Agreed Terms
1.1 Definitions:
1.2 References to any person(s) shall include bodies corporate and unincorporate, associations, firms and partnerships. Words denoting the singular shall include the plural, words denoting any gender shall include any other gender and references to clauses, sub-clauses, are, unless otherwise stated, to clauses and sub-clauses of this Agreement.
2.1 This Agreement between the named parties above will commence on the Commencement Date specified above and will continue in full effect until terminated in writing by either party, as described in Clause 11 of this Agreement.
2.2 This Agreement shall apply to all Services supplied by the Supplier on or after Commencement Date including all Services agreed to be supplied by the Supplier in writing or otherwise.
2.3 Where the parties have signed each other’s contracts in relation to the same Services, in the event of any conflict or ambiguity, the terms of this Agreement shall always take precedence. Furthermore, this Agreement shall always supersede and take precedence over any other agreement, terms and conditions or other such document provided by the Supplier to the Company and relating to the same services/subject matter, whether or not the documents have been signed and/or it is dated on or after the date of this Agreement.
2.4 The Supplier confirms he has full and unrestricted power to enter into this Agreement.
2.5 The Supplier confirms that the Services shall be provided directly by the Supplier and/or his employees and third parties appointed (sub-contractors) by the supplier. Where the Supplier appoints or uses a sub-contractor or other supplier in the provision of the Services, the Supplier’s appointment of a sub-contractor shall not relieve the Supplier from any of the Supplier’s obligations under this Agreement and the Supplier shall be responsible for the acts and omissions of any sub-contractor howsoever arising.
2.6 Any changes to the terms of this Agreement must be made with the prior written consent of both parties, and will come into effect from the date specified in the written consent.
3.1 The Supplier shall provide the Services in compliance with the descriptions as agreed by the Supplier in writing or otherwise and/or otherwise represented by the Supplier or on its behalf from time to time. When requested to do so, the Supplier shall approve any description(s) and/or other wording prepared by or on behalf of the Company for any purpose whatsoever in a timely manner. Once approved, the Supplier agrees that all such description(s) and other wording are and shall remain correct and will notify the Company immediately if this no longer remains the case.
4.1 In consideration for the provision of the Services, the Company shall pay the Supplier the Charges in accordance with this clause 4.
4.2 If the Supplier is paid directly by the Customer as accepted in clause 5.2, the Company will not be liable for any charges in such situation(s).
4.3 All amounts payable by the Company exclude amounts in respect of value added tax (VAT), which the Company shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
4.4 The Supplier shall submit invoices for the Charges plus VAT if applicable to the Company within time frame as agreed by the Supplier in writing or otherwise of the applicable Services by the Supplier to Customers. Each invoice shall include all reasonable supporting information required by the Company.
4.5 The Company shall pay each invoice due and submitted to it by the Supplier, on a net monthly basis, 30 days from invoice or as otherwise agreed between the Company and the Supplier. Invoices will detail the Customer’s name, booking number, arrival and departure date (if applicable) and applicable rates charged.
4.6 The Charges shall include all taxes, charges, dues, fees and all other sums of whatever nature which relate to the Services and shall apply to all Services provided by the Supplier at any time during the period of this Agreement. The Supplier shall not be able to increase the Charges without the Company’s consent.
4.7 The Company shall be entitled to deduct from the payment any sums claimed by the Company from the Supplier under the terms of this Agreement or any other agreement between the parties or on any other basis whatsoever.
4.8 In the event of any dispute in respect of any payment the Company shall be entitled to withhold the sum in question until the dispute is settled.
4.9 The Company reserves the right to choose what currency the Company pays the Supplier in.
5.1 The Supplier agrees to provide the Services in compliance with the descriptions as agreed by the Supplier in writing or otherwise and/or represented by the Supplier or on its behalf from time to time.
5.2 The Supplier accepts that the Customer may contract and/or pay for the Services directly with the Supplier rather than the Company which will be confirmed by the Company to the Supplier at the time of booking.
5.3 The Supplier will ensure performance of the Services with a high level of due skill, care and diligence, and all personnel provided by the Supplier (whether or not employed by the Supplier) in connection with the provision of the Services will be appropriately qualified, experienced and capable as appropriate of performing competently the work or jobs for which they are employed.
5.4 The Supplier will ensure that the Services are and will remain throughout the period of this Agreement at the agreed standard, and the Services will be clean, in full working order and safe for occupation and use by Customers, employees, agents and representatives, and all other third parties.
5.5 The Supplier undertakes to inform the Company in writing immediately of any building, maintenance work or other activity in the property, resort or surroundings such as may adversely affect the enjoyment of the Customers of the Services. In the event of any planned refurbishment, the Supplier must notify the Company immediately, giving a minimum of 30 days’ notice. In the event of the Supplier not observing the 30 day notice period, or the Services not being ready to accommodate Customers at the agreed start date, the Company reserves the right to terminate the Agreement (without prejudice to any rights which may have accrued under the Agreement) debiting any financial loss incurred as a consequence to the Supplier.
5.6 The Supplier certifies that the Services conform to all applicable planning, licensing and other requirements as may be imposed on it by national, local or other laws or regulations. The Supplier certifies that the Services comply and will at all times comply during the validity of this Agreement with national and trade laws, regulations and codes of practice, relating to hygiene, fire, the general safety and security of those on the premises, or in any other way affecting its operation.
5.7 Without prejudice to the generality of clause 5.5, the Supplier will ensure that where applicable: all fire exits are clearly marked and accessible with good emergency lighting: fire extinguishers are readily available on each floor and smoke alarms fitted; and all bedroom doors have printed instructions in English covering emergency procedures. The Supplier will ensure that any swimming pool filtration and cleaning systems provide good hygienic standards with bottom of the swimming pool clearly visible.
5.8 Where meals are provided as part of the Services, they must in the opinion of the Company and Customers be of very good quality and sufficiently varied. Where meals served are from a fixed menu then, unless otherwise agreed a choice of main course should be offered without supplement to Customers. Where any Customers have special dietary requests including allergens, the Supplier will take all reasonable steps to meet such requests and, if this is not possible, will inform the Company within one week of receipt of the request.
5.9 The Supplier shall permit the Company’s representatives to inspect the Services at any reasonable time on request.
5.10 The Supplier shall not act or make any omission or otherwise do anything which in the Company’s opinion causes (or is likely to cause) damage to and/prejudice the Company’s good name, commercial interests and/or reputation including any of the Company’s other brands.
5.11 The Supplier will not ask a Customer to sign any form of waiver for any part of the Services or otherwise to exclude liability for anything which the Supplier may otherwise be liable for.
5.12 The Supplier shall provide the Company with correct and up to date information regarding the Services and warrants that such information is complete and not misleading. The prices of the Services shall include all taxes and the Supplier shall not alter the price of the Services once a booking has been confirmed, unless otherwise agreed between the parties in writing.
5.13 The Supplier accepts that failure to comply with the above may result in the suspension or revocation of all payments under this Agreement and/or the termination of this Agreement without any liability to the Company and without prejudice to any other agreement or contract between the parties.
5.14 The Supplier agrees to follow recognised industry best practice in respect of health and safety and keep the Services free of hazards that cause or are likely to cause harm. This shall include the maintenance of adequate Hazard Analysis Critical Control Points procedures and appropriate records of the same. The Supplier will notify the Company as soon as the Supplier becomes aware of any health and safety hazards or issues which may impact the Services.
5.15 The Supplier shall, on request, promptly complete any audit or assessment as required by the Company for any purpose including, but not limited to, the assessment of health and safety risks.
5.16 In relation to the disclosure of rates and/or tariffs regarding the Services pursuant to this Agreement, the Supplier shall:
5.17 If requested by the Company, the Supplier shall comply with the Company’s standards and policies provided the Company notifies the Supplier of them in writing. The Supplier acknowledges that the Company has a commitment to sustainable development and the Supplier commits to making reasonable endeavours to comply with the Company’s sustainability policies and to develop your own sustainability strategy.
6.1 The Supplier shall deal sympathetically, efficiently and politely with all requests and complaints made by any Customers and shall use their best endeavours to remedy promptly any dissatisfaction expressed by any Customer without cost to the Company. The Company must be notified immediately of any such complaints, and where requested to do so, the Supplier shall provide all assistance the Company may require to enable it to deal with complaints or other problems encountered by any of its Customers. For avoidance of doubt but not limitation this clause applies to all requests, complaints and problems relating to the Services whether raised before, during or after use of the Services.
6.2 In the event the Company receives any complaint from a Customer concerning the Services, and particularly in the event of a personal injury sustained, the Supplier will, at the request of the Company and promptly (within 3 days of the complaint) at the Supplier’s cost, give all assistance requested by the Company including but not limited to, providing documents, providing detailed written statements from relevant employees, sub-contractors or agents and holding any employee, sub-contractor or agent available to give evidence.
6.3 If requested by the Company, the Supplier will not correspond directly with the Customer who has complained.
7.1 The Company shall be entitled to release the Services or any part of them by notice in writing to the Supplier without incurring any penalty, charge or liability whatsoever providing the Company does so on or before any release date(s) applicable to the Services in question as agreed between the parties in writing.
7.2 After the said applicable release date(s), the Company shall be entitled to cancel the Services or any part of them by giving the Supplier notice in writing and subject to payment of the cancellation charges agreed between the parties in writing.
7.3 In the event that the Customer cancel their booking for the Services with the Supplier directly or the Customer does not show up, the Supplier shall notify the Company in writing as soon as possible (and in any event no later than 10.00am on the day following the cancellation or non-attendance).
8.1 The Supplier will notify the Company in writing of any alteration, suspension, deficiency, failure or other change of any nature whatsoever in respect of any part of the Services (including any change in the official classification of any of the Services), whether temporary or otherwise, within 48 hours of the problem occurring whether or not it is continuing. The Supplier undertakes to take all reasonable steps to remedy the problem immediately and restore the Services to those originally agreed, and shall be solely responsible for bearing the full amount of any costs incurred in doing so.
8.2 If any reservation option or request cannot be honoured, the Supplier will notify the Company immediately and comply with the Company’s requests and instructions concerning alternative services. Unless otherwise advised by the Company, the Supplier must locate replacement services for Customers of at least equal standards with similar services, facilities and location (any additional costs must be borne by the Supplier).
8.3 If the alternative services are not deemed acceptable by the Customer and the Customer wishes to cancel, the Supplier will refund all monies paid by the Company and pay compensation to the Company in accordance with the indemnity under Clause 9 of this agreement.
9.1 For the purposes of this clause 9 “Supplier Party” shall mean each of the following
9.2 The parties agree that the indemnity contained within this clause 9 shall expressly cover the actions and omissions of each Supplier Party irrespective as to whether the Supplier itself was at fault or in breach of its obligations under this Agreement or any applicable governing laws, standards or regulations.
9.3 Without prejudice to any other provision in this Agreement, the Supplier hereby agrees to indemnify the Company for the full amount of all damages, expenses, losses, compensation, demands, actions, liabilities, fines costs (including legal costs) and/or any other sum of whatever nature which, for any reason whatsoever, the Company incurs or pays to any Customers, employees, agents and/or representatives and/or any third party (including own legal costs) or authority (whether pursuant to any Court Order or by way of any settlement which the Company, acting reasonably in all the circumstances including the costs, risks and time involved in fighting any claim, agrees to pay or otherwise), as a result directly or indirectly in whole or part of:
9.4 This indemnity shall survive termination (for any reason) or expiry of this Agreement.
10.1 The Supplier shall at all times maintain a comprehensive insurance policy or policies. in an appropriate sum to cover all risks relating to or arising out of the performance of this Agreement and the Services normally covered by insurance including by way of example and not by way of limitation:
10.2 The Supplier shall on demand provide a copy of all insurance policies and schedules to the same to the Company together with a copy of the receipt for the payment of the current premium. The Company will not check the policy documentation for suitability and it remains the responsibility of the Supplier to ensure that they are adequately insured at all times. The Supplier shall forward any renewal documents to the Company within 5 working days of renewal.
11.1 Either party shall be entitled at any time to terminate this Agreement without penalty on the happening of any of the following events:
11.2 The Company shall be entitled at any time to terminate this Agreement with immediate effect and without penalty on giving the Supplier written notice of terminate of this Agreement in the event the Supplier becomes insolvent or is unable or unwilling to pay any of its valid debts as they fall due or suspending or ceasing or threatening to suspend or cease to carry on its business (other than for the purpose of reconstructions, reorganisation or amalgamation without insolvency.
11.3 The exercise of the rights under this clause by the parties shall not affect the rights and obligations of the parties which have accrued or are in existence prior to that party exercising those rights.
11.4 Entirely at the Company’s sole discretion, if this Agreement is terminated for any reason (save for termination pursuant to clause 11.1(c), the termination shall not apply in relation to bookings made before the effective date of termination (regardless of whether the bookings are due to commence after the effective date of termination) and the rights and obligations of the parties under this Agreement in respect of such bookings shall survive the termination and be enforceable notwithstanding it.
12.1 The Company at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under these Conditions, provided that the Company gives prior written notice of such dealing to the Supplier.
13.1 In the event of any change of ownership of the business of the Supplier, The Supplier shall notify the Company of this immediately and shall, with the Company’s prior consent, transfer its obligations under this Agreement to the new owner. In the event the Company does not consent to the transfer, the Company shall be entitled to terminate the Agreement without liability.
14.1 The Supplier and Company shall be excused from performance of their respective obligations under this Agreement where circumstances amounting to "force majeure" occur for as long as such circumstances last and affect contractual performance.
14.2 For the purposes of this Agreement, "force majeure" shall mean unavoidable and extraordinary circumstances beyond the control of the party seeking to rely on them including, without limitation:
14.3 For the purposes of this Agreement, “force majeure” shall not include any fault or delay by the Supplier’s sub-contractors other than as a result of force majeure affecting them.
14.4 The Company shall be entitled at any time whilst "force majeure" continues, in the Company's opinion, to affect the present or future interests of the Company or Customers to withhold any payments otherwise due to the Supplier and/or defer the date for payment for the Services and/or cancel any Services and/or terminate this Agreement with immediate effect without incurring any penalty, charge or liability whatsoever. Furthermore, where the Force Majeure results in the Supplier being unable to supply the Services which have been booked and paid for by Customers, the Supplier agrees to refund to the Company in full all monies received by the Supplier in relation to the affected booking(s).
15.1 This Agreement shall constitute the entire agreement between the Company and the Supplier and any other terms, conditions, performance criteria, guarantees or prior representations whatsoever (whether written or oral) shall be of no effect unless expressly incorporated herein. Each party acknowledges that it has not entered into this Agreement in reliance on any statement or representation of the other parties except to the extent that such statement or representation has been incorporated in this Agreement. Nothing in this Agreement shall limit or exclude either party’s liability for fraud or fraudulent misrepresentation.
16.1 No variation of this Agreement shall be effective unless agreed in writing by the Company.
17.1 This Agreement shall not operate so as to create a partnership or joint venture of any kind between the parties. Nothing contained in this Agreement shall be so construed as to constitute either party to be the agent of the other. Neither party shall have any authority to make any commitments on the other party’s behalf.
18.1 Each party undertakes to the other that during the term of this Agreement and thereafter it shall keep secret and shall not without the prior written consent of the other party disclose to any third party (except to its legal and professional advisors) any Confidential Information learned by the recipient party or disclosed to the recipient party by such other party pursuant to or otherwise in connection with this Agreement.
18.2 The obligations of confidentiality in this clause 17 shall not extend to any information or matter which either party can show:
18.3 Without prejudice to any other rights or remedies of the disclosing party, the recipient party acknowledges and agrees that damages may not be an adequate remedy for any breach by it of the provisions of the Agreement and that the disclosing party may be entitled to seek the remedies of injunction, specific performance and other equitable relief from a court of competent jurisdiction for any threatened or actual breach of any such provision by the recipient party, and no proof of special damages shall be necessary for the enforcement of the rights under the Agreement.
19.1 This Agreement shall be construed, and any dispute between parties determined, under the laws of Scotland. Disputes shall be subject to the exclusive jurisdiction of the Courts of Scotland.
19.2 If any provision in this Agreement should be held illegal or unenforceable by a Court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect.
20.1 The parties agree to comply with the Data Processing Clauses at Schedule 1 of this Agreement, which is hereby incorporated into this Agreement.
21.1 The Supplier agrees, in respect of the provision of the Services, the Supplier shall comply (and shall procure that its employees, agents, subcontractors and suppliers comply) with all applicable laws, rules and regulations and codes of practice, including but not limited to the Modern Slavery Act 2015 and the Bribery Act 2010.
21.2 Anti-Bribery Obligations: The Supplier shall not (directly or indirectly) pay, offer, give or promise to pay or authorise the payment of, any portion of the compensation or reimbursements received hereunder or any other monies or other things of value to an officer or employee of a government or any department, agency, or instrumentality or public international organisation; any political party or official thereof; any candidate for political office; any sub-contractor or supplier, or any other person at the suggestion, request or direction or for the benefit of any of the above-described persons and entities for purposes of influencing official actions or decisions or securing any improper advantage in order to obtain or retain business, or engage in acts or transactions otherwise in violation of any applicable anti-bribery legislation including but not limited to the Bribery Act 2010 and similar multilateral anti-bribery agreements.
21.3 Anti-Slavery Obligations:In performing its obligations under the Agreement, the Supplier shall:
21.4 The Supplier represents and warrants that at the date of this Agreement, neither the Supplier nor any of its officers, employees or other persons associated with it:
21.5 The Supplier shall implement due diligence procedures for its subcontractors and suppliers and other participants in its supply chains, to ensure that there is no slavery or human trafficking in its supply chains.
21.6 The Supplier shall indemnify the Company against any losses, liabilities, damages, costs (including but not limited to legal fees) and expenses incurred by or awarded against, the Company as a result of any breach by the Supplier of this clause 20.
22.1 The Supplier confirms that it owns all intellectual property rights in or otherwise has the legal right to use all information and material it supplies to the Company for the purposes of this Agreement (including for the avoidance of doubt and without limitation, all names, logos, text, photographs, video and images of any nature).
22.2 The Company shall be licensed to use the Supplier’s logos, trademarks and descriptions of the Services in connection with the Services and for the duration of this Agreement.
22.3 In the event of any claim being made, objection being raised or issue of any nature whatsoever arising in respect any information and/or material supplied to the Company by or on behalf of the Supplier (and irrespective of the merits of any such claim, objection or issue or whether or not the Supplier is at fault in any respect), the Supplier agrees to indemnify and keep the Company indemnified for and in respect of all liabilities, claims, expenses, costs (including the Company’s legal costs on a full indemnity basis), damages, losses and all other sums of whatever nature which the Company incurs or suffers as a result.
SCHEDULE 1
DATA PROCESSING CLAUSES
DEFINITIONS:
1.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Schedule 1 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
1.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Company is the Data Controller and the Supplier is the Data Processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). Annex 1 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of Personal Data and categories of Data Subject (where Personal Data and Data Subject have the meanings as defined in the Data Protection Legislation).
1.3 The Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Agreement, process that Personal Data only for the purposes of providing the Services and complying with its obligations under the Agreement.
2.1 The Supplier shall not permit any processing of Personal Data by any agent or subcontractor or other third party (“Sub-Processor”) without the prior written authorisation of the Company.
2.2 In the event the Company gives authorisation to the Supplier for the appointment of a Sub-Processor in accordance with clause 2.1, such authorisation will always be contingent on and subject to the Supplier entering into a written agreement with the Sub-Processor incorporating terms which are substantially similar to those set out in this Schedule 1.
2.3 As between the Company and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any Sub-Processor appointed by it pursuant to this clause 2.
3.1 The Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Agreement ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Personal Data and against accidental loss or destruction of, or damage to, the Personal Data.
3.2 Those measures may include, where appropriate:
3.3 The Supplier shall provide to the Company at any time on request a detailed written description of such technical and organisational measures in place.
4.1 The Supplier shall ensure that access to Personal Data is limited to its personnel and authorised Sub-Processors who need access to it to supply the Services, and that all personnel and authorised Sub-Processors are:
4.2 As between the Company and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any personnel and authorised Sub-Processors.
5.1 The Supplier may only process, or permit the processing, of Personal Data outside the UK under the following conditions:
6.1 The Supplier shall on request at any time and on the expiry or termination of the Agreement, (at no cost to the Company) at the Company’s option either return all of the Personal Data, and copies of it in such format as the Company may require or securely dispose of the Personal Data, except to the extent that any applicable law requires the Supplier to store such Personal Data and the Supplier has promptly demonstrated their legal requirements to the Company.
7.1 The Supplier shall immediately (and in any event within 2 calendar days) and fully notify the Company in writing if any Personal Data has been disclosed in breach of this Schedule or if it is lost, becomes corrupted, is damaged or is deleted in error.
7.2 The Supplier shall notify the Company immediately if it suspects or becomes aware of any actual, threatened or potential breach of security of Personal Data and any personal data breach (as defined in Data Protection Legislation) and shall ensure all such notices include full and complete details relating to such breach, in particular:
8.1 The Supplier shall promptly provide such information and assistance (at no cost to the Company) as the Company may require in relation to any request from or on behalf of any Data Subject for access, rectification or erasure of their Personal Data, or any complaint, objection to processing, or other correspondence. In no event shall the Supplier respond directly to any such request, complaint or correspondence without the Company’s prior written consent unless and to the extent required by law.
8.2 The Supplier shall promptly provide such information and assistance (at no cost to the Company) as the Company may require in relation to:
8.3 The Supplier shall permit the Company (and any of its authorised representatives) and the Information Commissioner (or its authorised representatives), at the Supplier’s cost, access to any of the Supplier’s premises, personnel, IT systems and relevant records as may be reasonably required by the Company upon reasonable notice at any time for the purposes of conducting an audit in order to verify the Supplier’s compliance with this Schedule 1 and Data Protection Legislation.
8.4 The Supplier shall, on demand, provide the Company and the Information Commissioner (and/or their authorised representatives) with all reasonable co-operation, access and assistance in relation to each audit.
8.5 In the Supplier’s reasonable opinion, to the extent that it believes that any instruction received by it is likely to infringe the Data Protection Legislation or any other applicable law, the Supplier shall promptly inform the Company.
9.1 Supplier shall indemnify the Company against: (i) all losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, expenses, demands and legal and other professional costs (calculated on a full indemnity basis) arising out of or in connection with any breach by the Supplier and/or any Sub-Processor (as applicable) of this Schedule 1 including where the Supplier’s breach then places the Company in breach or subject to regulatory action, which the parties agree is foreseeable and a direct loss; and (ii) all amounts paid or payable by the Company to a third party which would not have been paid or payable if the Supplier’s breach of this Schedule 1 had not occurred, including in both cases where the Supplier’s breach then places the Company in breach or subject to regulatory action, which the parties agree is foreseeable and a direct loss.
10.1 Either party may, at any time on not less than 30 days’ notice, revise this Schedule 1 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
ANNEX 1
Description of Processing
The processing of personal data is as follows (provide a description of the subject matter and nature of the processing, including any systems used to store and process personal data, obligations of the Supplier and any rights of the Company in regards to the personal data):
Data subjects
The personal data concern the following categories of data subjects (please specify):
Purposes of the processing
The processing is necessary for the following purposes (please specify):
Categories of data
The personal data processed fall within the following categories of data (please specify):
Sensitive data (if appropriate)
The personal data processed fall within the following categories of sensitive data (please specify):
Instructions with regards to the processing of personal data:
The Supplier shall process the Personal Data only in accordance with the instructions of the Company.