1. DEFINITIONS
In this Agreement the following definitions shall apply:
1.1“Agreement” means the Data Services Order Form together with these terms;
1.2 “API Key” means the unique access key(s) provided to the Customer upon registering for the Data Services via the Skyscanner Site;
1.3 “API Services” means the Data Services Provider’s proprietary software, data and content API service as updated from time to time which provides the Customer with direct access to the Travel Data;
1.4 “Basic Travel Data” means a subset of the Travel Data including only thumbnails, title, address, category, tribe score, rating, number of reviews;
1.5 “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 Data 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 having regard to the context;
1.6 “Customer Brands” means the Intellectual Property Rights in any branding, trade names, trade marks or get-up owned by or licensed to or by the Customer including, without limitation, as set out in the Data Services Order Form;
1.7 “Customer Integration” has the meaning given to it in clause 1.22;
1.8 “Customer Payment” shall have the meaning ascribed to it in the Data Services Order Form;
1.9 “Customer Site” means the Customer operated website(s) at the URL specified in the Data Services Order Form, or any geographical variance of that URL, and any Customer applications for use on mobile devices which incorporate the same or similar functionality and/or content operated by the Customer, or any other website agreed between the parties in writing (including by email) from time to time;
1.10 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.11 “Data Services” means the API Services provided by the Data Services Provider to the Customer as set out in the Data Services Order Form or otherwise agreed in writing (for the purposes of this definition including by email) between the Parties from time to time;
1.12 “Data Services Order Form” means the order form signed by the Parties prior to the provision by Skyscanner of any Data Services, whose definitions are incorporated herein;
1.13 “Data Services Provider” means Gogobot, Inc., a Delaware corporation and a Skyscanner Group Company doing business as Trip by Skyscanner, and/ or any other Skyscanner Group Company as may be appointed to deliver the Data Services from time to time;
1.14 “Effective Date” shall mean the date specified on the Data Services Order Form;
1.15 “End-User” means any human end-user of the Customer Site;
1.16 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each EU Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.17 “Exclusivity Period” means the period commencing on the Effective Date and ending on the termination or expiration of the Agreement;
1.18 “GDPR” means the EU General Data Protection Regulation 2016/679
1.19 “Implementation Period” means the period commencing on the Effective Date and ending on the date on which the Customer Integration is made available to the public, during which period the Skyscanner Services shall be delivered only to the extent reasonably necessary for the Customer to implement the applicable Data Services on the Customer Site;
1.20 “Initial Term” has the meaning given to it in clause 9.1;
1.21 “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 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 herein;
1.22 “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;
1.23 “Loss” means any losses, liabilities, costs (including without limitation reasonable legal costs), charges, damages, expenses, actions, proceedings, claims and demands;
1.24 “Permitted Purpose” means the purpose of the Customer integrating the Travel Data into, and displaying Travel Data to End-Users at no charge to the End-User on the Customer Site (“Customer Integration”) in accordance with this Agreement;
1.25 “Personal Data” shall have the same meaning as in the GDPR and any replacement or successor legislation;
1.26 “Skyscanner Group Company” means Skyscanner and any entity that directly or indirectly controlled by Skyscanner;
1.27 “Skyscanner Marks” means the words “Skyscanner”, “Trip by Skyscanner” or any other registered or unregistered trade marks, trade names or brand names of any Skyscanner Group Company in any language or any variations thereof;
1.28 “Skyscanner Site(s)” means the website located at the URL www.skyscanner.net, www.trip.skyscanner.net (or any other URL which replaces this URL or is used in addition to target specific geographic markets) and any Skyscanner or Trip by Skyscanner owned applications for use on mobile devices which incorporate the same or similar functionality and/or content;
1.29 “Skyscanner Technical Requirements” means any technical or design requirements relating to the Customer Integration or use of the Data Services, as may be notified to the Customer by Skyscanner or the Data Services Provider from time to time; and
1.30 “Term” means the period of time from the Effective Date until the termination of these Terms.
1.31 “Travel Data” means the data made available by the Data Services Provider and described in the schedule to the Data Services Order Form including, without limitation, all text, data, images, points of interest by location, point of interest descriptions, user ratings and reviews snippets, photos and other descriptive information, material and other content, and any updates.
2. USE OF THE DATA SERVICES
2.1 Subject to the Implementation Period and Skyscanner approving the proposed Customer Integration, Skyscanner shall from the Effective Date provide the Data Services 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 Data Services and all Travel Data to the Customer and that the Customer shall not engage any third party to provide identical and/or similar services, provided that the Customer shall be entitled at all times throughout the Term of this Agreement to obtain Travel Data for display on the Customer Site from any third parties with which it had an existing relationship in place as at the Effective Date.
2.3 The Customer shall, during the Term of this Agreement:
(i) access and use the Data Services and Travel Data for the Permitted Purpose only and in accordance with any applicable Skyscanner Technical Requirements;
(ii) where API Services are provided by the Data Services Provider to the Customer, access and use the API Services and Travel Data only in connection with its API Key and shall keep the API Key confidential at all times;
(iii) ensure that presentation of the Travel Data is in accordance with the requirements set out in the Data Services Order Form and/or any other requirements provided to the Customer by Skyscanner from time to time;
(iv) not access, scan, copy, index or in any way exploit any underlying data, code, content or other material provided by Skyscanner or the Data Services Provider in conjunction with the Data Services;
(v) not modify, adapt, translate, reverse engineer, disassemble or decompile the Data Services 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 or otherwise agreed in writing by Skyscanner;
(vi) not cache for a period exceeding 24 hours, resell or repackage the API Services or Travel Data, and not charge End-Users (whether directly or indirectly) for access to the Travel Data.
(vii) ensure that any Travel Data displayed on the Customer Site is accompanied at all times by the “Powered by Skyscanner” hyperlink mark linking to the Skyscanner Site in accordance with Skyscanner instructions and at all times adhere to any Skyscanner brand guidelines as supplied to the Customer from time to time;
(viii) when embedding the Travel Data on the Customer Sites include a “Read More” link to the relevant listing webpage on Skyscanner in a web view;
(ix) not allow any Travel Data consisting of editorial description or review text to be indexed by search engines and ensure that those pages on the Customer Site(s) include a no-index flag;
(x) not use the Travel Data in connection with or to promote any products, services or materials that constitute, promote or are used for the purpose of dealing in: spyware, adware, or other malicious programs or code; counterfeit goods; unsolicited mass distribution of email; multi-level marketing proposals, hate materials, hacking/ surveillance/ interception/ descrambling equipment, libellous, defamatory, obscene, pornographic, abusive or otherwise offensive content, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, gambling, or weapons and accessories;
(xi) not in any way directly or indirectly damage, interfere with or disrupt the Data Services, the Travel Data or any other products or services offered or made available by Skyscanner or the Data Services Provider, or introduce into the Data Services or the Travel Data, or transmit in any way, any spyware, virus, worm, Trojan horse, authorisation key, licence control utility or software lock;
(xii) comply with all laws and regulations when using the Data Services and Travel Data and not use the Data Services or Travel Data for illegal or illegitimate purposes;
(xiii) procure that all reasonable security measures (including, without limitation, bot-detection software) are in place at all times to ensure that Travel 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;
(xiv) not use the Data Services or Travel Data in any manner whatsoever that may prejudice or damage Skyscanner’s business;
(xv) notify Skyscanner in writing in the event of any material change to the Customer Integration;
(xvi) at Customer’s sole cost and expense, update and refresh all Travel Data accessed via the API services at least every 24 hours. 0
2.4 Where the Customer is using only Basic Travel Data in the Customer Site:
- the Customer’s page may be indexed by search engines;
- all links in the Customer’s results (title, read reviews, etc) must be links back to the relevant webpage on Skyscanner and exclude the no-follow tag; and
- the Customer’s page must include a “Read more” link to the relevant listing webpage on Skyscanner which excludes the no follow tag.
3. PAYMENT
3.1 The Customer will pay the Customer Payment specified in the Data Services Order Form. Unless otherwise specified in the Data Services Order Form, licenses must be purchased on an annual basis. The Customer will pay the annual fee in monthly instalments unless otherwise specified in the Data Services Order Form. The monthly instalment will be due in advance of the month to which such instalment applies by the end of each prior month. Skyscanner may use a third-party account management tool to facilitate the purchase and payment for licenses and renewals of licenses, and the Customer agrees to use any such tool that Skyscanner or the Data Services Provider requests in connection with this Agreement.
3.2 Nothing in this Agreement obligates either party to order or accept an order for licenses or renewals beyond the initial annual license purchase set out in the Data Services Order Form.
3.3 If the Customer upgrades Plans (as set out in the Data Services Order Form) mid-month, it will pay the applicable pro-rated fee difference to cover the remainder of the month. If the Customer downgrades Plans (as set out in the Data Services Order Form), Skyscanner will issue a credit representing the applicable pro-rated fee difference for the remainder of the month.
3.4 All sums payable in accordance with this clause shall be made in GBP 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.
3.5 The Customer shall pay invoices by electronic bank transfer within thirty (30) days of the date of the invoice. The Customer acknowledges and agrees that Skyscanner is entitled to carry out credit checks on the Customer at any time prior to and/ or during the Term of this Agreement. In the event of an unsatisfactory credit check Skyscanner shall be entitled to amend the applicable payment terms immediately upon giving notice to the Customer by email to the contact email included in the Data Services Order Form.
3.6 Where Customer fails 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.
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 the Agreement and 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.
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.
4.4 Neither Party may issue a press release regarding the Agreement without the prior written consent of the other Party.
5. DATA PROTECTION
5.1 The Data Services Provider provides the Data Services and makes the Travel Data available in accordance with the Data Services Provider’s privacy policy (https://www.trip.skyscanner.com/privacy). The Data Services Provider has authorized Skyscanner to license the Travel Data under this Agreement.
5.2 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 the Data Protection Laws 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.
5.3 The Customer acknowledges that the Travel Data may include Personal Data collected by the Data Services Provider in accordance with the Data Service Provider’s privacy policy (https://www.trip.skyscanner.com/privacy). The Customer and the Data Services Provider (and/or, where relevant, another Skyscanner Group Company) are each acting as independent Controllers in respect of that Personal Data. In relation to the Personal Data shared by the Data Service Provider and/or Skyscanner when providing the Data Services, the Customer shall:
- process the Personal Data only for the Permitted Purpose;
- not disclose or allow access to Personal Data to anyone other than End-User(s) of the Customer Site, the employees of the Customer and any third parties engaged to perform obligations in connection with this Agreement;
- ensure that any third parties engaged to perform obligations in connection with this Agreement are subject to written contractual obligations concerning the Personal Data which are no less onerous than those imposed by this Agreement;
- ensure that it has in place appropriate technical and organisational measures, reviewed and approved by Skyscanner, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data;
- agree to comply with any request from an End-User pursuant to Articles 12 – 23 of the GDPR (“Data Subject Rights”) and provide all reasonable and prompt assistance (within 5 Business Days of such a request for assistance) as necessary to enable Skyscanner to comply with a Data Subject Right request;
- where the Customer is based in the European Economic Area (“EEA”), not transfer any Personal Data received from the Data Services Provider outside the EEA unless the transferor:
- complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller) and/ or Articles 28 of the GDPR where processing is carried out by a third party on behalf of the Customer; and
- ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
5.4 To the extent that the Customer relies on the adequacy of the protection provided by the EU-U.S. Privacy Shield (the “Privacy Shield”) and is certified under Privacy Shield to receive categories of Personal Data which may be included in the Travel Data, you represent and warrant you will comply with the Privacy Shield principles. Without limiting the foregoing, if for any reason you are unable to comply with such principles or your Privacy Shield certification should end or the Privacy Shield certification is no longer considered adequate protection by the European Commission, you will immediately notify Skyscanner and take reasonable and appropriate steps to remedy any non-compliance, or cease access to the Data Services and use of any and all Travel Data.
5.5 Where the Customer is located outside of the EEA, or a jurisdiction where a European Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC is in force and covers such transfer, and there is a transfer of Personal Data by Skyscanner or the Data Services Provider to the Customer from within the EEA, then use of such Travel Data is subject to the model contractual clauses annexed to Commission Decision 2004/915/EC or such other clauses as may be approved by the European Commission from time to time (the “Clauses”), which are hereby incorporated into this Agreement. In such cases, the Data Services Provider is the ‘data exporter’ and the Customer is the ‘data importer’ as defined in the Clauses, and the Customer selects option (iii) of Clause II(h) and agrees to the data processing principles of Annex A to the Clauses. For the purposes of Annex B to the Clauses, the following shall apply: (i) ‘Data subjects’ are the users of the Data Services Provider’s applications or individuals whose personal data is included in the Travel Data; (ii) the ‘Purpose of the transfer(s)’ is the performance of this Agreement and the provision of services by the Customer to End Users; (iii) the ‘Categories of data’ are Personal Data included in the Travel Data as defined in this Agreement; (iv) the ‘Recipients’ are End Users and/or the Customer; (v) ‘Sensitive data’ is any Personal Data regarding an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, health or sex life, criminal convictions or alleged commission of an offense; and (vi) the ‘contact points for data protection enquiries’ are the representatives of Skyscanner and the Customer with responsibility for data privacy.
5.6 If the Customer is not operating in compliance with any Data Protection Laws, Skyscanner shall be entitled to suspend the Data Services, in whole or in part, with immediate effect and ask the Customer to remedy the situation. If the Customer has not remedied the situation within fourteen (14) days then Skyscanner shall be entitled to terminate these Terms with immediate effect.
6. INTELLECTUAL PROPERTY
6.1 The Customer acknowledges and agrees that all rights, titles and interests, including without limitation all Intellectual Property Rights, associated with the Data Services, Travel Data and the Skyscanner Sites 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 Data Services, Travel Data or Skyscanner Sites.
6.2 Subject to the terms and conditions of this Agreement, including payment of Customer Payment, Skyscanner hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable, worldwide license during the Term of this Agreement to use the Travel Data for the Permitted Purpose.
6.3 Subject to the terms and conditions of this Agreement, including payment of Customer Payment, Skyscanner grants to the Customer a limited non-exclusive, non-transferable licence (without the right to sub-license) to use the Skyscanner Marks as necessary in order to comply with the Customer’s obligations under clause 2.3(vii), provided that the Customer agrees that any goodwill accrued from its use of the Skyscanner Marks shall vest in Skyscanner.
6.4 Skyscanner acknowledges that the Customer owns or has a licence to use all Intellectual Property Rights in the Customer Brands and any content on the Customer Site, excluding the Travel Data.
6.5 Notwithstanding any other provision of this Agreement, the Customer hereby grants Skyscanner and each of the Skyscanner Group Companies a non-exclusive royalty-free licence for the Term of this Agreement to use and copy the Customer Brands in connection with providing the Data Services or as otherwise may be required by Skyscanner in order to comply with this Agreement.
7. WARRANTIES & INDEMNITY
7.1 Skyscanner warrants that it and the Data Services Provider have full power and authority to enter into this Agreement but make 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 Data Services 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 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 otherwise 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 and shall pay to Skyscanner on demand an amount equal to, any and all 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 Data Services and Travel Data.
7.5 The Customer warrants that it will at all times update the Travel Data at least every 24 hours, but may cache such Travel Data for up to 24 hours to improve performance.
8. LIMITATIONS OF LIABILITY
8.1 The Customer acknowledges and agrees that: (i) the Data Services are 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 Data Services is entirely at its own risk; and (iii) owing to the nature of the Internet and the fact that the Customer’s access to the Data Services Service involves functionality outside Skyscanner’s control, Skyscanner is not responsible for any technical problems that the Customer may experience with the Data Services or Travel Data.
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 to Skyscanner by 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 and without prejudice to the generality of clause 8.1, Skyscanner does not accept any liability, and shall not be liable, for: (i) any inaccuracies or omissions in the content of the Data Services 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 access or use use, the Data Services, the Travel Data or any content contained in them, and the Customer hereby irrevocably releases Skyscanner from any and all such liability.
9. TERM, TERMINATION AND SUSPENSION
9.1 The Agreement will commence on the Effective Date and continue in force until the expiry of a period of 12 months from the expiry of the Implementation Period (the “Initial Term”). Subject to Clauses 9.2 to 9.4, upon the expiry of the Initial Term, the Agreement will thereafter automatically renew for further successive periods of 12 months unless 60 days’ prior written notice is given by the Customer to Skyscanner of its intention not to renew.
9.2 Skyscanner may terminate this Agreement (i) immediately upon written notice to the Customer in the event of a breach of clause 2.3 or (ii) in its absolute discretion giving 3 months’ prior written notice to the Customer.
9.3 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.
9.4 Notwithstanding any other provision to the contrary elsewhere in this Agreement, the Customer acknowledges and agrees that the Data Services are provided to the Customer in Skyscanner’s absolute discretion and that Skyscanner may at any time it deems necessary and without notice suspend the Customer’s access to the Data Services, or throttle, switch off or otherwise limit the Travel Data that can be accessed using or is displayed via the Data Services (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 Data Service and delete all software, data, content and information concerning the Data Services and Travel Data 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 the Agreement.
11. LEGAL REMEDIES
11.1 The Customer acknowledges that the unauthorised use of the Data 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 alone 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 Data Services.
11.2 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.
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, you hereby acknowledge that the claim of the Loss can be: (i) assigned to Skyscanner; and (ii) recovered by Skyscanner or a Skyscanner Group Company from the Customer.
12.3 Skyscanner or any Skyscanner Group Company will be able to recover any Loss from the Customer pursuant to this Agreement 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 the Agreement must be in writing and delivered personally or sent by prepaid recorded post to the postal addresses set out in the Data Services Order Form, and addressed to the Chief Commercial Officer and Chief Legal Officer. Any notice that is served under the Agreement 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. The Parties agree that in executing the Agreement electronic signatures shall be as valid as an original signature.
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 This Agreement (including the Data Services Order Form) constitutes 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 it (including non-contractual claims) or its 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.
