Instant Book Insertion Order Terms And Conditions (EMEA)
a. The following terms have the meanings assigned to them.
“Affiliate(s)” means any entity that, directly or indirectly, controls or is controlled by, or is under common control with, a party.
“Base Rate” means the per-night room rate a Customer pays with respect to a property from the making of the reservation through the property checkout, exclusive of taxes, fees and other optional amenities.
“Commission” means the amount that Partner owes TripAdvisor pursuant to the Agreement and as specifically provided in Campaign Information section of the associated IO.
“Commission Rate” means the percentage specified in an Instant Book Insertion Order applied to amounts paid by Customers to a Partner.
“Customer Stay” or “Stay” means a reservation completed by a customer and fulfilled by a Partner.
“Insertion Order(s)” or “IO(s)” means the Instant Book Insertion Order(s) signed by Partner and TripAdvisor.
“Instant Book” means TripAdvisor’s services and products offered through TripAdvisor site(s) and/or applications related to the provision of Customer’s travel reservation and payment information to Partner in order to facilitate the fulfillment of the related travel reservations with the Partner selected by Customer, whether such services and products are called “Instant Book” or any other name(s).
“Instant Book Platform” means the online reservation platform and tool (through its underlying software), offered through (i) applications (including via mobile and other platforms), (ii) TripAdvisor’s site(s) (www.tripadvisor.com and related domains), and/or (iii) TripAdvisor’s affiliates and distribution partners whereby users may enter reservation queries, review results, and select travel accommodations.
“Partner” means the party providing Supply and/or completing Transactions specified in the Instant Book Insertion Order.
“Personally Identifiable Information” or “PII” means information that can be used alone or with other information to identify, contact, or locate users of TripAdvisor’s site(s) and/or applications.
“Prohibited Person” shall mean any person, group, entity, nation or other banned or blocked person named: (a) on any list issued by the Office of Foreign Assets Control (“OFAC”) pursuant to Executive Order 13224 or the President, including the “Specially Designated National and Blocked Person List”, or similar lists.
“Supply” means travel accommodations and reservations made available for stays of one or more nights.
“Supply Listings” means Supply available for reservation as advertised on the Instant Book Platform.
“TripAdvisor” means TripAdvisor Ltd, with offices at 7 Soho Square, London W1D 3QB.
b. Other Definitional Provisions.
i. Each term defined in these Terms and Conditions has its defined meaning when used in the IO or an Exhibit.
ii. References to “Sections” are to Sections of these Terms and Conditions, and references to Exhibits are to Exhibits to the IO.
2. Instant Book Partner Agreement
The Instant Book Partner Agreement between TripAdvisor and Partner consists of the Insertion Order(s), including the Commercial Terms set forth in an IO (collectively, the “IO(s)”), the Terms and Conditions stated herein (these “Terms and Conditions”), and all Exhibits attached to the IO(s) (collectively, the “Agreement”), as amended from time to time. The parties shall indicate their mutual acceptance of the Agreement by executing and delivering the IO(s). Notwithstanding the foregoing, only in the event of a direct conflict between a provision in an IO (including any Commercial Term) and these Terms and Conditions, such provision of these Terms and Conditions shall control.
3. Description of Service; Party Obligations
TripAdvisor’s Instant Book Service will consist primarily of TripAdvisor providing to Partner marketing and technology services (the “Instant Book Service”) that will facilitate the transmission of reservation information of Partner’s Supply through the Instant Book Platform to Partner for processing, fulfillment, and customer service.
a. TripAdvisor’s Service Obligation. TripAdvisor’s sole obligation shall be to transmit to Partner reservation and payment information from users who select and book Partner’s Supply on the Instant Book Platform (such users, the “Customers”). TripAdvisor shall have no obligation to verify Customer’s payment information upon collecting or transmitting such information through Instant Book.
b. Partner’s Service Obligations. Upon receiving reservation and payment information from TripAdvisor, Partner shall (1) process Customer payment information in compliance with the rules, regulations, bylaws and other guidance of the applicable payment network (“Network Rules”); (2) fulfill reservations booked by Customers, and (3) be solely responsible for both (i) compliance with Partner’s posted Customer Care Policy, and (ii) payment and payment processing concerns, including, but not limited to, transaction authorizations, cardholder inquiries, errors, receipts, refunds and chargebacks.
4. Insertion Order Rules
These Terms and Conditions govern the use of the Instant Book Service and any transactions between the parties related to the Service. Partner shall complete and submit to TripAdvisor an IO. Each IO shall be signed by Partner and TripAdvisor and numbered with an individual IO number. Except for the Commercial Terms, no other conditions, provisions, or terms of any sort appearing in any writings or other communications, including without limitation those contained on any forms of payment, will be binding on TripAdvisor, whether in conflict with or in addition to these Terms and Conditions. Partner will use TripAdvisor’s Instant Book Service in accordance with applicable law and in a manner which does not interfere with, disturb, or disrupt other network users, services, or equipment, as determined by TripAdvisor in its sole discretion.
5. Partner-Provided Information, Marks, and Materials
Partner shall provide TripAdvisor with its trademark and/or copyright designations, terms and conditions, cancellation policies, rules, disclosures, regulations, rates, prices, taxes, tax recovery charges, services fees and other charges and fees for all Supply Listings, without revision, deletion or change of any sort whatsoever, except as may be required under Section 5(e) (“Supply Information”).
a. Right to Display Supply Listings, Supply Information and Materials. Partner hereby grants TripAdvisor the right to display Supply Listings and Supply Information in connection with the Instant Book Service and other forms of online advertising for Partner on TripAdvisor owned and branded websites, partner and white label websites, applications, and emails that are related to TripAdvisor and its affiliates, as defined at http://www.tripadvisor.com/pages/about_us.html. Furthermore, Partner hereby grants TripAdvisor the right in perpetuity to use, reproduce, perform, and display Supply Listings, Supply Information and Materials to supplement the property and room listing details on TripAdvisor owned and branded websites, partner and white label websites, applications, and emails that are related to TripAdvisor and its affiliates, as defined at http://www.tripadvisor.com/pages/about_us.html.
b. License to Use Marks and Materials. Partner hereby grants TripAdvisor a non-exclusive, royalty-free license to use, distribute, reproduce, perform, and display Partner’s trade names, trademarks, service marks, logos, and other similar indicia of identity or source (collectively, “Marks”) and all images, text and other copyrighted materials that either: (i) Partner provides to TripAdvisor; or (ii) TripAdvisor obtains from Partner website(s) and applications (collectively, “Materials”) in connection with the Instant Book Service and other forms of online advertising for Partner on TripAdvisor owned and branded websites, affiliate, partner and white label websites, applications, and emails that are related to TripAdvisor, as defined at http://www.tripadvisor.com/pages/about_us.html.
c. Partner Content Indemnification. Partner shall be solely responsible for the content of its Supply Information, Marks, and Materials and any website content or link(s) provided therein, and shall indemnify TripAdvisor for all loss, costs, and damages in connection with any claims of infringement of any third party rights and any claims arising from the Supply Information (including but not limited to unfair or deceptive act and practices and consumer protection claims).
d. Partner Representations and Warranties. Partner represents and warrants to TripAdvisor that at all times, (i) it is fully authorized to publish the entire contents and subject matter of all requested Supply Information, Marks, and Materials (including, without limitation, all text, graphics, content, URLs, and Internet sites to which URLs are linked); (ii) all such Supply Information, Marks, Materials, and Internet sites comply with all applicable laws and regulations and do not violate the rights (including, but not limited to, intellectual property rights) of any third party; and (iii) each such Internet site is controlled by Partner and operated by Partner or its independent contractors, is functional and accessible at all times, and is suitable in all respects to be linked to from the applicable site containing the listing.
e. Compliance with TripAdvisor’s Policies. Without limiting Partner’s obligations under Section 5, it is the Partner’s obligation to submit Supply Information in accordance with TripAdvisor’s then existing criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with TripAdvisor’s public image, TripAdvisor community standards, other editorial or advertising policies, and material due dates) (collectively “Policies”). TripAdvisor reserves the right, without liability, to modify, reject, remove and/or cancel any Supply Listing which contains content or links in its Supply Information, Marks, or Materials which do not meet TripAdvisor’s specifications. Notwithstanding any of the foregoing in this subsection (e), Partner remains responsible for the content of its Supply Information.
f. Publicity Rights. Partner grants TripAdvisor permission to publicize the fact that it is an Instant Book partner of TripAdvisor in a press release. However, Partner shall not use, display or modify TripAdvisor’s trademarks in any manner without the prior written consent of TripAdvisor.
a. Confidential Information. The parties agree that the recipient of any confidential or proprietary information of the other party provided or received hereunder will use such confidential information solely for the purposes for which it is provided by the other party; will not disclose such confidential information to any third party; and will protect such confidential information from unauthorized use and disclosure; provided, however, that TripAdvisor may share the confidential or proprietary information that it receives hereunder with its Affiliates. The foregoing obligations will not apply to any (i) information that becomes generally publicly available through no fault of the recipient, (ii) information that the recipient obtains from a third party (other than in connection with Instant Book); (iii) information that is independently developed or acquired by the recipient; (iv) disclosure with the prior written consent of the disclosing party; or (v) disclosures which are required by applicable law. Notwithstanding the foregoing, the recipient may disclose such confidential information if required by any judicial or governmental request, requirement or order; provided that the recipient will take reasonable steps to give the disclosing party sufficient prior notice in order to contest such request, requirement or order.
b. Customer Information. Partner will acquire information about Customers, including, without limitation, names, addresses, other contact information, and payment information (“Customer Information”). Partner will use such Customer Information solely to fulfill and manage reservations and shall maintain such Customer Information in strict confidence in accordance with clause 6(a) above, Section 7 below, and any other data protection policies furnished by TripAdvisor from time to time. TripAdvisor owns Customer Information collected by TripAdvisor.
7. Privacy and Data Security
b. Payment Card Industry Data Security Standard (“PCI DSS”) Compliance.
i. Partner represents and warrants that its payment processing practices comply with PCI DSS (v3.0 or successor version) requirements during the Term. During the Term, each party agrees to maintain security procedures to protect Customer cardholder data in compliance with PCI DSS. In addition, each party will insure the security and integrity of the handling, access, storage, processing, and transmission of such data and will abide by applicable U.S., Canadian, and European Union laws and regulations as may be enacted, adopted or determined from time to time regarding the confidentiality, use and disclosure of credit card information.
ii. Each party agrees to notify the other party within thirty (30) days if the party determines that it is not PCI-compliant, or is notified by a Qualified Security Assessor (QSA) that the party is not PCI-compliant.
iii. Each party shall comply with all applicable laws that require the notification of individuals in the event of unauthorized release of cardholder data. In the event of a breach of any of a party’s data security obligations herein or other event requiring notification under applicable law, the party agrees to assume responsibility for informing all such individuals in accordance with applicable law.
iv. Each party agrees to notify the other party’s authorized representative as soon as reasonably possible in the event of unauthorized release of cardholder data, once the party has determined that a breach has occurred.
v. Each party shall use best efforts to immediately remedy any security breach and prevent any further security breach at such party’s expense in accordance with applicable privacy rights, laws, regulations and standards.
c. Oversight of PII Protection and PCI Compliance. Upon request, the other party shall provide evidence that it has established and maintains technical and organizational security measures governing the processing of Customer PII and cardholder data. Each party will promptly correct deficiencies in the security measures identified by the other party.
8. Payment Terms
Partner shall make payment to TripAdvisor in accordance with the Commercial Terms agreed upon by the Parties. TripAdvisor may immediately remove Partner’s Supply Listings in the event of non-payment by Partner within such time period. All unpaid amounts will accrue interest at the rate of 1.5 percent per month or the legal maximum rate, whichever is less, until paid in full.
9. Financial Audit Rights
Each party will keep at its office (as specified at the start of the Agreement) full and accurate records of all financial transactions related to Instant Book, in accordance with generally accepted accounting practices (the “Records”). The Records will be open for examination at all reasonable times to the other party, or the other party’s representatives, upon reasonable notice to the party, for the purpose of verifying information related to Partner’s reservations. Each party will be limited to one such examination per year. All Records will be retained by each party for examination for a period of not less than three (3) years following the date of expiry or termination of the last IO under the Agreement.
Partner shall provide TripAdvisor with the tax rates applicable to Supply Listings, and shall promptly and timely update such tax rate information in the event the tax rates change during the term of the applicable IO. Partner is solely responsible for the accuracy of such tax rate information and any changes submitted to TripAdvisor, and for remitting such taxes to the applicable taxing authorities.
11. Term and Termination
a. Term. The term of the Agreement will begin on the Effective Date specified in the first IO between the parties and continue until the Agreement is terminated (the “Term”).
b. Termination. Either party may terminate the Agreement for convenience with sixty (60) days prior written notice. If either party is in breach or default under the Agreement, the non-defaulting party may terminate the Agreement by providing written notice to the defaulting party of (i) the nature of the breach and (ii) the intent to terminate. The effective date of termination will be thirty (30) days after receipt of the written notice.
c. Effect of Termination. The expiry or termination of the Agreement shall be without prejudice to any rights and liabilities, which have accrued prior to such expiry, or termination to either of the parties under the Agreement. Clauses 1, 5c), d) and g), 6, 7, 9, 13, 14, 15, 16, and 18 shall survive expiry or termination of the Agreement.
12. Cancellation of IO
Either party may cancel any IO, with or without cause, with 48 hours’ prior written notice. Cancellation of an IO does not terminate the Agreement. If any IO is cancelled for any reason, Partner shall pay TripAdvisor all outstanding amounts related to reservations made through the Instant Book Platform according to the payment terms herein. NEITHER TRIPADVISOR NOR ANY OF ITS AFFILIATES WILL HAVE ANY LIABILITY OF ANY NATURE TO PARTNER OR ANY CUSTOMER FOR THE EARLY CANCELLATION OF ANY IO.
13.Mutual Representations and Warranties
Each party represents and warrants as follows:
a. The party has all necessary right, power, and authority and has taken all necessary action to enter into the Agreement and perform the acts required of it under the Agreement;
b. The execution and performance of the Agreement does not and will not violate any agreement to which it is a party or by which it is otherwise bound, any applicable law, rule, or regulation.
c. Partner warrants that it will not use, or permit any use of, Partner’s websites and services in conjunction with the Instant Book platform and services by anyone from a country prohibited under U.S. export and/or Office of Foreign Assets Control (OFAC) regulations and any Prohibited Person under OFAC, including, but not limited to, regulations based upon sanctions, country programs against or embargoes.
a. Partner agrees to defend, indemnify and hold harmless TripAdvisor and each of TripAdvisor’s agents, subcontractors and Affiliates, and the officers, directors, and employees of any of the foregoing, from, against and in respect of any and all losses, costs, (including reasonable attorney’s fees) expenses, damages, assessments, or judgments (collectively, “Liabilities”), resulting from any claim or allegation (a) arising in connection with Partner’s obligations, representations or warranties under the Agreement, (b) arising from Partner’s misuse of Instant Book, or (c) arising from Customers whose transactions or reservations originated from the Instant Book Platform and were completed and/or fulfilled by Partner, except to the extent that such claims directly resulted from the gross negligence or willful misconduct of TripAdvisor.
b. TripAdvisor agrees to defend, indemnify and hold harmless Partner and each of Partner’s agents, subcontractors and Affiliates, and the officers, directors, and employees of any of the foregoing, from, against and in respect of any and all Liabilities resulting from any claim or allegation raised in connection with TripAdvisor’s gross negligence or willful misconduct under the Agreement.
15. Disclaimer of Warranty
EXCEPT AS OTHERWISE STATED HEREIN, TRIPADVISOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES AS TO THE TRIPADVISOR SITE(S) OR THE INSTANT BOOK PLATFORM, OR THE FUNCTIONALITY, PERFORMANCE, OR RESPONSE TIMES OF THE TRIPADVISOR SITE(S) OR THE INSTANT BOOK PLATFORM.
16. Limitation of Liability
EXCEPT FOR BREACH OF SECTIONS 6 AND 7 (CONFIDENTIALITY; PRIVACY AND DATA SECURITY) OR CLAIMS RESULTING FROM TRIPADVISOR’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TRIPADVISOR DISCLAIMS AND SHALL NOT BE LIABLE FOR ANY OTHER LOSS, INJURY, COST OR DAMAGE SUFFERED BY PARTNER OR ANY THIRD PARTY. FURTHERMORE, IN NO EVENT SHALL TRIPADVISOR BE LIABLE FOR CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS. THIS PROVISION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT. IN NO EVENT SHALL TRIPADVISOR OR ANY OF ITS AFFILIATES BE LIABLE TO PARTNER FOR AN AMOUNT IN EXCESS OF THE DOLLAR AMOUNT ACTUALLY RECEIVED BY TRIPADVISOR FROM PARTNER IN THE MOST RECENT TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY UNDER THE AGREEMENT.
17. Force Majeure
“Force Majeure Event” means any event affecting the performance of any provision of this Agreement arising from or attributable to acts, events, omissions or accidents which are beyond the reasonable control of a party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war). Neither party will be liable for any delay in performing or failure to perform its obligations under this Agreement to the extent that and for so long as the delay or failure results from any Force Majeure Event, provided the same arises without the fault or negligence of such party. Each party will use its reasonable endeavors to minimize the effects of any Force Majeure Event.
18. General Provisions
a. Governing Law. The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the Commonwealth of Massachusetts, without reference to its choice of law principles to the contrary. Neither party will commence or prosecute any action, suit, proceeding or claim arising out of or related to the Agreement other than in the state or federal courts located in Boston, Massachusetts. Each party hereby irrevocably consents to the jurisdiction and venue of such courts in connection with any such action, suit, proceeding or claim. In any suit, arbitration, mediation or other action to enforce any right or remedy under the Agreement or to interpret any provision of the Agreement, the prevailing party will be entitled to recover its costs, including reasonable attorneys’ fees, including without limitation, costs and fees incurred on appeal or in a bankruptcy or similar action.
b. Miscellaneous. The waiver of any provision of the Agreement shall not constitute a waiver of any other provision(s) or of the same provision on another occasion. If any provision of the Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Partner and TripAdvisor. Partner may not assign its rights hereunder to any third party unless TripAdvisor expressly consents to such assignment in writing, not to be unreasonably withheld.
c. Entire Agreement. The Agreement constitutes the entire understanding and Agreement between the parties and supersedes any and all prior understandings and/or Agreements between the parties with respect to the subject matter. No change, amendment or modification of any provision of the Agreement or waiver of any of its terms will be valid unless set forth in writing and mutually agreed to by the parties. Notwithstanding the foregoing, TripAdvisor may amend this Agreement at any time, by giving Partner notification of the amendments in writing or via email. Unless otherwise stated in the notification or unless Partner terminates this Agreement (as permitted by this Agreement or the notification), any amendments shall be automatically effective ten (10) days after they are notified to Partner.
Last Updated: May 2018