TERMS OF SERVICE
between
- TRAVELTEK LIMITED, incorporated and registered in Scotland with company number SC169803 whose registered office is at Centrum Building, 38 Queen Street, Glasgow, G1 3DX (“Traveltek”, “we”, “us”, “our”); and
- The company identified in the Order (as defined below) (“you”, “your” or “Customer”).
Traveltek offers a comprehensive range of services that enable travel businesses to become more productive, efficient and scalable (the Services). The Services are offered subject to your agreement to these terms and conditions and any supplementary terms incorporated herein.
1. Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
| “Confidential Information” | technical or proprietary information and any information disclosed, or being disclosed in the future, related to the provision or use of the Services that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. |
| “Customer Data” | the data input into the Services by you or any Users in the process of accessing and/ or using the Services. |
| “Consulting Services” | any professional services we provide to you which may include training services, installation, integration or other consulting services. |
| “Data Protection Legislation” | all applicable data protection and privacy legislation in force from time to time in the UK, including the UK Data Protection Act 2018 and all other legislation and regulatory requirements in force from time to time which apply to the use of personal data. |
| “Effective Date” | the date upon which the Order has been accepted by us via email confirmation. |
| “Fees” | the amount you pay for the Services including the Subscription Fee as set out in the Order or updated by notice. |
| “Initial Term” | the period of 12 months, commencing on acceptance by us of your Order via email confirmation |
| “Intellectual Property Rights” | Patents, designs, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, together with all of the goodwill associated therewith, rights in computer software, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications which subsist now or will subsist in the future in any part of the world. |
| Insolvency Event | means that a Party enters into any arrangement between itself and its creditors, a Party ceases to be able to pay its debts as they become due, a Party ceases to carry on business, a mortgagee enters into possession or disposes of the whole or any part of the Party’s assets or business, an order is made or a resolution passed for the winding-up or dissolution of a Party, or a receiver, a receiver and manager, a trustee in bankruptcy, an administrator, a liquidator, a provisional liquidator or other like person for the Party’s applicable place of incorporation is appointed over the whole or any part of the Party’s assets or business. |
| “Order” | means the Traveltek approved form or proposal document which sets out details of the Services and Fees and by which you agree to subscribe to the Subscription Service, volume-based services, and purchase any Consulting Services. |
| “Personal Information” | has the meaning given to it in the Privacy Act. |
| “Privacy Act” | means the Australian Privacy Act 1988 (Cth) as amended or replaced from time to time. |
| “Privacy Laws” | Means all legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to Personal Information, including the Privacy Act. |
| “Renewal Term” | means each subsequent 12 month period after the Initial Term. |
| “Services” | certain services which may include the Subscription Service, volume-based services, and Consulting Services provided by Traveltek to you under this agreement. |
| “Subscription Fee” | the amount you pay for the Subscription Service. |
| “Subscription Service” | the web-based applications, tools and platforms provided by us that you have subscribed to. |
| “Subscription Term” | means the Initial Term of your subscription to the Subscription Service, as specified on your Order, and each subsequent Renewal Term (if any). |
| “Usage” | the amount you pay for any additional volume based services. |
| “Users” | means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service. |
| “Virus” | any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices. |
1.2 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.3 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.4 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.5 A reference to writing or written includes e-mail.
1.6 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference of this agreement or such other agreement or document, in each case as varied from time to time (and shall be deemed as though fully incorporated herein).
1.7 These terms prevail over any Customer general terms and conditions, regardless of whether or when you have submitted the Order. Our provision of services to you does not constitute acceptance of any Customer terms and conditions.
1.8 In the event of any conflict between the body of this agreement and any other documents or agreements referred to herein, the provisions of this agreement shall always prevail.
2. YOUR RIGHTS AND DUTIES
2.1 Subject to you paying the Fees in accordance with clause 8 and complying with all other terms and conditions of this agreement, we will provide the Services to you during the Subscription Term.
2.2 You agree that you, including all Users, will use the Services in a lawful manner and that you and your Users will obey all laws, rules and regulations in the use of our Services. You shall not, and shall procure that Users shall not, distribute or transmit any Viruses or exploit any vulnerabilities.
2.3 You shall not, and shall procure that all Users shall not, except to the extent expressly permitted under this agreement:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services;
(c) access all or any part of the Services in order to or with the intention of building a product or service which competes or is likely to compete with the Services;
(d) pre-fetch, retrieve, cache, index, or store any portion of the Services;
(e) subject to clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Services, or otherwise make the Services available to any third party other than as permitted in accordance with the terms of this agreement, or
(f) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.
2.4 You shall use, and shall procure that all Users shall use, best efforts to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, immediately notify us. This shall include requiring Users to keep any log-in details and credentials confidential and secure. You will be responsible for any User’s breach of the terms of this agreement.
2.5 The rights provided under this clause 2 are granted to you only, and shall not be considered granted to any subsidiary or holding company of yours.
2.6 You will cooperate with us in all matters relating to the Services, and provide us with all necessary information as we may reasonably require and at no cost to us, grant a royalty-free, worldwide, irrevocable licence to us to any information or materials which you provide in order to enable us to provide the Services.
2.7 You will obtain and maintain all necessary licences and consents and comply with all relevant legislation required to enable us to provide the Services to you.
2.8 If you breach any terms of this clause 2, the Services or part of them may be subject to suspension, termination or such other action as we may deem appropriate without notice. No refund of Fees will be made in respect of suspension or termination arising under breach of this clause 2, nor shall any liability arise as a result of any data or other loss so arising.
3. SERVICES
3.1 During the Subscription Term, we will make the Subscription Service available to Users. Such access to the Subscription Service is made available subject to and strictly in accordance with the terms of this agreement.
3.2 We will use commercially reasonable efforts to make the Subscription Service available 24 hours a day, seven days a week, except for planned maintenance carried out during normal business hours; or unscheduled maintenance performed outside normal business hours (in which case we will try to provide you with advance notice to the extent possible).
3.3 We will provide you with our standard support services in accordance with our Service Level Agreement (“SLA”) as published from time to time at www.traveltek.com/au (and made available upon request).
3.4 We may modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve user experience.
3.5 Where applicable, variable rate billing, or Usage, will be invoiced based on data we measure from your use of the Services.
3.6 We will use reasonable efforts to supply Consulting Services and deliver deliverables as specified in the Order in accordance with this agreement in all material respects.
3.7 We will use reasonable efforts to meet any performance dates or milestones specified in the Order, but any such dates will be estimates only and time for performance by us shall not be of the essence of this agreement.
3.8 If our performance of the obligations under this agreement is prevented or delayed by you, or one of your agents, subcontractors, consultants or employees, then without prejudice to any other right or remedy we may have, we are entitled to an extension of time to perform equal to the delay caused by you.
4. API LICENCE
Where we agree to grant a licence to you to use our Application Programming Interface (“API”), we may impose limits and quotas on your use of the Services as communicated to you from time to time. We reserve the right to monitor and apply a cap on the ratio of searches to orders you make via the Services.
5. YOUR DATA AND PRIVACY
5.1 You or business customers of yours (being organisations engaged in the provision of travel and leisure products and services) shall own all right, title and interest in and to your data and you shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of your data.
5.2 We shall not be responsible for any loss, destruction, alteration or disclosure of your data caused by any third party (except those third parties sub-contracted by us to perform services related to your data maintenance and back-up).
5.3 We shall, in providing the Services, comply with our information security policy, to be made available upon request.
5.4 Each party will in the performance of its obligations and the exercise of its rights under the agreement, including the use of the Services, comply with all Privacy Laws, including in relation to security of Personal Information, in relation to any Personal Information that is collected, stored, used, disclosed or otherwise dealt with under or in connection with this Agreement. If a party is not an APP Entity (within the meaning of the Privacy Act), the party will comply with the requirements of the Privacy Act as if it was an APP Entity.
5.5 You shall not do or omit to do anything in relation to Personal Information that would cause Traveltek to contravene any Privacy Law.
5.6 You shall obtain all necessary appropriate consents and make all disclosures that are necessary under Privacy Laws, to enable Traveltek to perform its obligations under this agreement without breaching any Privacy Laws. You will be responsible for the accuracy, quality, and legality of the Personal Information collected or provided by you in connection with the use of the Services and for ensuring that the means by which you acquired that Personal Information complies with Privacy Laws.
5.7 Where a party receives Personal Information from the other party in connection with this agreement, it must only use and disclose the Personal Information for the purposes of complying with and performing its obligations under this agreement.
5.8 You shall cooperate with Traveltek to resolve any complaint or inquiry made under any Privacy Law or in relation to any request to access or correct Personal Information.
5.9 In the event that we become aware of an eligible data breach (as defined in the Privacy Act), we will notify you without undue delay.
5.10 You consent to us appointing third party subcontractors to assist us with the provision of the Services. Such subcontractors and their personnel may access Personal Information provided by you to perform their functions. The subcontractors and their personnel may be located outside Australia. We will notify you about the identity and country of location of each current and anticipated subcontractor. We confirm that we have entered into, or will enter into, written agreements with any third party subcontractor containing obligations which are not less protective than those provided in this agreement in relation to the protection of Personal Information, to the extent applicable to the nature of the services provided by such subcontractor.
5.11 Where a party is subject to the Data Protection Legislation and processes any personal data (as those terms are defined in the Data Protection Legislation) in connection with this agreement, such processing will be done in accordance with the Data Protection Legislation and, if required by us, as set out in a separate data processing addendum (“DPA”).
6. THIRD PARTY PROVIDERS
6.1 You acknowledge that the Services may enable or assist you or the Users to access the website content or platforms of, correspond with, and/ or purchase products and services from third parties and that such activities are performed at your own risk or the risk of such Users.
6.2 We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any such third-party websites or platforms, correspondence with any such third-parties, any transactions completed via such third-party websites or platforms, or any contract entered into by you or any User and any such third party.
6.3 Any contract entered into and any transaction completed via any third-party website is between you or a User as appropriate and the relevant third party, and not us. We recommend that you or any User refers to the third party’s website or platform terms and conditions and privacy policy prior to accessing the relevant third-party website or platform and/ or using the services of such third party.
6.4 Unless specifically agreed to by us or where the nature of the scope of Services indicates, we do not endorse or approve any third-party website or platform nor the content of any of the third-party websites or platforms made available via the Services.
7. TRAVELTEK’S OBLIGATIONS
7.1 To the extent permitted by applicable laws, the services are provided on an “as is” and “as available” basis and you assume sole responsibility for the results produced by them and any conclusions drawn therefrom.
7.2 We do not warrant that your use of the services will be uninterrupted or error-free; or that the services and/ or the information obtained by you through the services will meet your requirements.
7.3 We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 We warrant that the use of the Services by you shall not infringe the rights, including any Intellectual Property Rights, of any third party and in respect of a breach of this clause 7.4 by us, shall indemnify you against all liabilities, costs, expenses, damages and losses suffered or incurred by you arising out of use of the Services.
8. CHARGES AND PAYMENT
8.1 We will provide the Services to you at the Fees detailed in the Order, as noticed to you by us under clause 8.11, or as otherwise agreed between you and us from time to time.
8.2 You shall pay the Fees to us in the currency invoiced and in accordance with this clause 8.
8.3 We shall invoice you:
(a) for any Consulting Services and the first monthly Subscription Fee (pro -rated to the end of the month of Order) on the Effective Date;
(b) for the Subscription Fee (other than the first monthly Subscription Fee), monthly in advance;
(c) for any Usage, monthly in arrears.
8.4 Payment for all invoices will be due within 7 days of the date of invoice.
8.5 Notwithstanding clause 8.4, you shall on the Effective Date supply to us and maintain valid, up-to-date and complete credit card details or other approved electronic payment method and you hereby authorise us to bill such credit card or take such other approved electronic payment method in accordance with this clause 8.
8.6 All payments by you shall be made without set-off or counterclaim and without any deduction.
8.7 Where you pay any Fees in any other form than that set out in clause 8.5, we are entitled to charge an additional service fee, which will be notified to you in advance.
8.8 All Fees stated or referred to in this agreement are exclusive of sales, use, excise or other indirect or transactional taxes which shall be added to the Traveltek’s invoice(s) at the appropriate rate.
8.9 If you are required to apply any withholding taxes from the Fees you pay to us, you will gross up the amount you pay us so that the net amount we receive is equal to the amount we have invoiced you.
8.10 If we have not received payment within 30 days after any due date for payment under this agreement, and without prejudice to any other rights and remedies we may have:
(a) we may, without liability to you, disable your access to all or part of the Services and we shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) we may charge interest on any such unpaid amounts at a rate of 1% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid.
8.11 We shall be entitled to revise our fees at any time by giving you thirty (30) days’ notice, or a longer period if required by law, in writing of any such increase before any fee revision takes place. Any rights we have to vary the agreement under Clause 16 will take precedence to this clause.
8.12 All Fees are non-refundable, and we do not provide refunds or credits for any partial use or non-use of the Services.
(a) In this clause, the expressions Consideration, GST, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (GST Act), and Supplier means any party treated by the GST Act as making a Supply under this agreement.
(b) Unless otherwise expressly stated, all prices or other sums payable under or in accordance with this agreement are exclusive of GST.
(c) If GST is imposed on any Supply made under or in accordance with this agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment.
(d) Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with this agreement.
9. PROPRIETARY RIGHTS
9.1 You acknowledge and agree that Traveltek and/or its licensors own all Intellectual Property Rights in the Services which are capable of being owned. Except as expressly stated herein, this agreement does not grant you any rights to, or in, patents, copyright, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
9.2 We confirm that we have all the rights in relation to the Services that are necessary to grant all the rights we purport to grant under, and in accordance with, the terms of this agreement.
9.3 In the defense or settlement of any claim brought against you that the Services infringe any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, we may procure the right for you to continue using the Services or replace or modify the Services so that they become non-infringing provided always that the functionality of any replacement or modified Services is, in all material respects, the same or substantially the same.
9.4 We do not solicit ideas, suggestions, improvements, enhancements and/ or feature requests relating to the Services (“Suggestions”) and if you provide us with any Suggestions then you further grant us a worldwide, perpetual, irrevocable, royalty-free licence to use, reproduce, display, distribute, modify and create derivative works of and commercially exploit and sublicence Suggestions in any manner we deem fit. Suggestions are non-confidential and non-proprietary.
9.5 In no event shall Traveltek, its employees, agents and sub-contractors be liable to you to the extent that any alleged infringement is based on:
(a) A modification of the services by anyone other than Traveltek; or
10. CONFIDENTIALITY
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
10.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
10.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.5 You acknowledge that details of the Services, and the results of any performance tests of the Services, constitute Traveltek’s Confidential Information.
10.6 The above provisions of this clause 10 shall survive termination of this agreement, however arising.
11. INDEMNITY
11.1 You shall indemnify Traveltek and keep Traveltek indemnified against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:
(a) use of the Services by anyone other than a User where such use is a result of a breach of the terms of this agreement by you;
(b) your use of the Services or any part of them by any User other than in accordance with the terms of this agreement, including any use which infringes the Intellectual Property Rights of Traveltek or any third party who has licensed its Intellectual Property Rights to Traveltek;
(c) any breach of your warranties as set out in this agreement; and
(d) anything supplied by you to Traveltek to allow us to provide the Services.
12. LIMITATION OF LIABILITY
12.1 To the extent permitted by law, and except as expressly and specifically provided in this agreement:
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you assume sole responsibility for results obtained from the use of the services by you, and for conclusions drawn from such use.
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Traveltek shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Traveltek by you in connection with the services, or any actions taken by Traveltek at your direction; and
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all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from this agreement.
12.2 Nothing in this agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on Customer by the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement (“Non-Excludable Guarantee”).
12.3 To the maximum extent permitted by law, the Traveltek’s liability for breach of a Non-Excludable Guarantee is limited, at its option, to:
(a) in the case of goods, any one or more of the following:
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the replacement of the goods or the supply of equivalent goods;
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the repair of the goods;
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the payment of the cost of replacing the goods or of acquiring equivalent goods; or
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the payment of the cost of having the goods repaired; or
(b) in the case of services:
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the supplying of the services again; or
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the payment of the cost of having the services supplied again.
12.4 To the maximum extent permitted by law and subject to clauses 12.1, 12.2 and 12.3, in no event will Traveltek be liable under or in connection with this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or otherwise, for any Consequential Loss suffered or incurred by you under or in connection with this agreement where Consequential Loss means:
(a) loss of profits, loss of business, loss of revenue, depletion of goodwill and/or similar losses, loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; or
(b) any other loss suffered or incurred by a person that does not arise according to the usual course of things out of any breach of this agreement or other event giving rise to the liability,
whether or not such loss was in the contemplation of the parties at the date of this agreement.
12.5 To the maximum extent permitted by law, in no event will Traveltek’s aggregate liability arising out of or related to this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or otherwise exceed 100% of the fees paid by you during the 6 months immediately preceding the event giving rise to the claim.
13. TERM AND TERMINATION
13.1 This agreement shall commence on the Effective Date and shall continue for the Initial Term and, thereafter, shall be automatically renewed for the Renewal Term, unless:
(a) either party notifies the other party of termination in writing at least 90 days before the end of the Initial Term or any Renewal Term, in which case the agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Term; or
(b) otherwise terminated in accordance with the provisions herein.
13.2 Without limiting any other rights or remedies available to it, either party may terminate this agreement with immediate effect by giving written notice to the other if the other party commits a material breach of any term of the agreement and (if such a breach is remediable) fails to remedy that breach within 30 days after being notified in writing to do so.
13.3 Without limiting our other rights or remedies, we may terminate this agreement with immediate effect by giving written notice to you if:
(a) you fail to pay any amount due under the agreement on the due date for payment and remain in default not less than 15 days after being notified in writing to make such payment;
(b) you commit a material breach of any of the other terms of this agreement and, if such breach is remediable, fail to remedy that breach within 15 days of being notified to do so;
(c) you suffer an Insolvency Event.
13.4 Without limiting your other rights or remedies, you may terminate this agreement with immediate effect by giving written notice to us if we suffer an Insolvency Event.
13.5 Without limiting our other rights or remedies, we may suspend the Services made available under this agreement if you become subject to any of the events listed in clause 13.3(b) or clause 13.3(c) or we reasonably believe that you are about to become subject to any of them, or if you fail to pay any amount due under this agreement on the due date for payment.
13.6 On termination of this agreement for any reason:
(a) all licences or other rights granted under this agreement shall immediately terminate;
(b) each party shall return and make no further use of any property, documentation and other items (and all copies of them) belonging to the other party;
(c) Traveltek may destroy or otherwise dispose of any of Customer Data in its possession unless Traveltek receives, no later than ten days after the effective date of the termination of this agreement, a written request for the export of Customer Data to you. Traveltek shall use reasonable commercial efforts to export the Customer Data within 30 days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by Traveltek in returning or disposing of Customer Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
14. NON-SOLICITATION
You will not (directly or indirectly, for the benefit of yourself or any other person), during the term of this agreement and for a period of six months after its expiry or termination for any reason, solicit or hire as an employee or consultant any employee or consultant of Traveltek.
15. FORCE MAJEURE
The parties shall have no liability to each other under this agreement if they are prevented from or delayed in performing their obligations under this agreement, or from carrying on their business, by acts, events, omissions or accidents beyond their reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party’s), failure of a utility service, transport or telecommunications network or any third party supplier, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the other is notified of such an event and its expected duration.
16. VARIATION
Technology changes fast and we want to keep our services up to date. We shall have the ability to update, replace, remove or add to the terms of this agreement at any time and in our sole and absolute discretion. Such changes shall deem to take effect from the date such update is made. We will provide you with notice of any such changes via electronic means (via email, or by posting to our website). The then current terms will supersede all earlier versions and you agree that your continued use of our Services after a change has been made will constitute your acceptance of such changes. It is your responsibility to review our terms frequently and to remain informed of any changes to them.
17. WAIVER
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18. RIGHTS AND REMEDIES
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
19. SEVERANCE
19.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
19.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
20. ENTIRE AGREEMENT
20.1 This agreement constitutes the entire agreement and understanding between the parties in respect of the matters dealt with in it and supersedes any previous agreement between the parties relating to such matters.
20.2 Each of the parties represents and agrees that in entering this agreement it does not rely on, and will have no remedy in respect of, any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not and whether negligently or innocently made) of any person (whether party to this agreement or not) relating to the subject matter of this agreement other than as expressly set out in this agreement.
20.3 To the extent permitted by law, you give up any rights against us regarding any warranty or representation except in respect of any warranty or representation expressly made in this agreement. To the extent permitted by law, and subject to provisions of this agreement, the only remedy available to either party for breach of the warranties will be for breach of contract under the terms of this agreement.
20.4 To the extent permitted by law, subject to provisions of this agreement, and except for those expressly set out in this agreement, all warranties, conditions, representations and undertakings (including without limitation any and all warranties, conditions, representations and undertakings implied by statute, common law or otherwise) are excluded to the fullest extent permitted by law.
21. ASSIGNMENT
21.1 You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this agreement.
21.2 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under this agreement.
22. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23. THIRD PARTY RIGHTS
Save to the extent expressly provided in this agreement and without prejudice to the rights of any permitted successor or assignee of either party, it is expressly declared that no rights shall be conferred under or arising out of this agreement upon any person other than the parties.
24. NOTICES
Any notice required to be given under this agreement shall be in writing (which includes email) and signed by or on behalf of the party giving it and shall be served:
(a) by delivering it by hand or by sending it by nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid); or
(b) by e-mail, provided that the requirement for the notice to be signed will not apply to notices served by e-mail,
to the other party at its address or email address set out in the applicable Order, or such other address or email address as may have been notified by that party for such purposes.
25. DISPUTE RESOLUTION CLAUSE
The parties shall attempt in good faith to resolve any dispute arising out of or relating to this agreement promptly by informal negotiation. If the matter has not been resolved within thirty (30) calendar days of a party’s request for negotiation, then the parties must submit the dispute to any mutually agreed mediation service, and shall use commercially reasonable efforts to participate in the mediation, with a good faith attempt to settle the dispute. Costs of mediation shall be shared equally between the parties. The parties shall be entitled to attend mediation via teleconference. If the parties cannot resolve any dispute for any reason via mediation within 30 days, then either party may commence legal proceedings.
26. GOVERNING LAW
This agreement is governed by and construed in accordance with the laws of the state of New South Wales, Australia.
27. JURISDICTION
Each party submits to the exclusive jurisdiction of the courts exercising jurisdiction in New South Wales, Australia, and any court that may hear appeals from any of those courts, for any proceedings in connection with this Agreement.
