Business Travel Services Agreement
Effective May 2019
In consideration of the mutual exchange of promises and covenants as set out in this Contract, the parties agree as follows:
The following definitions and rules of interpretation apply in this Contract.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with Clause 5, as set out in the list of applicable charges provided by the Supplier to the Customer from time to time.
Contract: this Business Travel Services Agreement between the Supplier and the Customer for the supply of Services which comprises the Order Form (as applicable), these terms and conditions and any supplementary terms that the Supplier may publish from time to time and any variations that it makes from time to time.
Commencement Date: means the date specified as such on the relevant Order Form or, if no date is specified or no Order Form is completed, the first date on which we commence the provision of the Services to you;
Customer Default: has the meaning set out in Clause 4.2.
Data Protection Legislation: all applicable legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications including, without limitation, the General Data Protection Regulation ((EU) 2016/679), any legislation amending, supplementing or replacing GDPR and / or the Data Protection Act 2018 or any successor or subordinate legislation in the UK.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, 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.
Order Form: means a document setting out the supply of the relevant Services to the Customer, which shall be in such form as the Supplier use from time to time and/or as the Supplier may in its sole discretion approve;
Personal Data: the personal data (as defined in the Data Protection Legislation) provided by or on behalf of the Customer to the Supplier under this Contract.
Personal Data: shall include the names, contact details and other identifiers (such as passport and other travel document details) of the Customer's personnel.
Services: the travel agency services to be supplied by the Supplier to the Customer as set out in any Order Form or as agreed between the parties in writing (including by email) or verbally from time to time.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2 COMMENCEMENT AND DURATION
2.1 This Contract shall come into effect on the Commencement Date and shall survive thereafter until terminated in accordance with this Contract.
2.2 This Contract applies to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3 SUPPLY OF SERVICES
3.1 The Supplier shall supply the Services to the Customer.
3.2 The Supplier reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.3 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.4 The warranties in Clauses 3.1 and 3.3 shall constitute the sole and exclusive warranties available to the Customer in relation to their subject matter and are in lieu of all other warranties, whether statutory, written or implied.
4 CUSTOMER'S OBLIGATIONS
4.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) promptly provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and
(c) comply with all applicable laws.
4.2 If the Supplier's performance of any of its obligations under this Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure to perform, or delay in performing, any of its obligations as set out in this Clause 4.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5 CHARGES AND PAYMENT
5.1 The Supplier reserves the right to increase the Charges from time to time on 20 Business Days' notice to the Customer.
5.2 The Supplier shall invoice the Customer from time to time for the Charges in respect of Services provided.
5.3 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice (unless otherwise agreed in writing by the Supplier); and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier;
and time for payment shall be of the essence of this Contract.
5.4 All amounts payable by the Customer under this Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under this Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.5 If the Customer fails to make a payment due to the Supplier under this Contract by the due date, then, without limiting the Supplier's remedies under Clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum. Interest under this Clause 5.5 will accrue each day at 4% a year above the Bank of England's base rate from time to time.
5.6 All amounts due under this Contract shall be paid by the Customer in full without any set-off, counterclaim, deduction or withholding.
6 INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
7 DATA PROTECTION AND DATA PROCESSING
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation:
(a) in the context of the provision and receipt of the Services, the Customer is the data controller and the Supplier is the data processor of the Personal Data; and
(b) when storing or otherwise processing Personal Data for its own purposes outside of the context of the Services, the Supplier is a data controller of the Personal Data;
in each case where data controller and data processor have the meanings as defined in the Data Protection Legislation.
7.3 Without prejudice to the generality of Clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this Contract.
7.4 Without prejudice to the generality of Clause 7.1, the Supplier shall, when processing any Personal Data as a data processor in connection with the performance of its obligations under this Contract:
(a) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by applicable law to otherwise process that Personal Data. Where the Supplier is relying on applicable law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the applicable law unless that applicable law prohibits the Supplier from so notifying the Customer. The Supplier shall also immediately inform the Customer if, in the Supplier's opinion, an instruction from the Customer infringes Data Protection Legislation;
(b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data;
(c) ensure that all its personnel who process Personal Data are obliged to keep the Personal Data confidential;
(d) not transfer any Personal Data outside of the European Economic Area unless the Customer or the Supplier has provided appropriate safeguards in relation to such transfer or such transfer is otherwise in accordance with Data Protection Legislation;
(e) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with the Customer's obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(g) on reasonable request, make available to the Customer copies of the information strictly required by the Customer to enable the Customer to assess the Supplier's compliance with this Clause 7. Further, on reasonable notice and during working hours (and only to the extent such audit is conducted without interruption to the Supplier's business operations), the Customer or an auditor nominated by the Customer shall be entitled to audit the Supplier's premises and Customer-related computer systems once in each 12 month period for the purpose of assessing the Supplier's compliance with this Clause 7; and
(h) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of this Contract unless required by applicable law to store the Personal Data.
7.5 The Customer consents to the Supplier appointing any third party provider of travel-related services as a third party processor of Personal Data under this Contract, where necessary in the context of the Services. The Supplier shall, on request, provide details of all such relevant third party providers to the Customer and the Customer shall be entitled to object to any new or replacement third party provider appointed by the Supplier within 10 Business Days of its appointment (where the parties cannot resolve any objections raised by the Customer, the Supplier shall be entitled to suspend the provision of any affected Services). The Supplier confirms that it has entered or (as the case may be) will enter with any third party processor into a written agreement incorporating terms which are substantially similar to those set out in this Clause 7. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third party processor appointed by it in the context of this Contract.
8 LIMITATION OF LIABILITY
8.1 Nothing in this Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) any other type of liability which cannot be excluded or limited under applicable law.
8.2 Subject to Clause 8.1, the Supplier's total liability to the Customer in any 12 month period shall not exceed the Charges paid to the Supplier by the Customer in that 12 month period. The Supplier's total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract.
8.3 Liability for the following types of loss is wholly excluded by the Supplier:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
8.4 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period (as defined in the following sentence), the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 36 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8.5 This Clause 8 shall survive termination of this Contract.
9.1 Without affecting any other right or remedy available to it, either party may terminate this Contract at any time by giving the other party 60 days' written notice.
9.2 Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under this Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under this Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in Clause 9.2(b) to Clause 9.2(d) or the Supplier reasonably believes that the Customer is about to become subject to any of them.
10 CONSEQUENCES OF TERMINATION
10.1 On termination of this Contract the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
10.2 Termination of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination.
10.3 Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination of this Contract shall remain in full force and effect.
11.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract (apart from any obligation to pay) if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Assignment and other dealings.
(a) Without prejudice to Clause 7.5, the Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Contract without the prior written consent of the Supplier.
(a) Each party undertakes that it shall not at any time during this Contract, and for a period of two years after termination of this Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 11.3(b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, affiliates, subcontractors or advisers who need to know such information in the context of this Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this Clause 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under this Contract.
11.4 Entire agreement.
(a) This Contract (including any document referred to, but not set out, in this Contract) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into this Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
11.5 Variation. Except as set out in this Contract, no variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver. A waiver of any right or remedy under this Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7 Severance. If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Contract.
(a) Any notice given to a party under or in connection with this Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address; and
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.9 Third party rights.
(a) Unless it expressly states otherwise, this Contract does not give rise to any rights under this Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
(b) The rights of the parties to rescind or vary this Contract are not subject to the consent of any other person.
11.10 Governing law. This Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
11.12 Counterparts. The parties may execute this Contract in any number of counterparts, each of which when executed and delivered will be an original but all of which when taken together will constitute one contract.