt by the Training Provider of the bookings made by the Purchaser and the amount of the commission of the Training Provider or damages or costs due to Tapiit under this Agreement, unless the Training Provider can provide reasonable and credible counter-evidence.
8.2 The Training Provider shall upon first request of Tapiit fully cooperate and assist Tapiit with (and disclose all reasonably requested information in respect of) the identification of the (ultimate) owner, manager and/or controller of the Training Provider.
9.1 Parties understand and agree that in the performance of this Agreement, each Party may have access to or may be exposed to, directly or indirectly, confidential information of the other party (the " Confidential Information "). Confidential Information includes Customer Data, transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information that either a disclosing party designates as being private or confidential or of which a receiving party should reasonably know that it should be treated as private and confidential.
9.2 Each Party agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party and receiving party shall not use any Confidential Information for any purpose except in furtherance of this Agreement; (b) it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties and agents (the "Permitted Persons") to maintain, the confidentiality and secrecy of the Confidential Information; (c) it shall disclose Confidential Information only to those Permitted Persons who need to know such information in furtherance of this Agreement; (d) it shall not, and shall use prudent methods to ensure that the Permitted Persons do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information; and (e) it shall return or destroy all ((hard and soft) copies of) Confidential Information upon written request of the other Party.
9.3 Notwithstanding the foregoing, (a) Confidential Information shall not include any information to the extent it (i) is or becomes part of the public domain through no act or omission on the part of the receiving party, (ii) was possessed by the receiving party prior to the date of this Agreement, (iii) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto, or (iv) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, and (b) nothing in this Agreement shall prevent, limit or restrict a Party from disclosing this Agreement (including the any technical, operational, performance and financial data (but excluding any Customer Data)) in confidence to an affiliated (group) company.
9.4 Parties shall use commercially reasonable efforts to safeguard the confidentiality and privacy of Customer Data and to protect it from unauthorized use or release. Each Party agrees to comply with all applicable (data and privacy) laws, rules and regulations of the jurisdiction where such Party is incorporated (including (if applicable) Directives 95/46/EC and 2002/58/EC (as amended) on the processing of personal data and the protection of privacy).
10.1 Neither party shall be entitled to assign, transfer, encumber any of its rights and/or the obligations under this Agreement without the prior written consent of the other party, provided that Tapiit may assign, transfer, encumber any of its rights and/or the obligations under this Agreement (in whole or in part or from time to time) to an affiliated company without the prior written consent of the Training Provider. Notwithstanding anything to the contrary, any assignment, novation or transfer by the Training Provider shall not relieve the assignor/transferor of its obligations under the Agreement.
10.2 All notices and communications must be in English, in writing, and sent by email or nationally recognized overnight air courier to the applicable facsimile number or address set out in the Agreement.
10.3 This Agreement (including the schedules, annexes and appendixes, which form an integral part of this Agreement) constitutes the entire agreement and understanding of the Parties with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, ((non) binding) offers, undertakings or statements regarding such subject matter (including vis-à-vis the Training Provider).
10.4 If any provision of this Agreement is or becomes invalid or non-binding, the Parties shall remain bound by all other provisions hereof. In that event, the Parties shall replace the invalid or non-binding provision by provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
10.5 Save as set out otherwise in this Agreement, this Agreement shall be exclusively governed by and construed in accordance with the laws of the Isle of Man. Save as set out otherwise in this Agreement, any disputes arising out or in connection with this Agreement shall exclusively be submitted to and dealt with by the courts of the Isle of Man.
10.6 Parties agree and acknowledge that notwithstanding Clause 10.5, nothing in this Agreement shall prevent or limit Tapiit’s right to bring or initiate any action or proceeding or seek interim injunctive relief or (specific) performance before or in any competent courts where the Training Provider is established or registered under the laws of the relevant jurisdiction where the Training Provider is established or registered and for this purpose, the Training Provider waives its right to claim any other jurisdiction or applicable law to which it might have a right.
10.7 The original English version of these Terms may have been translated into other languages. The translated version of the English Terms is a courtesy and office translation only and the Training Provider cannot derive any rights from the translated version. In the event of a dispute about the contents or interpretation of these terms and conditions of this Agreement or in the event of a conflict, ambiguity, inconsistency or discrepancy between the English version and any other language version of these Terms, the English language version shall prevail, apply and be binding and conclusive. The English version shall be used in legal proceedings. The English version is available on the following website www.tapiitmaritime.com and shall be sent to you upon written request.
10.8 In respect of (or as an award for) the execution, delivery, sealing, registration, filing of, and/or the execution, performance or delivery under or pursuant to, the Agreement, the Training Provider (including its employees, directors, officers, agents or other representatives) shall (i) not directly or indirectly (a) offer, promise or give to any third party (including any governmental official or political party('s official, representative or candidate)), or (b) seek, accept or get promised for itself or for another party, any gift, payment, reward, consideration or benefit of any kind which would or could be construed as bribery or an illegal or corrupt practice, and (ii) comply with all applicable laws governing anti-bribery and corrupt gifts and practices (including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act).
10.9 The Agreement may be entered into online or by way of executing a separate counterpart or by pdf or fax copy, each of which (copies) shall be deemed an original, valid and binding. The Agreement only enters into force and effect upon written confirmation of acceptance and approval of the Training Provider by Tapiit. By registering and signing up to the Tapiit partner programme, the Training Provider agrees, acknowledges and accepts the terms and conditions of this Agreement. The Agreement does not need seal to make it valid, binding and enforceable.
10.10 Due to applicable anti-money laundering, anti-corruption, anti-terrorists financing and anti-tax evasion laws and legislation, Tapiit is restricted from making the Service available to and accepting payments from or making, processing or facilitating payments to a bank account (the "Bank Account") that is not related to the jurisdiction where the Training Provider is located and (but in any event) insofar any of the following warranties is untrue. The Training Provider hereby represents and warrants that (notwithstanding the jurisdiction of the Bank Account):
(i) it holds and complies with all permits, licenses and other governmental licenses, permits and authorizations necessary for conducting, carrying out and continuing its operations and business (including holding and using of the Bank Account);
(ii) it is the holder of the Bank Account;
(iii) the payment and transfer to/from the Bank Account is at arm's length and in accordance with all applicable laws, legislation, codes, regulations, ordinances and rules and not in violation of any applicable anti-money laundering, anti-corruption, anti-terrorists financing or anti-tax evasion (tax) law, treaty, regulation, code or legislation, and
(iv) the Bank Account is not (directly or indirectly) used for money laundering, terrorists financing, tax evasion, tax avoidance or other illegal activities.
The Training Provider hereby agrees to fully compensate and indemnify Tapiit and its affiliated companies for all damages, losses, claims, penalties, fines, costs and expenses suffered, paid or incurred by Tapiit (or any of its affiliated group companies (including any of its/their directors, officers, employees, agents or representatives)) for any (threatening or alleged) claim (including penalty) from any government, authority, organization, company, party or person that the payment to, through or from the Bank Account is illegal or a violation of any applicable (anti-corruption/ anti-money laundering/anti-tax evasion/anti-terrorists financing) laws, regulations, codes or legislation.
DATA PRIVACY GUIDELINES
These Data Privacy Guidelines (the "Guidelines") set forth the terms and conditions under which Tapiit provides its service to and for the benefit of Training Providers. By using the Tapiit services, the Training Provider agrees to and accepts the following Guidelines.
1. Scope, Definitions and Interpretation
1.1 These Guidelines form an integral part of the agreement between the Training Provider and Tapiit (including any applicable general delivery terms (the "GDTs") and collectively with the agreement, the "Agreement")) and must be read in conjunction therewith. Except as otherwise provided for herein, the terms and conditions of the Agreement remain unchanged and in full force and effect. If there is conflict between this Guideline and the Agreement, the terms of the Guidelines will prevail. The Training Provider is aware that the Tapiit online services are operated by Tapiit Limited located in the Isle of Man. Where the contracting party to Training Provider is an affiliate of Tapiit Limited (rather than Tapiit Limited)., any reference in the following to Tapiit shall also refer to the relevant affiliate of Tapiit Limited as applicable.
1.2 Unless defined otherwise in these Guidelines, capitalized terms have the same meaning as set out in the Agreement.
2. Data Privacy
2.1 Each Party shall take reasonable steps to protect personal data (i.e., information that relates to an identified or identifiable natural person) processed in the context of the Agreement against loss and unauthorized access, use, deletion and disclosure; and, as required by applicable laws, process personal data in a manner that ensures appropriate confidentiality and security of the personal data.
2.2 The Training Provider acknowledges that it is responsible for the handling and security of the personal data it holds and processes within the context of the Agreement and Tapiit acknowledges that it is responsible for the handling and security of the personal data it processes within the context of the Agreement. Training Provider shall provide personal data to Tapiit only if such disclosure is permitted under applicable laws. Tapiit shall be a data controller (i.e. determines the purposes and means of the data processing) for any personal data it processes. Training Provider shall become data controller upon receipt of the personal data either directly or indirectly through a connectivity partner. Unless agreed otherwise, connectivity partners handle personal data on behalf of a Training Provider. Each Party shall be solely responsible for the processing of personal data by itself or on its behalf in accordance with applicable data protection laws. The Parties shall, if required by applicable laws, cooperate in good faith and provide assistance in the event data subjects wish to exercise their rights of access, correction, erasure or portability, or in case of requests from competent authorities to demonstrate compliance with obligations applicable to the Party.
2.3 To the extent Tapiit processes personal data that is not Purchaser data in association with the Agreement, such personal data shall be processed by Tapiit in accordance with the Tapiit Privacy Statement applicable to Training Providers, which can be found on www.tapiitmaritime.com. The Training Provider warrants that it has, as required by applicable laws, duly and diligently informed (and as required by applicable laws, obtained consents from) its staff members, agents, representatives and other individuals about the processing of their personal data by Tapiit and the cross-border transfer of their personal data to countries that do not provide for adequate protection of rights of personal data subjects.
2.4 Training Provider shall process personal data that Training Provider received from Tapiit as part of the Services under the Agreement only so far as necessary to perform the requested booking services, or as otherwise agreed to between the Parties in writing, in accordance with applicable law, including (if applicable) the European Data Protection Directive (as amended or replaced by subsequent legal acts) on the processing of personal data and the protection of privacy or the EU General Data Protection Regulation or if Training Provider has obtained explicit consent from the Purchaser to any other use of Purchaser’s personal data.
2.5 If the Training Provider will or intends to notify Purchasers or other parties (e.g., competent data protection and/or government authorities) of a data breach (any discovered or suspected incident resulting in accidental, unlawful, or unauthorized destruction of, loss of, alteration of, access to, disclosure of, or use of personal data) involving personal data received by the Training Provider from Tapiit, and the notification will reference Tapiit, Training Provider shall first, to the extent permitted by law, provide any draft notification and related correspondence to Tapiit and reasonably cooperate with Tapiit in finalizing such notification and correspondence and other communication that may follow with the Purchasers or authorities. Training Provider acknowledges that Tapiit retains the right to voluntarily inform its users about any such data breach. For the avoidance of doubt, Training Provider shall not notify Purchasers or other parties of a data breach involving personal data that Tapiit hosts on the Tapiitnet (defined in 4.2) without prior written authorization from Tapiit.
2.6 In case the party contracting with Tapiit Limited is not directly processing personal data of Purchasers under its own control (e.g. as may be applicable in case of chains, property management companies etc.), this Clause 2 shall be read to apply to the Training Provider ultimately processing the personal data of Purchasers. In such case, either contracting party and/or Training Provider may be considered the (sole) data controller of any Purchaser data processed in the context of the Agreement.
3. Messaging Tools
Tapiit may from time to time as part of its service to the Purchaser and Training Provider facilitate the communication between the Purchaser and the Training Provider (the "Messaging Service") using tools provided by Tapiit. Tapiit will process communications sent via the Messaging Service (the “Communications”) in accordance with the Tapiit Privacy and Cookies Statement applicable to Training Providers available on www.tapiitmaritime.com. The Training Provider hereby irrevocably and unconditionally agrees and consents to the processing of Communications by Tapiit (including any processing, storage, receipt, access, insight and screening of communications by Tapiit) and states that it has duly and diligently informed (and as required by applicable laws, obtained consent from) the Training Provider’s employees, agents, representatives, staff members and other individuals of/for/when using the Communication Service for or on the Training Provider’s behalf (including the processing, receipt, insight, storage, screening and access of such communications by Tapiit).
4. Use of Tapiit Online Services
4.1 Tapiit may offer an extranet facility to the Training Provider (the “Tapiitnet”). The Training Provider shall safeguard and keep the user ID and password confidential and secure, and shall not disclose the user ID and password to any person other than those who need to have access to the Tapiitnet to fulfil their job responsibilities. The Training Provider shall notify Tapiit at customerservice@Tapiit.com within 24 hours of any actual or suspected breach of security or confidentiality involving the user ID and password used to access the Tapiit Tapiitnet.
4.2 The Training Provider agrees not to use the Messaging Service to send unsolicited electronic communications to any individual. Training Provider will fully indemnify Tapiit for any claims of third parties or fines resulting from unlawful or unauthorized use of the Messaging Service by Training Provider for its own purposes.
5. Payment Card Security
To the extent the Training Provider processes payment card information obtained by the Training Provider through the Tapiit booking services, the Training Provider is required to comply and to have its service providers comply on an ongoing basis with the requirements, compliance criteria and validation processes set forth in the current Payment Card Industry (PCI) Data Security Standard issued by the major credit card companies.