Execution & performance
Between 'You', (the 'Vendor') and WeddingMarkit ('Us', 'We').
The Agreement only enters into effect after approval and confirmation by WeddingMarkit LTD, should WeddingMarkit LTD choose to approve the Vendor to promote their wedding services on the WeddingMarkit Platform. Listing of the Vendor's services on the WeddingMarkit Platform is also indicative of the Agreement entering into effect.
This Agreement is subject to and governed by the General Delivery Terms ('Terms & Conditions'). The Vendor declares that it has read and hereby accepts the Terms & Conditions.
GENERAL DELIVERY TERMS
These general delivery terms (the “TERMS”) are entered into and agreed upon between the Vendor and WeddingMarkit LTD (each a “PARTY” and collectively the PARTIES”).
"VENDOR" means any wedding service provider listing their wedding services on the WeddingMarkit Platform.
“BEST PRICE GUARANTEE” means the guarantee issued by WeddingMarkit LTD (under this or any similar name) stating that WeddingMarkit LTD offers the best price for a Vendor and that no lower rate can be found online for the equivalent service provided with the same dates and the same booking conditions.
“WEDDINGMARKIT PLATFORM” means the website(s), apps, tools, platforms and other devices of WeddingMarkit on which the Service is made available.
“CUSTOMER SERVICE” means the customer service desk of WeddingMarkit which can be reached at email@example.com or such other addresses set out in the Agreement.
“COMMISSION” (for the 'Pay Per Booking' payment option) means the 7% commission of the Vendor's minimum booking cost on the date which the Customer reserved, taken by WeddingMarkit from the Vendor after 10 days of the Customer's reservation on the WeddingMarkit Platform. This is applicable for WeddingMarkit's 'Pay per Booking' pricing option, made available to vendors.
"TOTAL MINIMUM PACKAGE PRICE" means the vendor's total minimum package price (inc GST) listed on the date which the customer reserves. If your business uses an a la carte booking system (for example venues booking on a per-person basis, or florists who charge by item) the commission will be a deduction of the minimum cost required to book your services on the date the customer reserves. If you decide to offer multiple package prices over different rate periods (ie Summer, Winter Rates) the commission will be a deduction of the total minimum package price for that season, on the date which the customer reserved.
"SUBSCRIPTION" (for the 'Subscription Plan' payment option) is the fixed rate which the vendor pays WeddingMarkit LTD for use of it's services. This can be paid in either quarterly or yearly increments.
“PAYMENT” means the amount of money owed to the Vendor by the Customer, which is conducted between the Vendor and the Customer according to the Vendor's usual business practices.
"FORCE MAJEURE EVENT" means any of the following events affecting multiple Guests and multiple accommodations: act-of-God, volcanic eruptions, (natural) disaster, fire, (acts of) war, hostilities or any local or national emergency, invasion, compliance with any order or request of any national, provincial, port or other public authority, government regulation or intervention, military action, civil war or terrorism, (biological, chemical or nuclear) explosion, rebellion, riots, insurrection strikes, civil disorder (or the material or substantial threat or justified apprehension of any of the foregoing events), curtailment of transportation facilities, close down of airports or any other exceptional and catastrophic event, circumstance or emergency, making it impossible, illegal or prevents Customers from using the Vendor's services.
“CUSTOMER” means a visitor of the Platforms or a customer or guest of the Vendor.
"RESERVATION" means when a customer reserves a date with a vendor on WeddingMarkit.
"BOOKING" means when a customer confirms a booking with a vendor (i.e; pays a deposit or similar), whether through WeddingMarkit or otherwise.
"INTELLECTUAL PROPERTY RIGHT" means any patent, copyright, inventions, database rights, design right, registered design, trade mark, trade name, brand, logos, service mark, know-how, utility model, unregistered design or, where relevant, any application for any such right, know-how, trade or business name, domain name (under whatever extension, e.g. .com, .nl, .fr, .eu, etc.) or other similar right or obligation whether registered or unregistered or other industrial or intellectual property right subsisting in any territory or jurisdiction in the world.
“PLATFORMS” means the website(s), apps, tools platforms and/or devices of WeddingMarkit LTD and its affiliated companies and business partners on or through which the Service is made available.
“PARITY” Rate Parity means the same or better rates for the same service, same package, same product, same dates, same availability, same number of guests, same or better restrictions and policies such reservation changes and cancellation policy as are available on the Vendor's websites, apps or call-centres (including the customer reservation system), or directly with the Vendor, with any competitor of WeddingMarkit LTD (which includes any online or offline reservation or booking agency or intermediary) and/or with any other (online or offline) third party that is a business partner of or in any other way related with or connected to the Vendor.
“10-DAY FREE CANCELLATION” means the 10-day period between when from the Customer reserves the services of a Vendor on the WeddingMarkit LTD Platform and 10 days henceforth, where the Customer is able to cancel their reservation, should they decide to.
2. Vendor Obligations
2.1 Vendor Information
2.1.1 Information provided by the Vendor for inclusion on the Platforms shall include information relating to the Vendor (including pictures, video links, photos and descriptions), its services available for reservation, details of the rates (including all applicable taxes, levies, surcharges and fees) and availability, cancellation and no-show policies and other policies and restrictions (the " Vendor Information") and shall comply with formats and standards provided by WeddingMarkit LTD. The Vendor Information shall not contain any telephone or fax numbers or email (including skype) address or social media website/app/platform (including twitter and facebook), with direct references to the Vendor or its websites, apps, platform, tools or other devices, or to websites, apps, platform, tools or other devices of third parties. WeddingMarkit LTD reserves the right to edit or exclude any information on becoming aware that it is incorrect or incomplete or in violation of the terms and conditions of this Agreement.
2.1.2 The Vendor represents and covenants that the Vendor Information shall at all times be true, accurate and not misleading. The Vendor is at all times responsible for a correct and up-to-date statement of the Vendor Information, including additional availability of service for certain periods or any extraordinary (material adverse) events or situations (e.g. renovation or construction at or near the facility). The Vendor shall contact WeddingMarkit LTD to update the Vendor Information on a daily basis (or such frequent basis as may be required) and may -at any time- change the rate of its available dates reservable, and (ii) the number of reservable dates available. The accuracy of this information is the sole responsibility of the Vendor. The information provided by the Vendor for the Platforms shall remain the exclusive property of the Vendor. Information provided by the Vendor may be edited or modified by WeddingMarkit LTD. The edited content shall be for the exclusive use by WeddingMarkit LTD on the Platforms and shall not be used (in any way or form) by the Vendor for any other distribution or sales channel or purposes. Changes to or updates of the descriptive information of the Vendor are only allowed if prior approval has been obtained from WeddingMarkit LTD.
2.1.3 Unless WeddingMarkit LTD agrees otherwise, all changes, updates and/or amendments of the Vendor Information (including rates, availability, packages) shall be made by the Vendor either by contacting WeddingMarkit directly, or on-line through WeddingMarkit's 'Promote my Business' page on their website - or such other ways as WeddingMarkit LTD may reasonably indicate. Updates and changes in respect of pictures, photos and descriptions will be as soon as reasonably possible processed by WeddingMarkit LTD.
2.2.1 The Vendor shall give WeddingMarkit LTD rate and availability parity (“PARITY”).
Rate Parity means the same or better rates for the same service, same package, same dates, same availability, same number of guests, same or better restrictions and policies such reservation changes and cancellation policy as are available on the Vendor's websites, apps or call-centres (including the customer reservation system), or directly with the Vendor, with any competitor of WeddingMarkit LTD (which includes any online or offline reservation or booking agency or intermediary) and/or with any other (online or offline) third party that is a business partner of or in any other way related with or connected to the Vendor. If any changes to rates are made by the Vendor, whether online or offline, WeddingMarkit LTD must be notified immediately to ensure rate parity. WeddingMarkit is entitled to rate parity for such rate.
Availability Parity means that the Vendor shall provide WeddingMarkit LTD with such availability (i.e. dates available for booking on the Platform) that are at least as favourable as those provided to any competitor of WeddingMarkit LTD (which includes any online or offline reservation or booking agency or intermediary) and/or with any other (online or offline) third party that is a business partner of or in any other way related with or connected to the Vendor.
2.2.2 The restrictions and conditions for the service made available for reservation on the WeddingMarkit LTD Platform shall at all times be in accordance with Clause 2.2.1 and make sense for all parties involved (including consumers).
2.2.4 Within the spirit of this Agreement and subject at all times to the availability parity set out in Clause 2.2.1, the Vendor is encouraged to provide WeddingMarkit with fair access to services (including various policies and restrictions) and rates available during the term of the Agreement (during periods of low and high demand). Should WeddingMarkit LTD deem that you are not providing fair access to services and available dates for the Customer to reserve, WeddingMarkit LTD reserves the right to remove the Vendor from the Platform, either tomporarily or permanently, with or without notice.
By choosing to use the Subscription Plan with WeddingMarkit you agree to abide by the specific terms governing the use of this plan, namely:
3.1. USE OF CALENDAR
3.1. Keeping calendar up to date: You should keep your calendar up to date so that it reflects the true state of all reservations. If we feel a calendar is not being kept up to date we reserve the right to discontinue display of availability information on your listing and exclude your service from availability-based searches. Failure to keep the calendar up to date, regardless of the reason, is the sole responsibility of the vendor.
3.2. Our right to modify: We reserve the right to modify reservations that we know proceeded (for example, if a date reserved was cancelled, before being reconfirmed). This includes, but is not limited to, converting questions to reservations, modifying reservation dates and confirming reservations that proceeded.
The vendor may choose from two subscription-based payment options (Effective June 30, 2017).
3.2.2 Non-refundable quarterly subscription: This subscription charge is an up-front refundable charge that provides you with a listing on the site for a quarterly period, which auto-renews. No refunds or part refunds will be provided except as outlined in these terms.
3.2.3. Non-refundable 12-month subscription: The subscription charge is an up-front non-refundable charge that provides you with a listing on the site for a period of 12-months from purchase. No refunds or part refunds will be provided except as outlined in these terms.
3.2.4 Money-back guarantee: Notwithstanding, we provide a 7-day money back guarantee. If you decide that the product is not suited to your needs you have 7-days from registering your service under subscription plan to apply for a refund in full. This applies only on your first use of subscription.
3.2.5 No credit for time offline: You can take your listing offline at any time, by contacting us to do so. However, please note that no subscription credit is applied for time where your listing is offline.
3.3 CHANGING PLANS
3.3.1 Changing to another plan: You can change from Subscription Plan to some other plan at any time. If you decide to change to the Pay Per Booking Plan, you will roll over to that plan at the end of the period of your subscription. we do not credit or pro-rate subscriptions paid.
By choosing to list on the Pay per Booking plan you agree to abide by the specific terms governing the use of this plan, namely:
4.1 COMMISSION PERCENTAGE
The Commission percentage shall be 7% of the vendor's total minimum package price (inc GST) (the "TOTAL MINIMUM PACKAGE PRICE") listed on the date which the customer reserves.
4.2 USE OF CALENDAR
You must keep your calendar up to date: We rely on bookings being confirmed in order to bill the correct commission. You agree to keep your calendar up to date so that it reflects the true state of all reservations. We reserve the right to cross check with customers or otherwise investigate where we feel a calendar is not being kept up to date to avoid payment of commissions. We reserve the right to modify reservations that we know proceeded. This includes, but is not limited to, modifying reservation dates and confirming reservations that proceeded. Failure to keep the calendar up to date, regardless of the reason, is the sole responsibility of the vendor.
4.3 PLAN CHARGES
3.1. Payment of commissions: You agree to pay a commission on all confirmed reservations obtained via our website or partner websites (affiliates or other) that result in use of your services. This excludes any bookings you manually add to your calendar (external or manually added bookings) obtained from another source other than WeddingMarkit.
4.4 Commission calculation: The Commission per reservation is equal to 7% of the required minimum total package price to book your services on the calendar date which it was reserved (including GST, income tax and any other applicable local taxes or levies and such other extra's, fees and surcharges which are included in the offered rate at the time of reserving the Vendor's service by a customer on the Platforms). The required minimum cost required to reserve the Vendor's services may include but not be limited to: your minimum guest count to book your service, your minimum package rate to book your service, and any other applicable way the Vendor chooses to set a minimum rate for the customer to book their services. WeddingMarkit reserves the right to remove, whether permanently or temporarily, a Vendor from the Platform should WeddingMarkit LTD should fail to pay the Commission, or if it see any changes in minimum costs to book the Vendor's services in an attempt by the Vendor, whether deliberate or not, to undermine the Commission taken from the Vendor by WeddingMarkit LTD. The Vendor may not charge any additional fee, surcharge or change their pricing to account for the 7% Commission taken by WeddingMarkit LTD.
4.5 When charged: Commissions will be charged 10 days after the customer's reservation with you. This 10-dy period gives you and the customer time to arrange and confirm the booking.
4.6 Changes to commission percentage: We reserve the right to change the commission percentage. If we increase the commission percentage we will provide no less than 14 days notice to you. You have the option to change your listing plan, suspend your listing or discontinue the use of the product. You remain liable for all commissions payable on reservations received up until the time you discontinue use of the product or change plan. The new commission would apply to any reservations lodged from the point of publication onwards. Any bookings lodged prior to the commission percentage change will be billed at the old commission percentage - the one set at the time these reservations where received.
4.7 TERMINATION OF USE
We reserve the right to suspend your use of the Pay per Booking plan if; a) you have deliberately altered your minimum booking costs to undermine WeddingMarkit's commission taken, or b) where we have evidence that you have deliberately avoided commission payment by falsely notifying WeddingMarkit of cancellations or otherwise.
4.8 CANCELLATIONS AND REFUNDS
4.8.1 10-day cancellations: If a customer cancels within 10 days of making their reservation on WeddingMarkit, please notify us and we'll relist the applicable date.
4.8.2 Cancellations after 10 days: If a customer cancels or has not confirmed their booking with you after the 10-day cancellation period, you must provide WeddingMarkit with evidence that the booking did not eventuate. This may include, but not be limited to, the customer notifying you of their cancellation in writing (via email or otherwise), or if the customer fails to contact you, an email from you to the customer informing them that their reservation has been cancelled. This evidence and it's sufficiency will be at the discretion of WeddingMarkit. If a customer pays you a non-refundable deposit, and then cancels their booking with you, we reserve the right to retain the commission taken.
4.8.3 Commission changes and reversals: We will refund commissions charged if a reservation did not go ahead or was not completed provided you follow our refund process and provide sufficient evidence as per clause 4.8.1. This request must be made via email to our support team.
4.9 CHANGING PLANS
You can change from Pay per Booking plan to the Subscription Plan at any time. When you change plan you are still obligated to pay the commission associated with any booking requests you received while you where on Pay per Booking plan, up to the point in time you notified WeddingMarkit with your intention to change plan.
4.9.1 The rate(s) shown to Customers on the Platforms shall be inclusive of GST, sales tax, charges and all such other (national, governmental, provincial, state, municipal or local) taxes, fees, charges or levies (to the extent that such other taxes, fees and levies can be reasonably calculated upfront without further information). The Vendor will provide all of their packages, rates and all relevant pricing inclusive of these taxes, fees, charges or levies.
4.9.2 In the event of a dispute between WeddingMarkit LTD and the Vendor, (e.g. on the amount of the commission taken by WeddingMarkit from the Vendor), any undisputed amount of the Commission will be paid in accordance with the terms of this Agreement, notwithstanding the status or nature of the dispute. The liability of the dispute is limited to the individual amount of the Commission taken by WeddingMarkit from the Vendor, on a per-case basis.
5. Reservations & Payment
5.1 Reservation, Customer Reservation, complaints and Best Price Guarantee
5.1.1 When a reservation is made by a Customer on the Platform, the Vendor shall receive a confirmation for every reservation made via WeddingMarkit LTD, which confirmation shall include the date of reservation, the Guest's name and email address (collectively “CUSTOMER INFORMATION”) and such other specific request(s) made by the Customer. WeddingMarkit LTD is not responsible for the correctness and completeness of the information and dates provided by Customers. WeddingMarkit LTD is not responsible for any payment obligations of the Customers relating to the payment of the Vendor.
5.1.2 By making a reservation through the Platforms a direct contract (and therefore legal relationship) is created solely between the Vendor and the Customer (the “CUSTOMER RESERVATION”).
5.1.3 The Vendor is bound to accept a Customer as its contractual party, and to handle the online reservation in compliance with the Vendor's Information (including rate) contained on the Platforms at the time the reservation was made and the reservation confirmation, including any supplementary information and/or wishes made known by the Customer.
5.1.4 Payment obligations of the remaining balance of the Vendor's services after the customer makes an (online) reservation through the WeddingMarkit LTD Platform and all transactions between the Customer and the Vendor are the sole responsibility of the Vendor. The Vendor will contact the Customer via email within 24 hours of the Customer's reservation to organise (if necessary) a walkthrough of the property, a meeting with the Customer to discuss package booking options, or any services relevant to to the Vendor relevant to the Vendor's particular service offered.
5.1.5 It is the Vendor's responsibility to organise payment of the Vendor's services with the Customer. The customer has the option to cancel their reservation within 10 days of reserving their date, however as soon as any monetary transaction (e.g; deposit or otherwise to complete a booking) is conducted between you and the customer, the 10-day free cancellation period (or what remains of those 10 days) no longer applies.
5.1.6 Other than the fees, extra's and (sur-)charges as set out in the confirmed booking, the Vendor shall not charge the customer any transaction/administration fee or charge for the use of the Platform.
5.1.7 Complaints or claims in respect of (the products or service offered, rendered or provided by) the Vendor or specific requests made by Customers are to be dealt with by the Vendor, without mediation by or interference of WeddingMarkit LTD. WeddingMarkit LTD is not responsible for and disclaims any liability in respect of such claims from the Customers. WeddingMarkit LTD may at all times and at its sole discretion (a) offer customer (support) services to a Customer, (b) act as intermediate between the Vendor and a Customer, (c) provide -at the costs and expenses of the Vendor - alternative services of an equal or better standard in the event of a double-booking or other material irregularities or complaints in respect of the Vendor, or (d) otherwise assist a Customer in its communication with or actions against the Vendor.
5.1.8 In the event of a valid claim of a Customer under the Best Price Guarantee, WeddingMarkit LTD shall promptly notify the Vendor of such claim and provide the Vendor with the relevant details of the claim. The Vendor shall immediately adjust -to the extent applicable- the rate(s) made available at the Wedding Markit Platform such that the lower rate is available for further reservation(s). Furthermore, the Vendor shall immediately adjust the rate in the reservation made by the relevant Customer in its administration.
5.2 WeddingMarkit Payment Model
5.2.1 The Vendor is responsible at all times for the collection of the payment of their services with the Customer. The Vendor agrees and acknowledges that it is -at all times- responsible for the collection, remittance, withholding and payment to the relevant (tax) authorities (as applicable) of the relevant Taxes, (sur)charges, extra's and fees to the relevant tax authorities. The Vendor shall not further charge, request payment of or collect any amount from the Customer that has not already been included in their listed pricing.
5.2.2 The Vendor shall only issue an invoice to the Customer for the payment of their services (including or plus (as required by applicable laws) inclusive of all GST and applicable Taxes, surcharges and fees. The Vendor shall not invoice (or send an invoice to) WeddingMarkit LTD.
6. Cancellation & Overbooking
6.1 The Vendor shall provide the services reserved and in the event that the Vendor is not able to meet its obligations under this Agreement for any reason whatsoever, the Vendor shall promptly inform WeddingMarkit via Customer Service (firstname.lastname@example.org; whereas the subject line of each email shall state "overbooking"). The Vendor will use its best endeavours to procure alternative arrangements of equal or superior quality. In the event of multiple date overbookings, WeddingMarkit reserves the right to remove the Vendor from the Platform, either temporarily or permanently. In the event where the Vendor has overbooked by making two or more reservations on the same date (and thus needing to cancel a reservation) the customer who reserved their date with the Vendor on the WeddingMarkit Platform shall remain.
6.2 If the Customer chooses to cancel their reservation within the 10-Day Free Cancellation period, the Vendor will notify WeddingMarkit LTD via email of this, and so WeddingMarkit LTD can re-list the date on the Platform, as well as (if applicable) to prevent WeddingMarkit LTD from charging the Vendor the Commission for a cancelled reservation. WeddingMarkit LTD reserves the right to cross check with our customers or otherwise investigate where we feel a Vendor falsely notifying WeddingMarkit LTD of cancellations in order to avoid payment of commissions.
2.5.3 If the credit card (or any alternative guarantee made by the customer) is not effective or valid for any reason, this shall always be at the risk and for the account of the Vendor.
6.3 Direct marketing to customers
The Vendor agrees not to specifically target Customers that have been obtained via WeddingMarkit LTD in either online or offline marketing promotions or solicited or unsolicited mail.
7.1 The Vendor hereby grants WeddingMarkit LTD a non-exclusive, royalty free and worldwide right and license (or sublicense as applicable):
(a) to use, reproduce, have reproduced, distribute, sublicense, communicate and make available in any method and display those agreed upon elements of the Intellectual Property Rights of the Vendor as provided to WeddingMarkit LTD by the Vendor pursuant to this Agreement and which are necessary for WeddingMarkit LTD to exercise its rights and perform its obligations under this Agreement;
(b) to use, reproduce, have reproduced, process, distribute, sublicense, display and utilize (including without limitation to publicly perform, modify, adapt, communicate, reproduce, copy and make available to the public in any manner whatsoever) the Vendor Information.
7.2 WeddingMarkit LTD may sublicense, make available, disclose and offer the Vendor Information (including the relevant Intellectual Property Rights) of the Vendor and special offers made available by the Vendor on the Platforms and all such further rights and licenses set out in this Agreement via or in collaboration with (the websites, apps, platform, tools or other devices of) affiliated companies and/or third parties (the “THIRD PARTY PLATFORMS”).
7.3 In no event shall WeddingMarkit LTD be liable to the Vendor for any acts or omissions on the part of any Third Party Platforms. The sole remedy for the Vendor in respect of such Third Party Platforms is (i) to request Weddingmarkit LTD (which has the right and not the obligation) to disable and disconnect with such Third Party Platform, or (ii) termination of this Agreement, all in accordance with the terms of this Agreement.
8. Ranking, Customer Reviews & Marketing
4.1.1 The order in which the Accommodation is listed on the Platforms (the “RANKING”) on the 'all vendors' page for each region category, is randomly organised by WeddingMarkit LTD on a weekly basis. Ranking for specific vendor categories (I.e; Venues, photographers, videographers etc) is categorised alphabetically. Deals listed on the Platforms are organised randomly, on a weekly basis.
8.2 Customer reviews
8.2.1 Customers which have used the Vendor's services may be asked by WeddingMarkit LTD to comment on their use of the Vendor's services and to provide a score.
8.2.2 WeddingMarkit reserves the right to post these comments and scores on the Platforms.
8.2.3 WeddingMarkit LTD undertakes to use its best efforts to monitor and review Customer reviews in respect of obscenities or the mention of an individual's name. WeddingMarkit LTD reserves the right to refuse, edit or remove unfavourable reviews in the event that such reviews include obscenities or mention an individual's name.
8.2.4 WeddingMarkit LTD will not enter into any discussion, negotiation or correspondence with the Vendor in respect of (the content of, or consequences of the publication or distribution of) the Customer reviews.
8.2.5 WeddingMarkit LTD shall not have and disclaims any liability and responsibility for the content and consequences of (the publication or distribution of) any comments or reviews howsoever or whatsoever.
8.2.6 The guest reviews are for exclusive use by WeddingMarkit LTD and can be made available on such Platforms as from time to time made available to by WeddingMarkit LTD. WeddingMarkit LTD exclusively retains ownership of all rights, title and interest in and to (all intellectual property rights of) the guest reviews and the Vendor is not entitled to (directly or indirectly) publish, market, promote, copy, scrape, (hyper-/deep)link to, integrate, obtain, utilize, combine, share or otherwise use the guest reviews without prior written approval of WeddingMarkit LTD.
8.3 (Online) marketing and PPC advertising
8.3.1 WeddingMarkit LTD is entitled to promote the Vendor using the Vendor's company name(s) in online marketing, including email marketing and/or pay-per-click (PPC) advertising. WeddingMarkit LTD runs online marketing campaigns at its own costs and discretion.
8.3.2 The Vendor agrees not to specifically target the WeddingMarkit LTD brand directly through keyword purchases that use WeddingMarkit LTD's Intellectual Property Rights.
9. Representations & Warranties
9.1 The Vendor represents and warrants to WeddingMarkit LTD that for the term of this Agreement:
(i) the Vendor has all necessary rights, power and authority to use, operate, own (as applicable), (sub)license and have WeddingMarkit LTD make available on the Platforms (a) the relevant Services, and (b) the Intellectual Property Rights in respect of, as set out or referred to in the Vendor Information made available on the Platforms;
(ii) the Vendor 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 the Vendor available on the Platforms for
(iii) the price for the Services advertised on the Platforms correspond to the best available price with the Vendor and a better price cannot be obtained by a Customer making a reservation with the Vendor directly or via another (third) party or via another medium or channel, and
(iv) the Vendor and its directors and (direct, indirect and ultimate (beneficial) owners (and their directors) are not in any way connected to, part of, involved in or related to or under the control, management or ownership of:
(a) terrorists or terrorist organizations;
(b) parties / persons (i) listed as (special) designated nationals/entities or blocked person/entities, or (ii) otherwise subject to trade embargo, or financial, economic and trade sanctions, and
(c) parties / persons guilty of money laundering, bribery, fraud or corruption.
The Vendor shall immediately notify WeddingMarkit LTD in the event of a breach of this Clause 9.1 paragraph (iv).
9.2 Each Party represents and warrants to the other Party that for the term of this Agreement:
(i) it has the full corporate power and authority to enter into and perform its obligations under this Agreement;
(ii) it has taken all corporate action required by it to authorise the execution and performance of this Agreement;
(iii) this Agreement constitutes legal valid and binding obligations of that Party in accordance with its terms, and
(iv) each Party shall comply with all applicable governmental laws, codes, regulations, ordinances and rules of the country, state or municipal under which law the relevant Party is incorporated with respect to the products (to be) offered and/or services (to be) rendered by such Party.
9.3 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, including all implied warranties of merchantability or fitness for a particular purpose regarding such subject matter.
9.4 WeddingMarkit LTD disclaims and excludes any and all liability in respect of the Vendor which is related to any (temporary and/or partial) breakdown, outages, downtime, interruption or unavailability of the Platforms, and/or the Extranet.
10. Indemnification & Liability
10.1 Each Party (the "Indemnifying Party") shall be liable towards, and compensate, indemnify and hold the other Party (or its directors, officers, employees, agents, affiliated companies and subcontractors) (the "Indemnified Party") harmless for and against any direct damages, losses (excluding any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or any special, indirect or consequential losses and/or damages), liabilities, obligations, costs, claims, claims of any kind, interest, penalties,
and/or damages), liabilities, obligations, costs, claims, claims of any kind, interest, penalties, legal proceedings and expenses (including, without limitation, reasonable attorneys' fees and expenses) actually paid, suffered or incurred by the Indemnified Party pursuant to:
(i) a breach of this Agreement by the Indemnifying Party, or
(ii) any claim from any third party based on any (alleged) infringement of the third party's Intellectual Property Right by the Indemnifying Party.
10.2 The Vendor shall fully indemnify, compensate and hold WeddingMarkit LTD (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, claims of any kind, interest, penalties and legal proceedings paid, suffered or incurred by WeddingMarkit LTD (or its directors, officers, agents, affiliated companies and subcontractors) in connection with:
(i) all claims made by Customers concerning inaccurate, erroneous or misleading information of the Vendor on the Platforms;
(ii) all claims made by Customers concerning or related to the Vendor's Services, overbooking or (partly) cancelled or wrong reservations;
(iii) to the extent that any claims under or pursuant to the Best Price Guarantee are not settled between the Customer and the Vendor, all claims made by Customers regarding or pursuant to the Best Price Guarantee;
(iv) all other claims from Customers which are wholly or partly attributable to or for the risk and account of the Vendor (including its directors, employees, agents, representatives and the premises of the Vendor, if applicable) (including claims related to (lack of) services provided or product offered by the Vendor) or which arise due to tort, fraud, wilful misconduct, negligence or breach of contract by or attributable to the Vendor (including its directors, employees, agents, representatives and the premises of the Vendor, if applicable) in respect of a Customer or its property; and
(v) all claims against WeddingMarkit LTD in relation to or as a result of the failure of the Vendor to (a) properly register with relevant tax authorities, or (b) pay, collect, remit or withhold any applicable Taxes, fees and (sur)charges levied or based on the services or other charges hereunder in the relevant jurisdiction.
10.3 Save as otherwise provided for in this Agreement, the maximum liability of one Party to any other party in aggregate for all claims made against such party under or in connection with this Agreement in a year shall not exceed the aggregate Deposit received by WeddingMarkit for the reservation of the Vendor's Services on the Platform, unless in the event of tort, fraud, wilful misconduct, gross negligence, deliberate non-disclosure or deliberate deception on the part of the liable Party (i.e. the Indemnifying Party), in which event the limitation of liability is not applicable for such liable party. Parties agree and acknowledge that none of the limitations of liability set out in Clause 6 shall apply to any of the indemnifications in respect of third party claims (e.g. claims from Customers as described in 6.2) or third party liabilities.
10.4 In the event of a third party claim, Parties shall act in good faith and use their commercially reasonable efforts to consult, cooperate and assist each other in the defense and/or settlement of such claim, whereas the indemnifying Party shall be entitled to take over a claim and assume the defence (in consultation and agreement with the indemnified Party and with due observance of both Parties' interests), and neither Party shall 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 the other Party (which shall not unreasonably be withheld, delayed or conditioned).
10.5 In no event shall any Party be liable to any other Party 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). All such damages and losses are hereby expressly waived and disclaimed.
10.6 Each Party acknowledges that remedies at law may be inadequate to protect the other Party against any breach of this Agreement and 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.
11. Term, Termination & Suspension
11.1 Unless agreed otherwise, this Agreement shall commence on the date hereof 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.
11.2 Each Party may terminate this Agreement (and close the Vendor on the Platforms) or suspend this Agreement in respect of the other Party, with immediate effect and without a notice of default being required in case of:
(a) a material breach by the other Party of any term of this Agreement (e.g. delay of payment, insolvency, breach of rate parity guarantee, the provision of wrong information or receipt of a significant number of Guest complaints); or
(b) (filing or submission of request for) bankruptcy or suspension of payment (or similar action or event) in respect of the other Party.
11.3 Any notice or communication by WeddingMarkit LTD of "closure" ("close", "closed") of the Vendor on the website (or similar wording) shall mean termination of the Agreement. After termination, suspension or closure, the Vendor shall honour outstanding reservations for Customers in accordance with the terms of this Agreement.
11.4 The following events shall in any event be regarded as a material breach and entitle WeddingMarkit LTD to immediately terminate (close) or suspend the Agreement (without a notice of default):
(ii) the Vendor posts incorrect or misleading Information on the Platform;
(iii) the Vendor fails to maintain Information on the Platform resulting in over-bookings at the Vendor;
(iv) the Vendor fails to accept a reservation at the price shown on a reservation;
(v) the Vendor overcharges one or more customers;
(vi) the Vendor charges a Customer's credit card prior to the commencement of the Vendor's services without an express agreement from the Customer;
(vii) WeddingMarkit LTD receives one or more legitimate and serious complaint(s) from one or more guest(s) who made reservations with the Vendor;
(viii) misuse of the customer review process by any behaviour that results in a review appearing on the Platforms that is not an honest expression of a real experience by a real Customer with the Vendor;
(ix) inappropriate, unlawful or unprofessional behaviour towards Customers or WeddingMarkit LTD staff; or
(x) any (alleged) safety, privacy or health issues or problems in respect of the Vendor or its facilities (the Vendor shall at its own costs and upon first request of WeddingMarkit LTD deliver the relevant permits, licenses, certificates or such statements issued by an independent expert evidencing and supporting its compliance with applicable (privacy, safety and health) laws and legislation).
11.5 Upon termination and save as set out otherwise, this Agreement shall absolutely and entirely terminate in respect of the terminating Party and cease to have effect without prejudice to other Party's rights and remedies in respect of an indemnification or a breach by the other (terminating) Party of this Agreement. Clause 2.4, 6, 8, 9 and 10 shall survive termination.
12. Books & Records
12.1 The systems, books and records of WeddingMarkit (including the Platform, confirmation emails) shall be considered conclusive evidence of the existence and receipt by the Vendor of the reservations, unless the Vendor can provide reasonable and credible counter-evidence.
12.2 The Vendor shall upon first request of WeddingMarkit LTD fully cooperate and assist WeddingMarkit LTD with (and disclose all reasonably requested information in respect of) the identification of the (ultimate) owner, manager and/or controller of the Vendor.
13.1 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 Information, 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.
13.2 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.
13.3 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 (including the any technical, operational, performance and financial data (but excluding any Customer Information)) in confidence to an affiliated (group) company.
13.4 Parties shall use commercially reasonable efforts to safeguard the confidentiality and privacy of Customer Information 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 on the processing of personal data and the protection of privacy).
14.1 Neither party shall be entitled to assign, transfer, encumber any of its rights and/or the obligations under this Agreement without the prior written consent of the other party, provided that WeddingMarkit LTD may assign, transfer, encumber any of its rights and/or the obligations under this Agreement (in whole or in part or from time to time) to an affiliated company without the prior written consent of the Vendor. Any assignment or transfer by the Vendor shall not relieve the assignor of its obligations under the Agreement.
14.2 All notices and communications must be in English, in writing, and sent by facsimile, email or applicable address set out in the Agreement.
14.3 This Agreement (including the schedules, annexes and appendixes, which form an integral part of 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 (including vis-à- vis the Vendor).
14.4 If any provision of this Agreement is or becomes invalid or non-binding, the Parties shall remain bound by all other provisions hereof. In that event, the Parties shall replace the invalid or non-binding provision by provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
14.5 Unless set out otherwise in this Agreement, this Agreement shall be exclusively governed by and construed in accordance with the laws of New Zealand. Unless set out otherwise in this Agreement, any disputes arising out or in connection with this Agreement shall exclusively be submitted to and dealt with by the competent court in New Zealand.
14.6 Parties agree and acknowledge that notwithstanding this Clause 10.5, nothing in thisAgreement shall prevent or limit WeddingMarkit LTD in its right to bring or initiate any action or proceeding or seek interim injunctive relief or (specific) performance before or in any competent courts where the Vendor is established or registered under the laws of the relevant jurisdiction where the Vendor is established or registered and for this purpose, the Vendor waives its right to claim any other jurisdiction or applicable law to which it might have a right.
14.7 The original English version of these Terms may have been translated into other languages. The translated version of the English Terms is a courtesy and office translation only and the Vendor cannot derive any rights from the translated version. In the event of a dispute about the contents or interpretation of these terms and conditions of this Agreement or in the event of a conflict, ambiguity, inconsistency or discrepancy between the English version and any other language version of these Terms, the English language version shall prevail, apply and be binding and conclusive. The English version shall be used in legal proceedings.
14.8 In respect of (or as an award for) the execution, delivery, sealing, registration, filing of, and/or the execution, performance or delivery under or pursuant to, the Agreement, the Vendor (including its employees, directors, officers, agents or other representatives) shall (i) not directly or indirectly (a) offer, promise or give to any third party (including any governmental official or political party('s official, representative or candidate), or (b) seek, accept or get promised for itself or for another party, any gift, payment, reward, consideration or benefit of any kind which would or could be construed as bribery or an illegal or corrupt practice, and (ii) comply with all applicable laws governing anti-bribery and corrupt gifts and practices.
14.9 The Agreement may be entered into online or by way of executing a separate counterpart or by pdf, each of which (copies) shall be deemed an original, valid and binding. The Agreement only enters into force and effect upon written confirmation of acceptance and approval of the Vendor by WeddingMarkit LTD. By registering and signing up to the WeddingMarkIT LTD's Platform, the Vendor agrees, acknowledges and accepts the terms and conditions of this Agreement. The Agreement does not need any chop or seal to make it valid, binding and enforceable.