1. DEFINITIONS
In these Terms the following definitions shall apply:
1.1 "Anti-Bribery Laws" means all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to, the Bribery Act 2010;
1.2 "Click" means an End User referral from the Skyscanner Site and/or a Skyscanner Affiliate Site (as applicable) to the Customer Site;
1.3 “Confidential Information” means all information, including the existence and content of these Terms designated as confidential or which ought reasonably to 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;
1.4 "Content" means all necessary data and information relating to You or any Travel Partner, which is provided to or accessed by, or on behalf of, Skyscanner pursuant to these Terms;
1.5 “Controller” shall have the same meaning as in the GDPR and any replacement or successor legislation;
1.6 “Customer Acquisition” means a Sale made on the Customer Site or via the Direct Booking Platform by an End User where that End User has made a Click to the Customer Site or the Direct Booking Platform within thirty (30) days prior to the Sale, and where such Click is the last-paid click (for which purposes, pay per click brand keywords shall not be considered clicks) prior to the Sale;
1.7 "Customer Brands" means the Intellectual Property Rights in any branding, trade names, or get-up owned by or licensed to You or any Travel Partner;
1.8 "Customer Site(s)" means Your operated websites at the URL(s) specified in the Partner Order Form, or any geographical variance, any Travel Partner’s website and any Customer or any Travel Partner’s applications for use on mobile devices which incorporate the same or similar functionality and/or content;
1.9 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.10 “Direct Booking Intermediary” means any third party which You instruct Skyscanner to transfer Personal Data to pursuant to the delivery of the Direct Booking Services;
1.11 “Direct Booking Platform” means the section of the Skyscanner Site via which End Users are able to book travel and/or travel-related options with the Customer, (previously known as the ‘Facilitated Booking Platform’);
1.12 “Direct Booking Services” means the provision of travel and/or travel related reservation services via the Direct Booking Platform (previously known as the ‘Facilitated Booking Services’);
1.13 "End User" means a user of the Skyscanner Site and/or a Skyscanner Affiliate Site;
1.14 “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;
1.15 “GDPR” means the EU General Data Protection Regulation 2016/679;
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 "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;
1.18 “Loss” means losses, liabilities, costs, charges, damages, expenses, actions, proceedings, claims or demands;
1.19 “Partner Order Form” means the order form signed by the Parties prior to the provision by Skyscanner of the Services whose definitions are incorporated herein;
1.20 “Personal Data” shall have the same meaning as in the GDPR and any replacement or successor legislation;
1.21 “Processor” shall have the same meaning as in the EU GDPR and any replacement or successor legislation;
1.22 "Result Set" means the data set provided to the End User by Skyscanner in response to a search request carried out on the Skyscanner Site and/or a Skyscanner Affiliate Site including, without limitation, pricing and hyperlinks;
1.23 "Sale" means a reservation based on the purchase of travel or travel-related options from You or any Travel Partner for which Skyscanner shall receive a Service Fee;
1.24 “Security Standards” means all applicable laws, regulations or standards in respect of the storage, transmission and/or processing of payment and card data, including without limitation, the PCI Data Security Standard (PCI DSS) and Payment Application Data Security Standards (PA DSS) version 3.0 as amended, updated and/or replaced from time to time;
1.25 "Service Fee" means the fee(s) to be paid by You to Skyscanner for the Services, calculated and payable in accordance with Partner Order Form and these Terms;
1.26 “Services” means, without limitation, (i) the provision of a web- based meta-search facility for End Users via the Skyscanner Site to search for available travel or travel-related options and prices including on the Customer Site or any Travel Partner’s site; (ii) presenting the Result Set to End Users; (iii) enabling End Users to select a travel or other travel-related option and to click through either to the most relevant page on the Customer Site that matches the search criteria or, where the Direct Booking Services are being provided, the Direct Booking Platform; and (iv) where applicable, the Direct Booking Services;
1.27 “Skyscanner Affiliate” means any third party authorised by Skyscanner to access or use any of the Skyscanner affiliate programs available via any Skyscanner Site;
1.28 "Skyscanner Affiliate Site" means any website which incorporates or makes use of any of the Skyscanner Affiliate programs available via any Skyscanner Site and any Skyscanner Affiliate applications for use on mobile devices which incorporate the same or similar functionality and/or content;
1.29 "Skyscanner Group Company" means any entity that directly or indirectly controls, is controlled by, or is under common control with Skyscanner;
1.30 “Skyscanner Marks” means the words “Skyscanner”, “Tianxun” or any other trade marks, trade names, logos or brand names of any Skyscanner Group Company in any language or any variations thereof;
1.31 "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;
1.32 “Skyscanner Standards” means (a) that Content shall be accurate, shall not include any prices that are not available on the Customer Site, and shall not include any information that could reasonably be regarded as misleading, incorporating unfair or unreasonable charges, or result in Skyscanner being in breach of applicable laws or regulations; and (b) that the services provided to End Users by You and any Travel Partners are of a professional standard and do not contain any information that could reasonably be regarded as misleading, or incorporating unfair or unreasonable charges or result in Skyscanner being in breach of applicable laws or regulations;
1.33 “Skyscanner Technical Requirements” means any technical requirements relating to the Content or provision of Content to Skyscanner as may be notified to You by Skyscanner in writing from time to time;
1.34 "Supported Languages" means the languages available in production through the Skyscanner Site;
1.35 “Term” means the period of time from the Effective Date until the termination of these Terms.
1.36 "Tracking Technology" means a unique uniform resource locator, tracking pixel, or other similar technology with which You and/ or Skyscanner record Click activity and Customer Acquisitions on the Skyscanner Site, Skyscanner Affiliate Site, and the Customer Site;
1.37 “Travel Partner” means any third party from which you obtain data that you provide to Skyscanner as part of the Content; and
1.38 "User Interface" means Your online management pages, accessible by Skyscanner, which detail the Customer Acquisitions and Clicks.
2. PROVISION OF SERVICES
2.1 Subject to implementation time, Skyscanner will provide the Services defined in these Terms and the Partner Order Form to You from the Effective Date, in the Supported Languages.
2.2 You shall at all times comply with Your obligations under the Terms and the Partner Order Form, the Skyscanner Standards, Security Standards and with any applicable Skyscanner Technical Requirements.
2.3 You acknowledge that by entering into these Terms, Skyscanner may refer its End Users to You and any Travel Partners for products and services.
2.4 If at any time during the Term Skyscanner is of the reasonable opinion that the services and products You or any Travel Partner provide to End Users do not meet the Skyscanner Standards and/or Security Standards, or if You or any Direct Booking Intermediary is not operating in compliance with any Data Protection Laws, Skyscanner shall be entitled to suspend the Services, in whole or in part, with immediate effect and ask You to remedy the situation. If You have not remedied the situation within fourteen (14) days then Skyscanner shall be entitled to terminate these Terms with immediate effect.
2.5 You shall provide Skyscanner with an electronic list of tracking URLs on or before the Effective Date, and thereafter You shall provide all necessary Content required to enable Skyscanner to supply the Services and shall notify Skyscanner immediately where there are any errors or omissions to Content or any other reason why performance of the Skyscanner Site may be affected by Your Content and the steps You are taking to remedy this and associated timescales.
2.6 To the extent Skyscanner is providing You with the Direct Booking Services, You shall provide and maintain (a) the necessary API feed to Skyscanner; (b) real-time access to Skyscanner of Customer Acquisitions; (c) live links to all terms, conditions and privacy policies (and other customer facing policies) as displayed on the Customer Site; (d) all necessary customer service contact details for End Users in the Supported Languages for display on the Skyscanner Site; and (e) all necessary services and assistance to allow Skyscanner to provide the Direct Booking Services and for a Customer Acquisition to take place.
3. PAYMENTS
3.1 You shall pay the Service Fees to Skyscanner in accordance with these Terms. All fees quoted and payments made hereunder shall be made in the Partner 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. No Customer Acquisitions which are cancelled by an End User shall be deducted from the Service Fees due to Skyscanner.
3.2 You shall implement the Tracking Technology as may be reasonably required from time to time by the Skyscanner Technical Standards. All Clicks and Customer Acquisitions recorded by the Tracking Technology will be final. You acknowledge and confirm that You and Your Travel Partners can accurately record and report multiple Customer Acquisitions by an End User following a single Click from the Skyscanner Site to the Customer Site(s).
3.3 Where Skyscanner has User Interface access, Skyscanner shall send You the invoice for the previous month’s Service Fees approximately five (5) days following the end of that month. Where Skyscanner does not have User Interface access You shall send to Skyscanner within 3 business days following the end of each month a report which accurately details the Clicks and Customer Acquisitions in the previous month and enables Skyscanner to issue an invoice. In the event that you do not provide Skyscanner with an accurate report within fourteen (14) days of the end of the relevant month, Skyscanner shall be entitled to appoint an independent auditor, at Your cost, to review Your records in order to determine the Service Fees payable; suspend the Services (in whole or in part) until the outstanding Service Fees have been calculated and paid; and/or terminate the Services (in whole or in part) immediately on written notice.
3.4 You shall pay invoices by electronic bank transfer within thirty (30) days of 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.
3.5 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.
3.6 At any time throughout the Term, either Party at its own expense may engage an independent auditor to review and audit the other Party’s relevant records to verify the Service Fees charged and the other Party shall, having been given reasonable notice, take reasonable steps to facilitate the review.
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 these Terms.
4.2 Each Party may disclose Confidential Information received pursuant to these Terms: (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 (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.
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 You may not issue a press release regarding these Terms or your engagement with Skyscanner without the prior written consent of Skyscanner.
5. DATA PROTECTION
5.1 The Parties acknowledge and agree that in respect of any Personal Data relating to End Users which Skyscanner collects and transfers pursuant to delivery of the Direct Booking Services, You and Skyscanner (and/or, where relevant, another Skyscanner Group Company) are each acting as independent Controllers in respect of that Personal Data. You further acknowledge and agree that, except where expressly agreed in writing with Skyscanner, any Direct Booking Intermediary is acting as a Processor of Yours (and not of Skyscanner) and that You shall at all times engage such Direct Booking Intermediary pursuant to the requirements imposed on you as a Controller under the Data Protection Laws.
5.2 Notwithstanding any other provision of these Terms, in exercising their respective rights and performing their respective obligations under these Terms the Parties shall 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.
6. INTELLECTUAL PROPERTY
6.1 As between You and Skyscanner, You acknowledge that all rights, titles and interests, including without limitation all Intellectual Property Rights, associated with the Services and Skyscanner Site are owned by or licensed to Skyscanner, and that You shall not acquire any rights, titles, or interests in or to the Intellectual Property Rights associated with the Services or created for use on or via Skyscanner Site.
6.2 Skyscanner acknowledges that You own or have a licence to use all Intellectual Property Rights (if any) in the Customer Brands, the Content and the information that is provided to End Users on the Customer Site.
6.3 You hereby grant Skyscanner a non-exclusive licence to use any Customer Brands in connection with the provision of the Services.
6.4 You hereby grant Skyscanner a non-exclusive, sub-licensable right to use the Content for display on the Skyscanner Sites and Skyscanner Affiliate Sites, to make such Content available to Skyscanner Group Companies, Skyscanner Affiliates and Skyscanner Affiliate Sites, and to combine the Content with other data to create aggregated data sets for analytical purposes.
7. WARRANTIES, INDEMNITY, AND DISCLAIMER
7.1 Skyscanner warrants that it has full power and authority to enter into these Terms. 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 or purpose, and non infringement.
7.2 You warrant and represent:
7.2.1 that You have full power and authority to enter into these Terms;
7.2.2 to Skyscanner and the Skyscanner Group Companies that the Customer Site, Customer Brands and Content do not and shall not contain any content or material which may reasonably be considered obscene, defamatory, harassing, offensive or malicious, or which infringes any third party rights (including Intellectual Property Rights) or otherwise does not comply with all applicable laws or regulations;
7.2.3 that the Content will not include any different availability to that offered by You directly to consumers via any of the Customer Sites or indirectly via third-party online marketing channels; that You shall not cap or limit the amount of total daily requests or concurrent requests to the real-time API; and that You shall make the entire inventory that can be purchased in any of the Customer Sites available to Skyscanner both at the inventory feed level and the real time API level;
7.2.4 that You shall not prohibit or restrict, or attempt to prohibit or restrict, the supply to Skyscanner of any non-confidential travel data from any third party which has obtained such data from You or any Travel Partner under licence;
7.2.5 that the Customer Brands and Your domain names and meta-tags do not and shall not at any time contain the Skyscanner Marks. You further warrant that you 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; and
7.2.6 that You shall at all times comply with the Anti-Bribery Laws and that You 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 To the extent Skyscanner provides the Direct Booking Services to You, You further warrant and represent that:
7.3.1 You and any Direct Booking Intermediary or other third party which stores, transmits or processes payments on your or a Direct Booking Intermediary’s behalf are, and shall remain at all times, fully compliant with all applicable Security Standards, including without limitation, maintenance of the relevant and valid Attestation of Compliance Certificate(s) and secure storage of payment card data at all times;
7.3.2 You shall, on request, provide Skyscanner with copies of any certificates, reports and/or audits, including without limitation, any Attestation of Compliance Certificate(s), illustrating compliance with the Security Standards. If such certificates, reports and/or audits show any non-compliance, You shall remedy such non-compliance of the Security Standards forthwith at Your own expense;
7.3.3 You shall notify Skyscanner immediately if You or any Direct Booking Intermediary or any other third party which stores, transmits or processes payments on your or a Direct Booking Intermediary’s behalf is, or is reasonably likely to be, in breach of any of the Security Standards;
7.3.4 any Personal Data relating to End Users that is provided to You or any Direct Booking Intermediary by Skyscanner or any Skyscanner Group Company pursuant to the Direct Booking Services shall be used only for the purposes of processing bookings (including reasonable fraud detection and security checks) or otherwise in accordance with Your terms of service or privacy policy where the relevant End Users have consented to these via the Direct Booking Platform prior to completing the relevant booking. Skyscanner shall work with you in good faith in order to implement any such necessary consents on the Direct Booking Platform; and
7.3.5 the transfer of Personal Data from Skyscanner or any Skyscanner Group Company to a Direct Booking Intermediary will at all times be in compliance with Data Protection Laws.
7.4 You hereby agree to indemnify Skyscanner from and against all Loss it suffers as a result of (i) Your and/or any Direct Booking Intermediary’s non-compliance with the Skyscanner Standards; (ii) any breach of Your warranties in clauses 7.2 and 7.3; and/or (iii) any actions, proceedings, claims or demands from any third party relating to a Sale, attempted Sale or the travel services provided pursuant to a Sale (except to the extent that such Loss was caused by a negligent act or omission of Skyscanner).
8. LIMITATION OF LIABILITY
8.1 Subject to clause 8.3, neither Party will be liable for any indirect, special, incidental, consequential, exemplary or punitive damages, including but not limited to 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 strict liability and negligence), and whether or not such 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.
8.2 Subject to clause 8.3, each Party’s annual aggregate liability arising out of or in relation to these Terms shall not exceed the greater of £5000 and the Service Fees received by Skyscanner under these Terms in the calendar year in which the liability arose.
8.3 Nothing in these Terms will limit either party’s liability for death or personal injury caused by: its negligence; loss caused by fraud or fraudulent misrepresentation; any other liability which cannot be excluded or limited by law; a violation of the other Party’s Intellectual Property Rights; breaches of its confidentiality obligations under clause 4; breaches of its data protection obligations set out in clause 5; or liability under the indemnity set out in clauses 7.2 and 7.4.
8.4 The parties agree that this clause 8 represents a reasonable allocation of risk.
9. TERM AND TERMINATION
9.1 These Terms shall commence on the Effective Date and continue until terminated in accordance with clauses 2.4, 3.3 or this clause 9.
9.2 Skyscanner may, without cause, suspend performance and/or terminate the Services, in whole or in part, by providing at least 30 calendar days’ written notice to You. You may, without cause, suspend performance and/or terminate the Services, in whole or in part, by providing at least 30 calendar days’ written notice to Skyscanner.
9.3 Either Party may terminate these Terms immediately upon giving notice in writing if the other Party is in material breach of any term or condition of these Terms or if there is an Insolvency Event.
9.4 Upon the termination of these Terms for any reason all license rights granted herein shall terminate; each Party shall upon written request by the other Party return or destroy and certify the destruction of all Confidential Information of the other Party; and You shall immediately pay to Skyscanner all outstanding Service Fees and shall continue to pay any Service Fees which may arise subsequent to termination of these Terms in accordance with clause 3, or as otherwise agreed between Parties.
9.5 In the event of any termination or expiration of these Terms for any reason, clauses 1, 3, 4, 5, 6, 7, 8, 9.4, 10, and 11 shall survive termination.
10. THIRD PARTY RIGHTS
10.1 Subject to clauses 10.2 and 10.3, these Terms are made for the benefit of the Parties and (where applicable) their successors and permitted assigns, and is not intended to be enforceable by anyone else.
10.2 In the event of any negligence or breach of these Terms by You which results in any Loss being suffered by any Skyscanner Group Company, that Loss will be deemed to have been incurred by Skyscanner and be recoverable by Skyscanner or a Skyscanner Group Company from You as if it was loss or damage of Skyscanner. Where the Controller of the Personal Data referred to in clause 5 of these Terms is a Skyscanner Group Company, clauses 5, 7.3 and 7.4 shall be directly enforceable against You by that Skyscanner Group Company.
10.3 Skyscanner or any Skyscanner Group Company will be able to recover any Loss from You subject to any limits on Your liability contained in these Terms. 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.
11. MISCELLANEOUS
11.1 Neither Party shall be entitled to assign or sub-contract any of its rights or obligations under these Terms 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 these Terms to any Skyscanner Group Company.
11.2 These Terms shall not be amended except in writing signed by a duly authorised representative of each Party.
11.3 If any provision of these Terms 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.
11.4 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. These Terms constitute the entire agreement between the Parties and supersedes all previous Terms and understandings between them, whether written or oral, relating to their subject matter.
11.5 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 Partner Order Form, and addressed to the Chief Commercial Officer and General Counsel. 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.
11.6 These Terms 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 Singapore.
11.7 The Parties irrevocably agree that the courts of Singapore shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or their subject matter, including non-contractual disputes.
11.8 These Terms are drafted in the English language. If these Terms are translated into any other language, the English language shall prevail.
11.9 These Terms 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.
