1. DEFINITIONS
In this Agreement the following definitions shall apply:
1.1 “Agreement” means these Terms together with the White Label Order Form;
1.2 “Click-Through Revenue” means the estimated revenue generated by Skyscanner as a direct result of End-User Clicks;
1.3 “Confidential Information” means the existence and content of this Agreement and all information which a Party may have or acquire before or after the date of the Agreement which relates to a Party’s business, products, developments, trade secrets, know-how or other matters connected with the Services and information concerning a Party’s relationships with actual or potential clients, customers or suppliers and all other information designated as confidential or which ought reasonably to be considered confidential;
1.4 “Configuration Engine” means the online configuration engine portal which the Customer is provided with access to as part of the White Label Service;
1.5 “Customer Brands” means the Intellectual Property Rights in any branding, trade names, trade marks or get-up owned by or licensed to by the Customer including, without limitation, as set out in the White Label Order Form;
1.6 “Customer Integration” shall have the meaning given to it in clause 1.18;
1.7 “Customer Payment” shall have the meaning ascribed to it in the White Label Order Form;
1.8 “Customisation Requirements” means any changes to the look and feel of the White Label Service requested by the Customer and agreed by Skyscanner and set out in the White Label Order Form;
1.9 “Customer Site” means the Customer operated website at the URL specified in the White Label Order Form, or any geographical variance, and any Customer applications for use on mobile devices which incorporate the same or similar functionality and/or content, or any other website agreed between the parties in writing (including by email) from time to time;
1.10 “Effective Date” shall mean the date specified on the White Label Order Form;
1.11 “End User” means any human end-user of the Customer Site;
1.12 “End-User Clicks” means the referral of an End User from the White Label Service to any other website(s);
1.13 “End-User Clicks Threshold” means two thousand End-User Clicks or more each month;
1.14 “Exclusivity Period” means the period commencing on the Effective Date and ending on the termination or expiration of the Agreement.
1.15 “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know- how 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 subsist or will subsist now or in the future in any part of the world;
1.16 “Insolvency Event” means (i) a party suspends, or threatens to suspend, its business or payment of its debts, or is unable to pay its debts as they fall due; or (ii) it commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts; or (iii) steps are taken by itself or a third party, towards its winding up or the appointment of an administrator; or any event occurs, or proceeding is taken, with respect to it in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned herein;
1.17 “Invalid End-User Clicks” means any End-User Click which in Skyscanner’s reasonable opinion is generated by any automated, deceptive or fraudulent means including, without limitation, electronic web ‘bots’ or ‘spiders’;
1.18 “Permitted Purpose” means the purpose of the Customer integrating the White Label Service into the Customer Site using HTML integration code in accordance with the directions of Skyscanner as displayed on the Skyscanner Site or otherwise notified by Skyscanner from time to time (“Customer Integration”) in order to enable End-Users to access Travel Data from the Customer Site via the White Label Service;
1.19 “Revenue Share” shall have the meaning ascribed to it in accordance with the White Label Order Form;
1.20 “Skyscanner Cookie Policy” shall mean Skyscanner’s cookie policy as amended from time to time, available at www.skyscanner.net/cookiepolicy.aspx;
1.21 “Skyscanner Group Company” means Skyscanner and any entity that directly or indirectly controls, is controlled by, or is under common control with Skyscanner;
1.22 “Skyscanner Marks” means the words “Skyscanner”, “Tianxun” or any other trade marks, trade names or brand names of any Skyscanner Group Company in any language or any variations thereof;
1.23 “Skyscanner Site” means the website located at the URL www.skyscanner.net (or any other URL which replaces this URL or is used in addition to target specific geographic markets) and any Skyscanner applications for use on mobile devices which incorporate the same or similar functionality and/or content;
1.24 “Supplier Set-up Form” means the form set out in the White Label Order Form;
1.25 “Travel Data” means flight prices, route data and other information relating to available flights and other travel, or travel-related options, and prices for those options, including without limitation car hire, hotels, insurance, rail travel, bus travel and parking;
1.26 “White Label Order Form” means the order form signed by the Parties prior to the provision by Skyscanner of the Services; and
1.27 “White Label Service” means Skyscanner’s proprietary software, data and content white label service, amended to include any Customisation Requirements, which enables the Customer to integrate selected Skyscanner hosted functionality on the Customer Site for the Permitted Purpose and to amend elements of the white label via the Configuration Engine.
2. USE OF THE WHITE LABEL SERVICE
2.1 Subject to implementation time, Skyscanner shall from the Effective Date provide the White Label Service to the Customer for the Permitted Purpose.
2.2 Each of the Parties acknowledges and agrees that during the Exclusivity Period Skyscanner shall be the exclusive provider of the White Label Service to the Customer and that the Customer shall not engage any third party to provide identical and/or similar services in respect of the type of Travel Data displayed via the White Label Service.
2.3 The Customer shall:
2.3.1 access and use the White Label Services for the Permitted Purpose only;
2.3.2 not amend, remove, alter, tamper with or in any way change the White Label Service, except for making changes to the look and feel of the White Label Service as permitted via the Configuration Engine;
2.3.3 not access, scan, copy, index or in any way exploit any underlying data, code, content or other material provided by Skyscanner in conjunction with the White Label Service;
2.3.4 not misrepresent the nature of the White Label Service to End Users and, in particular, shall not solicit, source or encourage traffic to the White Label Service on the basis of the White Label Service being anything other than a service permitting End-Users to search for relevant Travel Data;
2.3.5 not charge End Users (whether directly or indirectly) for the use of the White Label Service;
2.3.6 not in any way directly or indirectly: (i) damage, interfere with or disrupt the White Label Service or any other products or services offered or made available by Skyscanner; or (ii) introduce into the White Label Service, or transmit in any way, any spyware, virus, worm, Trojan horse, authorisation key, licence control utility or software lock;
2.3.7 comply with all laws and regulations when using the White Label Service and not use the White Label Service for, or in connection with, any illegal or offensive purposes;
2.3.8 not remove, alter or replace any notices of authorship, trademarks, business names, logos or other designations of origin on the White Label Service (including, without limitation, the ‘Powered by Skyscanner’ logo) or pass off or attempt to pass off the White Label Service as the product of anyone other than Skyscanner; and
2.3.9 notify Skyscanner in writing in the event of any material change to the Customer Integration.
3. REVENUE
3.1 Skyscanner shall use its existing click-through referral tracking systems to monitor the number of End Users accessing Travel Data via the White Label Service, including in particular the number of End-User Clicks, and to calculate Click-Through Revenue generated by Skyscanner.
3.2 Skyscanner shall provide the Customer with access to an online portal which will detail the number of End-User Clicks and the Customer Payment payable (subject to the terms of this Agreement) by Skyscanner to the Customer in respect of the immediately preceding month.
3.3 On a monthly basis, the Customer shall forward an invoice for the Customer Payment payable in line with the online portal referred to in clause 3.2. Subject to (i) clause 3.4; (ii) Skyscanner being satisfied (acting reasonably) that the End-User Clicks in that month were not Invalid End-User Clicks and that the total Click Through Revenue in that month is not less than the Customer Payment in that month; (iii) the Customer having complied in full with the terms of this Agreement; and (iv) the Customer having met the End- User Clicks Threshold, Skyscanner shall pay any such undisputed invoice within 30 days of receipt.
3.4 In the event that the Customer Payment in any month is less than €100, payment of such Customer Payment may be withheld until such time as the total Customer Payment due to the Customer is equal to or greater than €100. In the event of termination or expiry of this Agreement, Skyscanner shall promptly pay the Customer any outstanding Customer Payment due to the Customer which was withheld by Skyscanner pursuant to this clause 3.4.
3.5 All sums payable in accordance with this clause 3 shall be made in Euros or such other currency as may be agreed between the Parties and shall be exclusive of any applicable taxes. Each Party shall account to the relevant authorities for any taxes, insurance, contributions and other levies for which that Party is liable.
3.6 Payment of any sums by Skyscanner under this Agreement shall be without prejudice to any claims or rights which Skyscanner may have against the Customer and shall not constitute any admission or waiver by Skyscanner of any of the Customer’s obligations.
4. CONFIDENTIALITY
4.1 Each Party undertakes to keep the other Party’s Confidential Information confidential and shall not use or disclose such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement.
4.2 Each Party may disclose the other Party’s Confidential Information to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the Party’s obligations under these Terms and as may be required by law, court order or any governmental or regulatory authority.
4.3 Confidential Information shall not include any information which was in the lawful possession of the receiving party prior to its first receipt from the disclosing party; or received independently by the receiving party in good faith from a third party; or is or becomes (through no act or failure to act of the receiving party) public knowledge; or is required to be disclosed pursuant to a legal, governmental or other regulatory requirement provided that, to the extent it is legally permitted to do so, the party which is required to make such a disclosure gives the other party as much notice of this disclosure as possible.
4.4 Neither Party may issue a press release regarding these Terms without prior written consent of the other.
5. DATA PROTECTION & COOKIES
5.1 Notwithstanding any other provision of this Agreement, in exercising its rights and performing its obligations under this Agreement the Parties shall, to the extent necessary, at all times comply with all applicable data protection and privacy laws and regulations and shall not do or omit to do anything which has the effect of placing the other Party in breach of any such laws or regulations.
5.2 To the extent that the Customer wishes to use cookies or other tracking mechanisms in order to track, monitor or otherwise collect information on End Users of the White Label Service, the Customer shall do so only in accordance with: (i) the Customer’s own cookie policy, where the Customer has provided Skyscanner with a hyperlink to an up-to-date version of that policy and such hyperlink has been included by Skyscanner in the cookie notification banner shown to End Users who access the White Label Service; or (ii) in all other circumstances, the Skyscanner Cookie Policy (including without limitation, by storing persistent cookies for no longer than two (2) years since the End User’s last visit).
6. INTELLECTUAL PROPERTY RIGHTS
6.1 The Customer acknowledges and agrees that all rights, titles and interests, including without limitation all Intellectual Property Rights, associated with the White Label Service, Travel Data and the Skyscanner Site are owned by or licensed to Skyscanner, and that the Customer shall not acquire any rights, titles, or interests in or to any Intellectual Property Rights associated with the White Label Service, Travel Data or Skyscanner Site.
6.2 Skyscanner acknowledges that the Customer owns or has licence to use all Intellectual Property Rights in the Customer Brands and in any content provided on the Customer Site (excluding the White Label Service) or provided by the Customer to Skyscanner for inclusion in the White Label Solution as part of the Customisation Requirements.
6.3 The Customer hereby grants Skyscanner and each of the Skyscanner Group Companies a non-exclusive royalty-free licence for the duration of this Agreement to use and copy the Customer Brands in connection with providing the Customisation Requirements and advertising and publicising the Skyscanner Site and White Label Service and as otherwise may be required by Skyscanner in order to comply with these Terms.
7. WARRANTIES AND INDEMNITY
7.1 Skyscanner warrants that it has full power and authority to enter into this Agreement but makes no other warranty of any kind, whether express, implied, statutory or otherwise, including without limitation warranties of merchantability, fitness for a particular use, and non-infringement and, in particular, does not warrant that either the White Label Service or Travel Data: (i) will meet all of the Customer’s requirements; (ii) is accurate, complete or up to date; (iii) will always be available; or (iv) is secure or is free from errors faults or defects.
7.2 The Customer warrants and undertakes to Skyscanner and to the Skyscanner Group Companies that (i) it has full power and authority to enter into this Agreement; (ii) the Customer Site, and any changes made to the White Label Service pursuant to clause 2.3.2, do not and shall not contain any content or material which may reasonably be considered to be obscene, defamatory, harassing, offensive or malicious, or which infringes any third party rights or does not comply with all applicable laws or regulations; (iii) the Customer Brands do not and shall not infringe the Intellectual Property Rights of any third party; (iv) it shall at all times comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to, the Bribery Act 2010 (“Anti-Bribery Laws”) and that it shall not do, or omit to do, any act which will lead to Skyscanner being in breach of any of the Anti-Bribery Laws.
7.3 The Customer warrants that the Customer Brands and the Customer domain names and meta-tags do not and shall not at any time contain any of the Skyscanner Marks. The Customer further warrants that it shall not purchase any domain name, keyword, search term or other right, or otherwise contract with a third party, to exploit any Skyscanner Marks for the purpose of causing the Customer Site to appear as a search result or for any other reason.
7.4 The Customer hereby agrees to indemnify and keep Skyscanner and the Skyscanner Group Companies fully and effectively indemnified from and against all losses, liabilities, costs, charges, damages, expenses, actions, proceedings, claims or demands (“Loss”) it suffers arising out of any breach of the Customer’s warranties in clauses 7.2 to 7.3 or the Customer’s use of the White Label Service.
8. LIMITATIONS OF LIABILITY
8.1 The Customer acknowledges and agrees that: (i) the White Label Service is provided ‘as is’ and that as Skyscanner obtains the Travel Data from third party data providers, the availability and accuracy of Travel Data is wholly dependent upon such third party data providers, and consequently, whilst Skyscanner shall endeavour to check the accuracy of such data periodically, Skyscanner shall not be responsible for the non-availability or inaccuracy of any Travel Data; (ii) its use of the White Label Services is entirely at its own risk and that, while Skyscanner will endeavour to ensure that the content of the White Label Service and Travel Data is accurate, the Customer should not rely on such content; and (iii) owing to the nature of the Internet and the fact that the Customer’s access to the White Label Service involves functionality outside Skyscanner’s control, Skyscanner is not responsible for any technical problems that the Customer may experience with the White Label Service.
8.2 Except for damages to third parties arising out of wilful or grossly negligent breaches of confidentiality under clause 4, neither Party will be liable for any indirect, special, incidental, consequential, exemplary or punitive damages, nor for damages for lost data, lost profits or costs of procurement of substitute goods or services, however caused and under any theory of liability, including but not limited to contract or tort (including product liability, strict liability and negligence), and whether or not such Party was or should have been aware or advised of the possibility of such damage and notwithstanding the failure of essential purpose of any limited remedy stated herein.
8.3 Subject to clauses 8.4 and 8.5, Skyscanner’s annual (calendar year) aggregate liability arising out of or in relation to this Agreement shall not exceed the greater of (i) £5000; or (ii) the Customer Payment paid or payable by Skyscanner to the Customer under this Agreement in the calendar year in which the liability arose.
8.4 Nothing in this Agreement will limit either Party’s liability for: (i) death or personal injury caused by its negligence; (ii) loss caused by fraud or fraudulent misrepresentation; or (iii) any loss which by law cannot be excluded or limited.
8.5 Subject to clause 8.4, Skyscanner does not accept any liability, and shall not be liable, for: (i) any inaccuracies or omissions in the content of the White Label Service or the Travel Data; or (ii) any loss, damage, cost or expense of any kind incurred by the Customer arising in connection with its access to, use of, or inability to use, the White Label Service or any content contained therein, and the Customer hereby releases Skyscanner from all such liability.
9. TERM, TERMINATION AND SUSPENSION
9.1 The Agreement will commence on the Effective Date and continue for a period of 12 months (the “Initial Term”). On the expiry of the Initial Term the Agreement will thereafter automatically renew for further successive periods of one year unless 60 days’ prior written notice is given of the intention not to renew.
9.2 Skyscanner may in its absolute discretion terminate this Agreement (i) immediately upon written notice to the Customer in the event of a breach of clause 2.2; or (ii) upon giving 3 months’ prior written notice to the Customer.
9.3 The Customer may terminate this Agreement upon giving at least 3 months’ prior written notice to Skyscanner to expire on or after the end of the Initial Term. Any termination by the Customer of this Agreement shall be without prejudice to any rights and remedies of Skyscanner in respect of any breach by the Customer of this Agreement or these Terms prior to such termination.
9.4 Either Party may terminate this agreement immediately if: (i) the other Party commits a material breach of any of its obligations under this agreement which are not capable of remedy; or (ii) the other Party committed a material breach of any of its obligations under this agreement which is capable of remedy but which has not been remedied within a period of thirty (30) days following receipt of written notice to do so; or (iii) there is an Insolvency Event.
9.5 Notwithstanding any other provision to the contrary elsewhere in this Agreement, the Customer acknowledges and agrees that the White Label Service is provided to the Customer in its absolute discretion and that Skyscanner may (i) suspend access to the White Label Service where the Customer is in breach of any provision of this Agreement; or (ii) at any time it deems necessary, throttle, switch off or otherwise limit the Travel Data that is displayed via the White Label Service (including to reflect requirements of its third party data providers, such as where an airline partner of Skyscanner requests immediate removal of data provided by or relating to that airline).
10. CONSEQUENCES OF TERMINATION
10.1 Immediately upon termination of this Agreement: (i) all license rights granted herein shall terminate; (ii) each Party shall return to the other Party, or destroy and certify the destruction of, all Confidential Information of the other Party; and (iii) the Customer shall immediately cease using the White Label Service and delete all software, data, content and information concerning the White Label Service from the Customer’s systems and, where requested by Skyscanner, confirm in writing that it has done so.
10.2 In the event of any termination or expiration of this Agreement for any reason, clauses 1, 3, 4, 5, 6, 7, 8, 10.1, 13.1, 13.2, 13.4, 13.7 and 13.9 shall survive termination. Neither Party shall be liable to the other Party for damages of any sort resulting solely from terminating this Agreement in accordance with its terms.
11. LEGAL REMEDIES
11.1 The Customer acknowledges that the unauthorised use of the White Label Service may result in irreparable damage and injury to Skyscanner and/or the Skyscanner Group Companies and/or its affiliates or licensors for which money damages would be inadequate. Consequently, in the event of such unauthorised use, Skyscanner, the Skyscanner Group Companies and/or licensors (as applicable) shall have the right, in addition to any other legal remedies available to them, to seek an immediate injunction against the Customer prohibiting any further use of the White Label Service.
11.2 Nothing in these Terms shall be interpreted to limit the remedies available pursuant to statutory or other legal authority that Skyscanner, the Skyscanner Group Companies and/or licensors may have.
12. THIRD PARTY RIGHTS
12.1 Subject to clauses 12.2 and 12.3, this Agreement is made for the benefit of the Parties and (where applicable) their successors and permitted assigns, and is not intended to benefit or be enforceable by anyone else.
12.2 In the event of any negligence or breach of this Agreement by the Customer which results in Loss being suffered by any Skyscanner Group Company, that Loss will: (i) be deemed to have been incurred by Skyscanner; and (ii) be recoverable by Skyscanner or a Skyscanner Group Company from the Customer as if it was loss or damage of Skyscanner.
12.3 Skyscanner or any Skyscanner Group Company will be able to recover any Loss from the Customer subject to any limits on the Customer’s liability contained in this Agreement. For this purpose, any Loss suffered by Skyscanner Group Companies will not be treated as being indirect, special, incidental, consequential, exemplary or punitive because it has been suffered by a Skyscanner Group Company and not by Skyscanner directly.
13. MISCELLANEOUS
13.1 All notices required to be served under or in connection with these Terms must be in writing and delivered personally or sent by prepaid recorded post to the postal addresses set out in the White Label Order Form, and addressed to the Chief Commercial Officer and Chief Legal Officer. Any notice that is served under these Terms shall be deemed to be received upon receipt when delivered by hand during business hours, or by prepaid recorded post.
13.2 Neither Party shall be entitled to assign, sub-contract or sub-licence any of its rights or obligations under this Agreement in whole or in part, without the prior written consent of the other Party (such consent not to be unreasonably withheld) except that Skyscanner may at any time assign, novate or sub-contract any of its rights and/or obligations under this Agreement to any Skyscanner Group Company.
13.3 This Agreement shall not be amended except in writing signed by a duly authorised representative of each Party.
13.4 If any provision of this Agreement or any variation thereof is determined to be invalid and unenforceable to any extent, that provision shall be severed from the body of other provisions and these provisions shall continue to the fullest extent permitted by law.
13.5 No failure or delay by a Party to exercise, or partial exercise by a Party of any right or remedy by law shall constitute a waiver of that or any other right or remedy.
13.6 This Agreement may be executed and delivered in any number of counterparts, each of which is an original and which, together, have the same effect as if each Party had signed the same document.
13.7 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, nor authorise any Party to make or enter into any commitments for or on behalf of any other Party except as expressly provided in this Agreement.
13.8 These terms constitute the entire agreement between the Parties and supersede all previous terms and understandings between them, whether written or oral, relating to their subject matter.
13.9 This Agreement and any dispute or claim arising out of or in connection with them or their subject matter shall be governed by and construed in accordance with the law of England and Wales and the Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.
