(1) Vivaster Limited, a limited liability company registered in the Republic of Ireland, company number 537671, with its registered address at Blair House, Upper O'Connell Street, Ennis, Co. Clare, Republic of Ireland (“VIVAster”);
Supplier, an individual or a company (a physical or a legal person) that desires to make its Services available for booking through the Website operated by Vivaster and in order to have such opportunity has agreed to be bound by the terms of this Agreement (“Supplier”);
(hereinafter collectively referred to as the “Parties” and individually as the “Party”)
(a) VIVAster operates the Website www.vivaster.com, where Customers may view offers from Suppliers and make bookings of Suppliers’ services. Vivaster takes the role of an intermediary between Customers and the Suppliers by listing information about Suppliers’ services on the Website and providing a platform for booking of such services;
(b) Supplier offers touristic Services under his own name and/or brand and is desirous of promoting his Services on Vivaster’s website by making them available for booking through the Website by Customers.
1.1 In addition to terms defined elsewhere in this Agreement, the following definitions apply throughout this Agreement, unless the contrary intention appears:
1.2“Agreement” – means this cooperation agreement, including its Annexes.
1.3“Commission” - means amount paid by Supplier to Vivaster in consideration of the services that Vivaster provides to the Supplier pursuant to this Agreement, usually determined as a certain percentage of the price of Supplier's Service and negotiated by the Parties for each of the Services offered by Supplier. Commission includes VAT (where applicable).
1.4“Customer” – means anyone who has booked Supplier’s Service through the Website or has learnt about Supplier’s Service through the Website or has used the Website in order to look for similar services.
1.5“Personal Information” – means information relating to a living individual or, in those countries whose corporate entities receive the same or similar protection pursuant to the applicable laws as individuals, a legal entity who/which is or can be identified either from that information or from that information in conjunction with other information that is in, or is likely to come into, the possession of Vivaster.
1.6“Service” – means sightseeing tours, leisure activities or other services offered by Supplier for booking by Customers through the Website, or any such services that Supplier desires to offer for booking.
1.7“Website” – means internet website www.vivaster.com operated by VIVAster, and/or any other platform that VIVAster shall make available for advertisement of the Services.
2.1 Vivaster provides a service to Supplier by offering Supplier to advertise Supplier’s Services on the Website and providing a platform for booking of such services by Customers in consideration of the payment of Commission by Supplier.
2.2 The Parties expressly acknowledge that Vivaster is not a contracting party to the contract between the Customer and the Supplier for the performance of the Services and bears no liability either to Supplier or to Customers in connection with Supplier’s provision of Services and Customer’s payment of the price for the Services.
3.1 THE SUPPLIER'S REGISTRATION ON THE WEBSITE CONSTITUTES A BINDING OFFER BY SUPPLIER TO ENTER INTO AND BE BOUND BY THE TERMS OF THIS AGREEMENT.
3.2 Supplier shall register on the Website by entering its contact information and information about its services on the webpage designated for registration of new Suppliers and by sending this information to Vivaster.
3.3 This Agreement shall become valid and binding on the Parties upon Vivaster’s acceptance of Supplier's offer, which shall happen within 21 calendar days after submission of the Supplier's offer.
3.4 In case Vivaster does not accept the Supplier's offer within the 21-day period, the offer shall terminate and Supplier shall no longer be bound thereby.
3.5 Acceptance of Supplier’s offer is at Vivaster’s discretion. When reviewing Supplier’s offer Vivaster applies its usual requirements to Suppliers in accordance with Article 4 of this Agreement but always reserves the right to pose additional requirements or deny Supplier’s offer without explanation of reasons.
4.1 Registration as a Supplier on the Website is open to both physical persons (e.g. private guides) and legal persons (e.g. travel agencies) offering touristic Services, subject to the following requirements:
4.1.1 Supplier’s furnishing a copy of a license for the services that he/she renders (for private tour guides);
4.1.2 Supplier’s furnishing or a copy of liability insurance (for legal persons).
4.2 Vivaster may pose additional requirements to Suppliers.
5.1 Supplier may add Service proposals through its personal space on the Website by entering all the required information and sending a request to Vivaster. Vivaster shall review the Supplier’s request for listing of its Service, reserving the right to request additional information and to deny the request without explaining the reasons.
5.2 Supplier shall include the price of the Service in his Service offer. Service prices must include all dues, taxes, fees, etc. Supplier shall not charge the Customer any taxes, fees, dues, or commissions in addition to the price displayed in the Service through the Website.
5.3 If Supplier’s Service proposal is accepted by Vivaster, Supplier’s Service will be advertised on the Website and available for booking by Customers in accordance with the procedure set out in Article 6. The Service price as displayed in the Service offer on the Website includes Vivaster’s Commission, as agreed upon by the Parties.
5.4 Vivaster reserves the right to remove the listing of any Supplier’s Service from the Website at any time at its own discretion and bears no liability towards Supplier for such removal.
5.5 Vivaster reserves the right to edit Supplier’s description of the Service on the Website at any time, including but not limited to editing its descriptive text, selecting appropriate photographs for the description, amending the text layout and formatting. Vivaster will not notify Supplier about such amendments in presentation of the Service. It is Supplier’s responsibility to monitor any such amendments on the Website. Vivaster will not reverse the amendments at Supplier’s request. However should Supplier disapprove of any changes in the way its Service is advertised on the Website, Supplier may request that its Service be delisted from the Website.
6.1 The Supplier shall make its Service proposals in either of the following forms:
6.1.1 as a “free sale” Service, in which case the Supplier shall make the Service always available for booking and no additional confirmation is needed from the Supplier when the Customer books the Service through the Website; or
6.1.2 as a “confirmation required” Service, in which case the Supplier shall have 24 hours after the Customer books through the Website to confirm Customer’s booking. Before advertising the Service on the Website the Parties may agree on a longer period for Supplier’s confirmation. This will be mentioned in the Service’s description on the Website.
6.2 When a Customer books Supplier’s Service through the Website, depending on Supplier’s or Customer’s choice of the payment procedure as per Article 7 below, the Customer will either pay the full price of the Service or the portion of the Service price constituting Vivaster’s Commission with the balance of the Service price to be collected by Supplier at the time when it renders the Service.
6.3 In case the Supplier has offered its service on “free sale” terms, after the Customer has paid the full Service price or the portion of the price constituting Vivaster’s Commission, whichever is applicable as per Article 7 below, Vivaster will send to the Customer an email, confirming its booking of the Service with the Supplier. Should Supplier choose the payment mechanism provided for in Article 7.4 below the booking confirmation will contain a pin code that the Customer will need to give to the Supplier before the Service is rendered.
6.4 In case the Supplier has offered its service on “confirmation required” terms, Vivaster will send the booking confirmation to the Customer after the Supplier confirms the booking. In either case, once the Customer has received the booking confirmation, the contract is concluded between the Customer and Supplier, to which Vivaster is not a party.
6.5 Supplier agrees that in case the Customer books a Service offered by the Supplier on “confirmation required” terms and the Supplier does not confirm the booking, the Customer will receive a full refund.
7.1 The Parties acknowledge that Vivaster is not a contracting party of the contract between the Customer and Supplier and Vivaster merely takes the role of an intermediary between the Customer and the Supplier by listing information about Supplier’s Services on the Website and providing a platform for booking of such Services. Payments for Services booked by the Customer through the Website are due to the Supplier.
7.2 In consideration of the services that Vivaster provides to the Supplier, the Supplier shall pay to Vivaster a Commission in the amount agreed by the Parties. The Parties will negotiate Vivaster’s Commission prior to listing Supplier’s Service on the Website. Vivaster has a right (but not the obligation) to request renegotiation of the Commission every six months after the Service is initially posted on the Website.
7.3 Supplier may authorize Vivaster to collect the full Service price at the time when the Customer makes a booking on the Website, in which case provisions of Article 7.4 below will apply. Alternatively, Supplier may authorize Vivaster to collect only the portion of the Service price that constitutes Vivaster’s Commission while the remaining part of the Service price will be collected directly by the Supplier. If Supplier choses this second payment option provisions of Article 7.5 below apply. Where Supplier has no preference as to the payment option, Supplier may authorize Vivaster to leave the choice of the payment option to the Customer. In that case the Customer’s choice shall determine whether the payment option of Article 7.4 or of Article 7.5 below will apply.
7.4 Should Supplier authorize Vivaster to collect the full Service price at the time when the Customer makes a booking on the Website:
7.4.1 Vivaster is free to choose the payment mechanism and the processing company it is going to use for collecting such payments at its own discretion.
7.4.2 After Vivaster receives the payment for Supplier’s Service from the Customer and before it transfers the payment to the Supplier, Vivaster withholds its Commission, as negotiated with the Supplier for the Service in question.
7.4.3 Vivaster bears the banking costs associated with the sending of payments to the Supplier. Supplier bears the costs connected with receiving such payments, including the costs of its own bank, credit card or payment processing company.
7.4.4 Supplier agrees that Vivaster is not liable for the delay in or failure to make a transfer in case the Supplier makes incorrect or incomplete entry of its bank account information on the Website. Supplier also agrees that Vivaster is not liable for the delay in making the transfer if the delay is caused by the processing company acquiring the payments from Customers.
7.4.5 Supplier agrees that Vivaster will not be liable to Supplier for failure to transfer the payment for Supplier’s Service in cases when Customer revokes a credit card payment. Vivaster shall notify the Supplier about such revocation and provide the Supplier with the information it may need to pursue a claim against the Customer.
7.4.6 Vivaster transfers to the Supplier accumulated payments for the Services rendered by the Supplier in the preceding period on the 1st and 15th day of each calendar month. If 1st or 15th day of the month is not a working day for Vivaster’s bank the payments are transferred on the following working day.
7.4.7 In order to receive the payment for any given Service Supplier must enter the pin code from the Customer’s booking confirmation (see Articles 6.3 and 6.4) in the personal space on the Website.
7.4.8 Three days after the Supplier has entered the pin code for a given service in its private space, and provided the Customer presents no complaints about the Service to Vivaster within this three-day period, the amount due to the Supplier for this Service is included in the amount for the next monthly transfer.
7.4.9 In case the Supplier has lost the Customer’s pin code or otherwise has not been able to enter the pin code in its personal space on the Website, the three-day period described in the above paragraph is increased to seven days. I.e. the Customer will have seven days to complain about the Service and in case the Customer presents no complaints within these seven days, the amount due to the Supplier for this Service is included in the amount for the next monthly transfer.
7.4.10 Within three business days after the payment is made to Supplier, Vivaster will also send Supplier a clarification with regard to the amount of payment, providing details of the amounts paid by Customers for Supplier’s Services, of the amounts of Vivaster’s Commission in each case and of the balance paid to Supplier. This clarification does not constitute an invoice. Supplier is responsible for its own accounting.
7.5 Should Supplier authorize Vivaster to collect only the part of the Service price that constitutes Vivaster’s Commission:
7.5.1 Supplier shall be responsible for collecting the remaining part of the Service price from the Customer at the time when Supplier renders the Service. Supplier shall bear all the costs associated with collecting the remaining part of the Service price from the Customer. Vivaster shall not act as Supplier’s payment collection agent with regard to this remaining part of the Service price. Supplier shall not be entitled to any payments from Vivaster for the Service in question. Vivaster shall not be a guarantor of the payment by the Customer.
7.5.2 Supplier agrees that Vivaster will not be liable to the Supplier in case of no-show or non-payment by the Customer.
8.1 Supplier may cancel the contract with the Customer only if unforeseeable or unavoidable external circumstances make it impossible, significantly impede or compromise carrying out of the Service. Supplier shall send all cancellations on its part to Vivaster by email firstname.lastname@example.org or through the Website messaging service immediately after Supplier becomes aware of its inability to render the service. Supplier should also immediately notify the Customer about the cancellation via the Website.
8.2 Parties acknowledge that in case of cancellation by the Supplier, the Customer will be fully refunded and Supplier will receive no payment for its Service.
8.3 In case of cancellation by the Supplier Vivaster assumes no additional liability towards the Customer except for its obligation to refund the Customer for the amount paid for the Service in advance. Should the Customer have any additional claims in relation to Supplier’s cancellation, Supplier shall be solely liable for such claims and agrees to indemnify Vivaster if Vivaster is found liable to the Customer in any forum, in accordance with the provision of Article 15.1 of this Agreement.
8.4 For cancellations on the part of the Customer, for each particular Service the Parties shall agree on a cancellation policy including the cancellation fees, which will be described in the details of Supplier’s offer on the Website and will be applicable to the agreement between the Supplier and the Customer. Supplier agrees to honour such cancellation policy in respect of Customers.
8.5 Customer may make a cancellation through the Website. In this case Vivaster promptly notifies the Supplier about the cancellation.
8.6 In case of cancellation by the Customer Vivaster shall retain the applicable cancellation fee, as described in the Supplier’s offer of the Service on the Website, from the amount collected by Vivaster from the Customer at the time of the booking. The rest of the amount collected, if any, shall be refunded to the Customer. Should the amount collected be insufficient to cover the applicable cancellation fee, Vivaster shall have no obligation to the Supplier to collect the remainder of the cancellation fee from the Customer. Vivaster shall withhold its Commission applicable to the Service from the cancellation fee charged. The remainder of the cancellation fee, if any, will be credited to Supplier’s account in accordance with the procedure stipulated under Article 7.4.
9.1 There is a special messaging system on the Website for communications between Supplier and Vivaster. In order to send a message to Vivaster, Supplier shall log into its private space on the website and enter its message in a special form. Supplier may also send messages to Vivaster at the following email address: email@example.com.
9.2 Messages from Vivaster to Supplier will be delivered through the Website messaging system. Supplier will receive notifications about new messages from Vivaster at the email address it provided when registering or amending its contact information on the Website. Vivaster may also contact Supplier at the email address and/or at the phone number the Supplier provided.
10.1 In the description of Supplier’s Service on the Website Vivaster will expressly state that the Service is not provided by Vivaster but by a third-party provider (the Supplier).
10.2 Vivaster will disclose Supplier’s identity to the Customer and will provide the Customer with Supplier’s contact information.
10.3 Until the Customer books the Supplier’s Service, the Supplier shall handle all communications with the Customer through the Website with Vivaster acting as intermediary between the Supplier and the Customer. Vivaster shall forward to the Supplier all questions about Supplier’s Service received by Vivaster from the Customer. Supplier shall provide answers to all such questions from the Customer. When Supplier provides an answer to the question from the Customer, Supplier authorizes Vivaster to forward such answer the Customer.
10.4 After the Customer makes a booking of Supplier’s Service the Customer will have an opportunity to contact the Supplier directly or continue doing so via the Website.
10.5 Supplier must provide the Customer with all the necessary information relating to the execution of the Service (e.g. meeting point and time, clothing, equipment etc.) and as required by applicable law well in advance
11.1 After Supplier renders its Service to the Customer, Vivaster gives Customer an opportunity to review Supplier’s Service by providing verbal comments and scores of certain aspects of the Service. Vivaster makes Customers’ reviews available to be viewed by other Customers visiting the Website without any obligation to verify. Supplier will not have an opportunity to respond to these reviews on the Website.
11.2 While Vivaster undertakes to use its best efforts to monitor and review Customer’s reviews (e.g. for abusive language), Vivaster does not guarantee that each review will be monitored. Where Supplier becomes aware of an abusive review of his Service, Supplier shall notify Vivaster. It is within Vivaster’s discretion to decide whether to remove such review from the Website.
11.3 Under no circumstances shall Vivaster be liable to Supplier for any consequences of the publication or distribution of any of the Customers’ reviews.
11.4 The Customers’ reviews are for exclusive use by Vivaster. Vivaster exclusively retains ownership of all rights to these reviews. The Supplier is not entitled to publish or otherwise use the Customers’ reviews without prior written approval of Vivaster.
11.5 The order in which the Supplier’s Service is listed on the website (the “Ranking”), is determined unilaterally by Vivaster. The Supplier shall not make any claim against Vivaster regarding the Ranking of its Services.
12.1 The Supplier hereby grants Vivaster a non-exclusive, royalty free and worldwide right and license (or sublicense as applicable) to use and make available in any method all the content (including texts, photographs, videos, trademarks) that the Supplier provides to Vivaster for purposes of describing its Service on the Website.
13.1 Each Party represents and warrants to the other Party that for the term of this Agreement:
13.1.1 it (and the persons acting on its behalf) has all the rights, power and authority to enter into and perform its obligations under this Agreement;
13.1.2 it has taken all corporate action required by it to authorise the execution and performance of this Agreement; and
13.1.3 this Agreement constitutes a valid and legally binding obligation of that Party in accordance with its terms and the laws applicable to that Party.
13.2 Supplier represents and warrants to Vivaster that for the term of this Agreement:
13.2.1 the Supplier holds and complies with all permits, licenses and other governmental authorisations and requirements necessary for conducting, carrying out and continuing its operations and business and making its Services available on the Website for reservation;
13.2.2 Supplier’s use of the Website does not violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, Tax regulations;
13.2.3 the Services that Supplier offers through the Website do not violate any laws, regulations or third party rights;
13.2.4 Service description and other content that Supplier suggests to upload on the Website do not violate third parties' intellectual property rights;
13.2.5 in case the Supplier is a company (a legal person) the Supplier holds comprehensive general liability insurance, which insures the Services that Supplier offers on the Website and covers potential regress claims from Vivaster.
13.3 Except as otherwise expressly provided in this Agreement, neither Party makes any representations or warranties, express or implied, in connection with the subject matter of this Agreement and hereby disclaims any and all implied warranties.
14.1 Supplier shall ensure that the Services he provides are in compliance with standard market terms, practices and reasonable quality standards usually applicable to such or similar kind of services.
14.2 Supplier shall ensure that information about his Services is always up to date.
14.3 Supplier shall ensure that information about his Services complies with his country of residence/place of business's legal requirements and inform Vivaster about such requirements.
14.4 Supplier shall offer Services for booking through the Website at the best available price for this Service or equivalent service by the Supplier. Supplier shall not offer this Service or equivalent service at a lower price directly or via another (third) party or via another channel or medium. If Supplier offers Services or enters into an agreement to provide Services through or to a third party (including without limitation through any other distribution channel) for a lower price than the then-current price at which the Services are offered for booking through the Website, then Supplier will promptly notify Vivaster and provide to Vivaster such lower price retroactively as of the date the lower price was first provided to such other third party. The present provision is without prejudice to the Supplier’s right to use the so-called “discount coupons” when Supplier renders the Service to customers at a discounted price when customers present such coupons issued by Supplier or organizations that the Supplier is partnered with.
14.5 Supplier shall not solicit or attempt to solicit the Customers to book its Services by means other than through the Website. In particular the Supplier shall not use Customer’s contact information received from Vivaster to offer the Customer to book its Services bypassing the Website. In case a Customer offers the Supplier to book its Service bypassing the Website, the Supplier shall direct the Customer to book the Service through the Website.
14.6 Supplier shall keep his registration on the Website until this Agreement terminates in accordance with Article 21.
14.7 Supplier shall not make an unlawful use of the Website or any other use that is not in conformity with this Agreement, including:
14.7.1 use manual or automated software, devices, scripts, robots or other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Website;
14.7.2 infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
14.7.3 damage the Website in any manner whatsoever and by any means;
14.7.4 collect, store and make unauthorized use of information about any other member of the Website without express authorization by that member or Vivaster;
14.7.5 register for more than one account or register for an account on behalf of another individual or company.
14.8 For the avoidance of doubt Article 14.7 does not limit Supplier’s right to collect and analyse publicly available information, such as price offers, through the Website.
15.1 The Supplier shall fully indemnify, compensate and hold Vivaster (or its directors, officers, employees, agents, affiliated companies and subcontractors) harmless for and against any liabilities, costs, expenses (including, without limitation, reasonable attorneys’ fees and expenses), damages, losses, obligations, legal proceedings, claims, penalties and interest paid, suffered or incurred by Vivaster (or its directors, officers, agents, affiliated companies and subcontractors) in connection with:
a) all claims made by Customers concerning inaccurate, erroneous or misleading information about Supplier’s Service on the Website;
b) all claims made by Customers concerning or related to Supplier’s rendering of Service, refund or reduction of the price paid for the Service, claims by Customers against the Supplier (including its directors, employees, agents, representatives and the premises of the Supplier) arising due to tort, fraud, wilful misconduct, negligence or breach of contract;
c) any claim from any third party based on any (alleged) infringement of the third party's intellectual property right by the Supplier;
d) all claims made by Customers concerning the receiving, processing, storage and transfer of Customers’ Personal Information by the Supplier or by any third party to which Personal Information had been transferred by the Supplier and
e) all claims by any governmental or regulatory authority in applicable jurisdictions relating to Supplier’s Service, including all such claims relating to compliance of the Service or Supplier’s activity with any applicable laws or regulations.
15.2 In case Vivaster is sued by Customer or a third party in any jurisdiction or forum in connection with the Services rendered by the Supplier, Supplier agrees to cooperate with and assist Vivaster in the defence and/or settlement of such claim, including without limitation by being joint into proceedings as a third-party defendant. The Supplier shall not make any admission, file any papers, consent to the entry of any judgment or enter into any compromise or settlement without the prior written consent of Vivaster.
15.3 Supplier agrees that until it has fulfilled its obligation to indemnify Vivaster in cases envisaged by this Agreement Vivaster has a right to withhold an amount equivalent to the indemnification amount due from any payments due from Vivaster to the Supplier under this Agreement.
15.4 For all the Services offered by Supplier through the Website it is presumed that the services are rendered by the Supplier itself and the Supplier is personally liable to Customer and to Vivaster for execution of this Service. In cases when parts of or the entire Service is rendered by third parties, Supplier remains liable before the Customer and Vivaster for execution of the Service by such third parties.
15.5 Vivaster is not liable to Supplier for any damages that the Customer may cause to the Supplier. Supplier must present such claims to the Customer and not to Vivaster.
15.6 Vivaster disclaims and excludes any and all liability in respect of the Supplier which is related to any (temporary and/or partial) breakdown, outages, downtime, interruption or unavailability of the Website, as well as liability for any damage caused by computer viruses, spyware programs and other computer programs.
15.7 Vivaster’s liability under this Agreement is excluded to the extent permissible under applicable law. Vivaster’s liability for associates is excluded.
15.8 In no event shall Vivaster be liable to Supplier for any indirect, special, punitive, incidental or consequential damages or losses, including loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim, whether such damages are (alleged as) a result of a breach of contract, tort or otherwise (even if advised of the possibility of such damages or losses).
15.9 In case of Supplier’s breach of its obligations under Articles 14.4 and 14.5 of the Agreement, Supplier shall pay Vivaster a penalty in the amount of EUR 100 for each occasion of the breach. In case of Supplier’s breach of its obligations under Article 14.7 of the Agreement, Supplier shall pay Vivaster a penalty in the amount of EUR 1000 for each occasion of the breach. These penalties are without prejudice to Vivaster’s right to claim damages exceeding the amount of such penalty.
15.10 Without prejudice to any other rights and remedies otherwise available to the other Party, each Party will be entitled to injunctive relief and specific performance.
16.1 The Parties acknowledge that in the performance of this Agreement Vivaster will need to transfer Personal Information of the Customers to the Supplier, who shall receive, process and store such Personal Information according to the following provisions.
16.2 In case the Supplier is a resident of the United State of America or has its place of business or registered offices in the United States of America or receives, processes and stores Personal Information in the United States of America, and such Personal Information is transferred to Supplier from the territory of Switzerland, the Supplier shall comply with and self-certify under the U.S.-Swiss Safe Harbor Principles and, to the extent permitted by the applicable U.S. law, shall join the U.S.-Swiss Safe Harbor Framework by way of registering on the related websites and undertaking the self-certification to be included to the U.S.-Swiss Safe Harbor List. For more information, visit http://export.gov/safeharbor/swiss/ (U.S.-Swiss Safe Harbor Framework).
16.3 In case the Supplier is not subject to a third country’s system ensuring adequate protection, as determined by the Swiss Federal Data Protection Commissioner (“FDPIC”) or the European Commission, as applicable (for a list of countries with adequate protection, please visit the relevant website of the FDPIC: http://www.edoeb.admin.ch/datenschutz/00626/00753/index.html?lang=en or of the European Commission: http://ec.europa.eu/justice/data-protection/international-transfers/adequacy/index_en.htm), the Parties agree that the provisions of the standard contractual clauses for the transfer of personal data from the Community to third countries (controller to controller transfers), contained in the Commission Decision (2004/915/EC), notified under document C(2004)5721 document), shall apply in respect of exports of Personal Information from the European Economic Area or Switzerland to such country.
16.4 In the event that the Supplier is in breach of its obligations under this Article 16, or then Vivaster may suspend the transfer of Personal Information to the Supplier until the breach is repaired or the Agreement is terminated.
17.1 Supplier may not assign or transfer this Agreement and any rights and obligations arising thereof, by operation of law or otherwise, without Vivaster’s prior written consent. Vivaster may assign or transfer this Agreement and any rights and obligations arising thereof, as well as any and all other relationships between Supplier and Vivaster created in connection with Supplier’s use of the Website, at its sole discretion and without restriction, to third parties. Subject to the foregoing, this Agreement will bind the successors and permitted assigns of the Parties.
18.1 Parties understand and agree that in the performance of this Agreement, each Party may have access to or may be exposed to, directly or indirectly, confidential information of the other Party (the “Confidential Information”). Confidential Information includes customer data, transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information that either a disclosing party designates as being private or confidential or of which a receiving party should reasonably know that it should be treated as private and confidential.
18.2 Each Party agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party and receiving party shall not use any Confidential Information for any purpose except in furtherance of this Agreement; (b) it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties and agents (the “Permitted Persons”) to maintain, the confidentiality and secrecy of the Confidential Information; (c) it shall disclose Confidential Information only to those Permitted Persons who need to know such information in furtherance of this Agreement; (d) it shall not, and shall use prudent methods to ensure that the Permitted Persons do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information; and (e) it shall return or destroy all ((hard and soft) copies of) Confidential Information upon written request of the other Party.
18.3 Notwithstanding the foregoing, (a) Confidential Information shall not include any information to the extent it (i) is or becomes part of the public domain through no act or omission on the part of the receiving party, (ii) was possessed by the receiving party prior to the date of this Agreement, (iii) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto, or (iv) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, and (b) nothing in this Agreement shall prevent, limit or restrict a Party from disclosing this Agreement (excluding any Customer data) in confidence to an affiliated (group) company.
18.4 Parties shall use commercially reasonable efforts to safeguard the confidentiality and privacy of Customer data and to protect it from unauthorized use or release. Each Party agrees to comply with all applicable data and privacy laws, rules and regulations of the jurisdiction where such Party is incorporated and where the Customer is resident.
19.1 For the entire period of this Agreement and for five years after the termination date of this Agreement Supplier shall not directly or indirectly engage in any business or venture that competes with the Website and with Vivaster’s operation of the Website, including by providing a similar platform for booking of touristic services by various suppliers or otherwise copying Vivaster’s business model. For the avoidance of doubt the present provision does not in any way limit Supplier’s right to advertise its own touristic services directly or through other platforms similar to Vivaster’s Website.
19.2 During the term of this Agreement and for a period of five years following termination of this Agreement, Supplier will not, solely or jointly with others:
19.2.1 hire, contract or take away or cause to be hired, contracted or taken away any employee or independent contractor of Vivaster;
19.2.2 solicit or encourage any employee or independent contractor of Vivaster to terminate employment with or cease providing services to Vivaster;
19.2.3 in any way interfere with the relationship between Vivaster and any of its Customers, vendors, service providers or business associates.
20.1 The Parties acknowledge that they will not hold themselves out as an agent, partner or co-venturer of the other and that this Agreement is not intended and does not create an agency, partnership, joint venture or any other type of relationship except the contract relationships established hereby, and except for what provided for under Articles 7.1 and 7.5.
21.1 Unless agreed otherwise, this Agreement shall commence upon Vivaster’s acceptance of Supplier’s offer as per article 3.3 of the Agreement for indefinite period of time. Each Party may terminate this Agreement at any time and for any reason, by written notice to the other Party with due observance of a notice period of 14 days.
21.2 Vivaster may terminate this Agreement with immediate effect and without a notice of default being required in case of Supplier’s breach of its representations, warranties or obligations under this Agreement.
21.3 In case of termination of the Agreement the Supplier shall render the Services for which the bookings have been confirmed.
21.4 Termination of this Agreement does not release any of the Parties from any obligations to the other Party they may have incurred before the termination of the Agreement or that may arise in relation to any act or omission occurring before the termination of the Agreement. For avoidance of any doubt, Parties’ obligations under Articles 15, 16, 18 and 19 of this Agreement shall survive the termination.
21.5 Any amendments to the Agreement shall be made in writing. Email correspondence satisfies the in-writing requirement if express consent of Vivaster to a given amendment is witnessed. This in-writing requirement does not limit Vivaster’s right to modify this Agreement, as provided for in Articles 21.6-21.8 below.
21.6 Vivaster may modify this Agreement at any time. Vivaster will notify the Supplier with a message through the Website and/or by email about any amendments to this Agreement. The Supplier will have 14 calendar days to reject the amendments, in which case the Agreement will terminate.
21.7 The Supplier may accept the amendments to the Agreement suggest by Vivaster by:
21.7.1 failing to reject the amendments within 14 calendar days;
21.7.2 expressing its consent in writing to be bound by the amended Agreement; or
21.7.3 requesting Vivaster to list new Services on the Website or amend the already listed Services after Vivaster suggests amendments to the Agreement.
21.8 If Supplier accepts the amendments in any of the forms stipulated above the amended terms of the Agreement come into force immediately.
22.1 This Agreement shall be governed by and construed in accordance with the substantive laws of Switzerland, without regard to its conflict-of-law provisions.
22.2 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). The place of the arbitration shall be Zurich, Switzerland. The language to be used in arbitral proceedings shall be English.
22.3 The Rules for Expedited Arbitrations shall apply where the amount in dispute does not exceed EUR 100,000. Where the amount in dispute exceeds EUR 100,000 the Arbitration Rules shall apply. The Arbitral Tribunal shall be composed of a sole arbitrator where the amount in dispute exceeds EUR 100,000 but not EUR 1,000,000. Where the amount in dispute exceeds EUR 1,000,000, the Arbitral Tribunal shall be composed of three arbitrators. The amount in dispute includes the claims made in the Request for Arbitration and any counterclaims made in the Answer to the Request for Arbitration.
23.1 This Agreement constitutes the entire agreement and understanding of the Parties with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, ((non) binding) offers, undertakings or statements regarding such subject matter.
23.2 The original English version of this Agreement may have been translated into other languages. In the event of a dispute about the contents or interpretation of this Agreement or inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall apply, prevail and be conclusive.
23.3 The language throughout this Agreement will in all cases be construed as a whole according to its fair meaning and without implying a presumption that the terms hereof will be more strictly construed against one Party as opposed to the other by reason of the rule that a document is to be construed more strictly against the Party who has prepared the same.
23.4 Except where the context requires otherwise, words denoting the singular include the plural and vice versa; words denoting any gender include all genders; words denoting persons include firms, companies, their successors and permitted assignees or transferees and vice versa. The headings contained in the Agreement are for reference only and they must not be taken into account in the construction of the Agreement.
23.5 If any one or more of the provisions contained in this Agreement, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, this shall not affect the validity or enforceability of these provisions in other circumstances, or the validity or enforceability of other provisions of this Agreement, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the remaining provisions hereof.
23.6 No failure or delay on the part of Vivaster in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy.