1. DEFINITIONS
1.1 The following definitions shall apply to these Terms and Conditions:
Access Key: means the username and password combination issued by Skyscanner to a user for access to the Download Site;
Confidential Information: means all information, including the existence and content of the Agreement, designated as confidential or which ought reasonably be considered confidential, which may include, without limitation, information relating to a Party’s business, products, developments, trade secrets, know-how or other matters connected with the Services;
Data: means Skyscanner’s proprietary data or proprietary data visualisation made available as part of the Services including, without limitation, relating to user searches, exits, pricing and other aggregated data;
Data Aggregation Services: means Skyscanner’s aggregated statistical travel information services including, without limitation, its ‘Travel Rankings’ and ‘Travel Insight’ services;
Download Site: means the website or partner portal located at the URL notified to You by Skyscanner;
Initial Term: means a certain period of time starting from the Effective Date, as specified in the Order Form;
Intellectual Property Rights: means any registered or unregistered intellectual property rights, including all applications (or rights to apply) for, and renewals or extensions of such rights, which subsist or will subsist now or in the future in any part of the world. This includes, without limitation, patents, copyright and related rights, moral rights, trade marks and service marks, trade names and domain names and database rights;
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) a Party 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 a Party or a third party, towards the winding up of a Party or the appointment of an administrator; or (iv) any event occurs, or proceeding is taken, with respect to a Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned before;
Mandatory Policies: means Skyscanner’s Anti-Bribery Code of Conduct available at http://www.skyscanner.net/media/anti-bribery-code-skyscanner and its Modern Slavery Policy available at https://www.skyscanner.net/legal-notices/modern-slavery/, which are incorporated herein as updated from time to time;
Order Form: means the travel insight order form signed by the Parties prior to the provision of the Services and Data and into which these Terms and Conditions are incorporated by default;
Partner Billing Form: means the billing information form attached to the Order Form;
Partner Content: means any data relating to flights, hotels, car-hire or other travel options and prices which are, or have at any time been, made available to Skyscanner by You;
Permitted Purpose: means the purpose of internal business analysis activities and any other purpose documented on the applicable Order Form;
Renewal Term: has the meaning given to it in clause 9;
Service Fees: means the fees to be paid by You to Skyscanner for receipt of the Services and Data, calculated and paid in accordance with the provisions set out in the Order Form and these Terms and Conditions;
Services: means the Travel Insight Services and the travel Insight Vision Services as applicable;
Skyscanner Group Company: means any entity that directly or indirectly controls, is controlled by, or is under common control with Skyscanner;
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 including, without limitation, Tianxun.cn) and any Skyscanner applications for use on mobile devices which incorporate the same or similar functionality and/or content, via which any aspect of the Services may be provided;
Term: shall have the meaning given in clause 9.1;
Travel Insight Services: means the provision of the Data to You by Skyscanner in accordance with the Agreement;
Travel Insight Vision Services: means the provision of the travel insight vision services provided by Skyscanner to You as specified in the Order Form or otherwise agreed in writing (for the purpose of this definition including by email) between the Parties from time to time.
2. SERVICES
2.1. To the extent that Skyscanner is providing You with Travel Insight Services, Skyscanner shall: (i) provide You with an Access Key which will allow You to access the Download Site; and/or (ii) on the Effective Date and on a weekly basis (or such other time period as may be agreed between Parties in writing) during the Term thereafter either send to You by email, or make available to You via the Download Site, the Data relating to the immediately preceding period for use by You for the Permitted Purpose in accordance with the Agreement.
2.2. To the extent that Skyscanner is providing You with Travel Insight Vision Services, Skyscanner shall: (i) provide each of Your designated users with an individualised Access Key for access on the Download Site to the modules selected in the Order Form; (ii) on the Effective Date and on a daily basis (or such other time period as may be agreed between Parties in writing) during the term of the Agreement make available to You via the Download Site, the Data for use by You for the Permitted Purpose in accordance with the Agreement.
3. RESTRICTIONS AND UNAUTHORISED ACTIVITIES
3.1 You shall:
3.1.1 access and use the Download Site and Data only: (i) in connection with the Permitted Purpose; (ii) with the Access Key which You shall keep confidential and secure at all times; and (iii) where individualised Access Keys have been issued do so only with Your own designated Access Key and not use another user’s Access Key;
3.1.2 not access or in any way exploit any underlying data, code, content or other material provided by Skyscanner in conjunction with the Services;
3.1.3 not without the prior written consent of Skyscanner, resell, redistribute or repackage the Services or Data or transfer or make available the Services or Data in whole or in part in any format to any third parties;
3.1.4 treat the Data as confidential and apply the same security measures and degree of care to the Data as You apply to Your own Confidential Information, which You warrant as providing adequate protection from unauthorised disclosure, copying or use;
3.1.5 not in any way directly or indirectly: (i) damage, interfere with or disrupt the Services, the Data or any other products or services offered or made available by Skyscanner; or (ii) introduce into the Services or the Data, or transmit in any way, any spyware, virus, worm, Trojan horse, authorisation key, licence control utility or software lock;
3.1.6 comply with all laws and regulations when using the Services and Data and not use the Services or Data for illegal or illegitimate purposes;
3.1.7 procure that appropriate security measures (including, without limitation, bot-detection software) are in place at all times to ensure that Data cannot be consumed by any third party websites or scanned, copied, indexed, sorted or otherwise exploited by any third party automated computer program or application;
3.1.8 not use the Services or Data in any manner whatsoever that may prejudice or damage Skyscanner’s business; and
3.1.9 not without the prior written consent of Skyscanner: (i) remove, alter or replace any notices of authorship, trademarks, business names, logos or other designations of origin on the Services or Data or pass off or attempt to pass off the Services or Data as the product of anyone other than Skyscanner; or (ii) modify, adapt, translate, reverse engineer, disassemble or decompile the Services or Data or circumvent any technological protections embodied therein, or attempt to reconstruct, identify or discover any source code, except and only as expressly permissible by law.
4. SERVICE FEES
4.1 You shall pay the Service Fees to Skyscanner in accordance with the Agreement. All fees quoted and payments made hereunder shall be made in accordance with the Order Form and shall be exclusive of any applicable taxes, except where You are required by law to make such payment subject to the deduction of withholding tax, in which case the sum paid by You shall be increased to the extent necessary to ensure that Skyscanner receives an amount equal to Service Fees it would have received had no such deduction or withholding been required.
4.2 Unless a different period is stated in the Order Form, payment shall be made within 30 days from the date of the invoice, provided that in the event of an unsatisfactory credit check Skyscanner shall be entitled to amend the applicable payment terms immediately upon giving notice to You by email.
4.3 Skyscanner will send the necessary bank remittance details to You and notify You of any changes to this. On or before the Effective Date You shall provide Skyscanner with such information as may be required by Skyscanner to complete the Partner Billing Form.
4.4 Where You fail to pay an invoice by the due date, Skyscanner will have the right to charge interest on overdue amounts on a day to day basis from the original due date until the overdue amount is paid in full, at a rate of four per cent (4%) per annum above the Bank of England base lending rate in force, and/or suspend the Services until the overdue amount is paid in full.
5. CONFIDENTIALITY
5.1 Each Party undertakes to keep the other Party’s Confidential Information confidential and shall not use such Confidential Information except for the purpose of exercising or performing its rights and obligations under these Terms and Conditions.
5.2 Each Party may disclose Confidential Information received pursuant to the Agreement and Conditions: (i) to employees, officers, representatives or advisers of that Party or any entity it directly or indirectly controls, is controlled by, or is under common control with, and who need to know such information for the purposes of exercising that Party’s rights under these Terms and Conditions; and (ii) as may be required by law, court order or any governmental or regulatory authority 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.
5.3 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 by 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.
5.4 You may not issue a press release regarding the Agreement or Your engagement with Skyscanner without the prior written consent of Skyscanner.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 You acknowledge and agree that all rights, titles and interests, including without limitation all Intellectual Property Rights subsisting in the Services, Download Site and the Data are owned by or licensed to Skyscanner, and that You shall not acquire any rights, titles, or interests in or to any Intellectual Property Rights subsisting in the Services, Download Site or Data.
6.2 Subject to clause 6.3, the Parties agree that all Intellectual Property Rights created or developed in the course of Skyscanner performing, or You using, the Services shall be the property of Skyscanner, and You hereby assign all such Intellectual Property Rights to Skyscanner immediately following their creation. You shall do all such things and assign and/or execute all documents or other instruments necessary in the reasonable opinion of Skyscanner to fully vest in and enable Skyscanner to obtain, defend and enforce the rights assigned to it under this clause 6.2.
6.3 Without prejudice to clause 6.1, Skyscanner acknowledges and agrees that all rights, titles and interests, including without limitation all Intellectual Property Rights, subsisting in any reports, analysis, data or information lawfully generated by You from the Data shall be owned by You.
6.4 You hereby grant Skyscanner and each of the Skyscanner Group Companies a non-exclusive, non-revocable, royalty-free licence: (i) to use and copy the Intellectual Property Rights owned by or licensed to You in respect of its brand in connection with advertising and publicising the Skyscanner Site and the content provided thereon; and (ii) to use Partner Content in the Data Aggregation Services.
7. WARRANTIES AND INDEMNITY
7.1 Skyscanner warrants that it has full power and authority to enter into the Agreement. Skyscanner does not warrant that the Services will meet all of Your requirements or that performance of the Services will be uninterrupted or error-free. Skyscanner makes no other warranty of any kind, whether express, implied, statutory or otherwise, including without limitation warranties of merchantability, fitness for a particular use, non-infringement, accuracy or completeness or that the Data is free from errors, faults or defects.
7.2 You warrant that You have full power and authority to enter into the Agreement and warrant that You shall at all times comply with all Mandatory Policies and that You shall not do, or omit to do, any act which will lead Skyscanner to be in breach of them.
7.3 You hereby agree to indemnify and keep Skyscanner and the Skyscanner Group Companies indemnified from and against all actions, claims, proceedings, costs, damages and expenses (including, without limitation, legal fees) it suffers arising out of Your or Your Affiliate’s unlawful or unauthorised use of the Services or Data or out of any breach by You of any of the provisions of these Terms and Conditions.
8. LIMITATIONS OF LIABILITY
8.1 Nothing in these Terms and Conditions 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.
8.2 You acknowledge and agree that Your use of the Services and Data is entirely at Your own risk and that owing to the nature of the internet and the fact that Your access to the Services involves functionality outside Skyscanner’s control, Skyscanner is not responsible for any technical problems that You may experience with the Services or Data.
8.3 The following types of loss are wholly excluded, however caused and under any theory of liability, including but not limited to contract or tort (including strict liability and negligence), and whether or not a Party was or should have been aware of the possibility of such damage and notwithstanding the failure of essential purpose of any limited remedy stated herein: (i) loss of profits; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of use or corruption of software, data or information; (vi) loss of or damage to goodwill; and (vii) indirect or consequential loss.
8.4 Skyscanner’s aggregate liability arising out of or in relation to the Agreement shall not exceed the greater of: (i) £5000; or (ii) the Service Fees paid or payable by You to Skyscanner under the Agreement in the 12 months period from which the liability first arose.
8.5 Skyscanner will not be liable for: (i) inaccuracies or omissions (other than for fraudulent misrepresentation) in the content of the Services or the Data; or (ii) any loss, damage, cost or expense of any kind incurred by You arising in connection with Your access to, use of, or inability to use, the Services, the Data or any content contained in them and You hereby releases Skyscanner from all such liability.
8.6 The Parties agree that this clause 8 represents a reasonable allocation of risk.
9. TERM AND TERMINATION
9.1 The Agreement shall commence on the Effective Date and (unless otherwise terminated in accordance with its terms) shall continue for the Initial Term and, thereafter shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) You notify us, in writing, at least 30 days before the end of the Initial Term or any Renewal Period, of Your intention to terminate the Agreement, in which case the Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
(b) the Agreement is otherwise terminated in accordance with its provisions,
and the Initial Term together with any subsequent Renewal Periods shall constitute the “Term”.
9.2 Skyscanner may terminate the Agreement at any time upon giving 30 days’ prior written notice to You.
9.3 Either Party may terminate the Agreement immediately if the other Party: (i) commits a material breach of any of its obligations under these Terms and Conditions which (if capable of remedy) is not remedied within 30 days of written notification to do so; or (ii) there is an Insolvency Event.
9.4 Upon termination of the Agreement: (i) all license rights granted herein by Skyscanner shall terminate, except that You shall be entitled to continue to use for the Permitted Purpose and in accordance with the Terms and Conditions any Data in Your possession as at the point of termination; (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) You shall immediately delete all software, data, content and information concerning the Services and Data from Your systems (except for any Data in Your possession as at the point of termination and any reports, analysis, data or information generated by You from the Data as permitted by these Terms and Conditions) and, where requested by Skyscanner, confirm in writing that You have done so; and (iv) You shall immediately pay Skyscanner in full any outstanding Service Fees.
9.5 In the event of any termination or expiration of these Terms and Conditions for any reason, clauses 1, 4, 5, 6, 7, 8, 9.5, 11 and 12 shall survive termination.
10. LEGAL REMEDIES
10.1 You acknowledge that the unauthorised use of the Services 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 You prohibiting any further use of the Services.
10.2 Nothing in the Agreement 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.
11. THIRD PARTY RIGHTS
11.1 Subject to clause 11.2, the 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.
11.2 In the event of any negligence or breach of these Terms and Conditions by You which results in any losses, liabilities, costs (including without limitation reasonable legal costs), charges, damages, expenses, actions, proceedings, claims or demands (“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 You as if it was a Loss of Skyscanner. 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.
12. MISCELLANEOUS
12.1 Neither Party is entitled to assign, sub-contract or sub-licence any of its rights or obligations under the 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 the Agreement to any Skyscanner Group Company.
12.2 If any provision of the 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.
12.3 No failure or delay 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.
12.4 Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other Party at its address set out in the Order Form, or such other address as may have been notified by that Party for such purposes. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
12.5 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the law of England and Wales.
12.6 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 the Agreement or their subject matter, including non-contractual disputes.
12.7 These Terms and Conditions are drafted in the English language. If these Terms and Conditions are translated into any other language, the English language shall prevail.
12.8 The Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
July 2020/24601
