These Terms of Business set out the basis upon which we, OTT Group Limited (“OTT”), will provide certain online travel training services to you, the client, as named in your Order Form (“Client”):
1.1 In these Terms of Business (which prevail over any other terms put forward by the Client) the following words and expressions have the following meanings unless the context requires otherwise:
Agreement means these Terms of Business including any Schedules together with the Order Form, and any other document(s) to the extent that they are expressly incorporated as part of the agreed arrangements, as amended from time to time as provided for below;
Client Deliverables means any and all training, branding, marketing and other materials which the Client provides for use in relation to the Services, including the timelines for them,and the Client’s other obligations under this Agreement;
Client Site means the online travel training content management system accessed through the portal element of the Website, which is created and hosted for the Client by OTT as part of the Services;
Confidential Informationmeans all information designated as confidential or otherwise of a confidential nature which a party (the “Disclosing Party”) provides to the other party (the “Receiving Party”) including details of the Services, pricing and Fees, the terms of this Agreement and trade secrets, but excluding any information that: (a) is or becomes publicly available, except by breach of this Agreement; (b) is disclosed to the Receiving Party by a third party and the Receiving Party reasonably believes the third party is legally entitled to disclose it; (c) was known to the Receiving Party without restriction prior to its receipt from the Disclosing Party; (d) is disclosed with the Disclosing Party’s prior written consent; (e) is independently developed by the Receiving Party without reference to the Disclosing Party’s confidential information; and/or (f) is required to be disclosed by the Receiving Party by order of the court, the rules or recommendations of any applicable stock exchange or other legal process or applicable professional standard;
Fees mean all OTT’s fees and charges under this Agreement including those detailed in the Order Form;
IP means trade and service marks, inventions, patents, designs, copyrights, database rights, know-how and trade secrets, all rights and interests in or licences to use any of them and any other right or interest generally recognised anywhere in the world, now or in the future, as intellectual property;
Marketing Services means any marketing services (eg advertisements, links and prizes) forming part of the Services as detailed in an Order Form or otherwise mutually agreed in writing;
Order Form means the Client’s order form in respect of the Services;
Services means the online travel training services and any Marketing Services to be created/hosted/provided (as the case may be) under this Agreement as identified in the Order Form, as those services may be altered and/or added to either by mutual written agreement or as provided for elsewhere in this Agreement;
Service Documentation means the guides, brochures and policies provided by OTT in respect of the services from time to time including the Fair Usage policy;
Term means the period of time during which this Agreement remains in force;
Website means OTT’s international online travel training website currently located at:www.onlinetraveltraining.com and includes any replacement(s) for it; and
Working Hours means 9am to 5.30pm UK time every day except Saturdays, Sundays and days which are public holidays in London, UK.
1.2 In interpreting this Agreement: (a) any reference to “includes”, “including” or derivatives of them means “including but not limited to”; (b) the singular includes the plural and vice versa; and (c) unless otherwise specified, monetary amounts are in GBP and are stated exclusive of applicable taxes.
This Agreement commences on the receipt by OTT of the Order Form signed by the Client (the “Effective Date”) and: (a) continues until the first anniversary of whichever is the earlier of the launch of the Client Site and the date falling 90 days after the Effective Date; and (b) will then automatically continue beyond that anniversary for additional 12 month periods (commencing on anniversaries of the Effective Date), unless and until terminatedin accordance with clause 12.
3 OTT’s obligations
3.1 OTT will:
3.1.1 implement and provide the Services during the Term in accordance with the terms of this Agreement;
3.1.2 if required as part of the Services, provide the Client with access to a secure, private administration area on the Website to enable the Client to change/alter any of the editable regions of the training template which OTT is hosting as part of the Client Site;
3.1.3 provide the Services with reasonable care and skill of the sort that might reasonably be expected of a provider of services equivalent to the Services;
3.1.4 be excused late, incorrect or non-performance of Services and any breach of this Agreement to the extent that the same is/are caused by the Client’s breach of contract and/or failure to provide/comply with the Client Deliverables, and any OTT time estimates will be extended by an amount equivalent to any delay on the Client’s part; and
3.1.5 answer Client calls and queries relating to the Services during Working Hours.
3.2 OTT does not warrant or guarantee that the Services will be continuous, virus free or fault free and, from time to time, the Services may not be available due to planned maintenance, updates or other outages. OTT will endeavour to keep any such outages to a minimum and will provide the Client with advance notice of outages where reasonably possible.
3.3 If time estimates are given for performance of any part(s) of the Services, OTT will endeavour to meet them, but time is not of the essence.
3.4 OTT reserves the right to:
(i) suspend the Services in whole or part (without prejudice to any other rights it may have under this Agreement) if in OTT’s reasonable good faith opinion: (a) the Client is in breach of this Agreement; and/or (b) it is required to do so as a result of an order, instruction or request from a competent authority or body; and/or (c) in connection with any technical issue, modification to or maintenance of the Services (in which case it will reinstate the Service as soon as reasonably practicable); and
(ii) change and update the Website from time to time.
4 The Client’s obligations and related matters
4.1 The Client will:
4.1.1 use the Services only for the Client’s own lawful internal business purposes and as set out in this Agreement;
4.1.2 comply with the Service Documentation and any other Service user manuals, operational procedures, policies, guidelines, brochures (including updates to them) and reasonable instructions, provided by OTT from time to time, and the Client acknowledges that any links from the Client Site/Website to third party sites are not within OTT’s control and accordingly OTT has no liability to the Client in respect of them;
4.1.3 not directly or indirectly license, rent, host, time-share, re-sell, distribute, provide or otherwise allow access to the Services (either alone or bundled or associated with any other service or technology) to any third party - this Agreement is personal to the Client;
4.1.4 ensure that it keeps confidential any user identifications and passwords needed to access and use the Services and notify OTT immediately of any suspected breach of confidentiality or security;
4.1.5 not remove, relocate, modify, reverse engineer, reverse assemble, copy, reproduce, damage, destroy or interfere with the Services or any modifications or enhancements to or proprietary markings on them (or allow any third party to do the same), without the prior written consent of OTT;
4.1.6 nominate an employee to act as the single point of contact between OTT and the Client regarding day-to-day use of the Services and any questions arising;
4.1.7 at its own cost, co-operate reasonably and on a timely basis with OTT in relation to the set-up and ongoing provision of the Services including attending meetings and telephone calls as required, and timely providing approvals and other Client Deliverables required for the Services and timely uploading content into the training template on the Client Site;
4.1.8 ensure the accuracy, validity and lawfulness of all Client Deliverables and have ultimate responsibility for (and sign off prior to live use) all copy and all advertisements, marketing materials and competitions to be featured on the Website and/or the Client Site and any translations of any of them out of the English language - all these matters and materials are the Client’s risk and responsibility;
4.1.9 display and/or update OTT’s logo and/or accreditation (in the form provided by OTT from time to time) on the training template(s) on the Client Site;
4.1.10 at its own expense retain duplicate copies of all Client Deliverables - OTT will have no liability for any loss or damage to them, however caused;
4.1.11 immediately inform OTT if it considers that any marketing/advertising material to be used in the Services is false, misleading or in any way contrary to law or to any applicable advertising regulation; and
4.1.12 utilise any advertising/marketing inventory which it is buying as part of the Services by the date specified for it in the Order Form (or otherwise agreed in writing with OTT) – any inventory which is not used by the stipulated date will (at OTT’s option) either be forfeit or may be charged at a higher rate than originally quoted.
4.2 If: (i) the Client has not given, obtained, provided or made the necessary authorisations, agreements, materials and arrangements as set out in this clause 4 and, as a result, requests assistance or input from OTT in relation to any resultant issues; and/or (ii) the Client’s acts or omissions result in additional maintenance or other work being required, OTT reserves the right to charge the Client for its costs and expenses arising, and for its time so spent at its then prevailing rates.
4.3 As regards any marketing and advertising forming part of the Services, the Client acknowledges and agrees that whilst OTT will use reasonable endeavours to ensure the accuracy of all estimated and target figures relating to the number, proportion or type of people likely to be exposed to any marketing/advertising campaign, these are matters which are ultimately beyond OTT’s control, and so no warranties are given nor liability accepted by OTT as to their accuracy nor to the ultimate effectiveness of any such campaign.
4.4 The Client warrants that it has the authority and ability to enter into and perform its obligations under this Agreement.
5.1 In consideration of the provision of the Services by OTT, the Client will pay the Fees without deduction or set off of any sort within thirty (30) days of the invoice date. Unless otherwise agreed, all Fees will be invoiced by OTT in advance.
5.2 In addition to (and at the same time and in the same manner as) the Fees, the Client shall pay VAT or equivalent sales taxes (if applicable) and all other taxes and duties of any sort, amounts in lieu thereof, and interest and penalties thereon, paid, payable or collectable by OTT which are from time to time levied or based on Fees during the Term, but exclusive of: (i) any such interest and penalties which arise as a result of default on the part of OTT; and (ii) taxes based on OTT’s net income.
5.3 If any Fees are or may be subject to applicable withholding tax and the Client is required to deduct such tax from such payments, the parties will liaise promptly and in good faith and use all reasonable endeavours to avail themselves of an applicable tax treaty in order to gain an advance exemption from or reduction in withholdings. To the extent that the Client is nevertheless required to withhold, the Client will promptly deliver to OTT receipts and certificates from appropriate government authorities for all such taxes withheld or paid by the Client and the Client will reasonably and promptly cooperate with OTT to provide such information and records as OTT may reasonably require in connection with any application by OTT to obtain any available tax refunds and/or credits.
5.4 OTT reserves the right to: (i) increase any/all of its Fees with effect from each 12 month anniversary of the Effective Date (unless both parties agree in writing to an alternative review date) by giving the Client not less than 90 days’ prior notice; and (ii) withdraw any discounts granted to the Client and charge all Fees at the full undiscounted rate (without prejudice to any rights and remedies which OTT may otherwise have) if the Client: fails to pay Fees on a timely basis; fails to meet its obligations regarding Client Deliverables; or is otherwise in breach of this Agreement.
5.5 Without limiting its other rights or remedies, OTT may delay go-live of the Client Site and/or suspend the Service if payment is not timely received.
5.6 Late payments will to the extent permitted by law accrue interest on a daily basis at the rate of 4% above the Bank of England base rate from time to time in force or such higher rate as may be prescribed under the Late Payment of Commercial Debts (Interest) Act 1998 from the due date until the date of payment, both before and after judgment.
6 Intellectual Property
6.1 Any IP in Client Deliverables including Client branding (if applicable) and any other information or material provided to OTT by or on behalf of the Client which is required for the performance by OTT of its obligations under this Agreement (collectively, “Client-Provided IP”) is hereby licensed to OTT on a non-exclusive, royalty-free basis for the purpose of fulfilling OTT’s obligations under this Agreement.
6.2 If it is mutually agreed that OTT is to use Client-Provided IP to create training courses, copy, content or marketing materials as part of the Services, the resultant work (“Client-Specific IP”) will be owned by the Client (but not, for the avoidance of doubt, the training template(s) on the Client Site into which the Client-Specific IP is loaded, the OTT systems and code used to host and display them, nor any generic non-Client-specific material included in that work, such as general text and stock photos, images etc). OTT hereby assigns all Client-Specific IP to the Client by way of a present assignment of future rights.
6.3 The parties agree that, as between them:
(a) OTT owns all IP in all aspects and elements of the Service including its software and training templates, the Website, domain name(s), methodologies and documentation associated with the Service, its user interface and all Service content, branding and look and feel (excluding only Client-Provided IP and Client-Specific IP (collectively, “Client IP”)) and any and all modifications, configurations, customisations and enhancements of any sort made at any time (collectively “OTT IP”); and
(b) the Client is granted a non-exclusive, non-transferrable licence in respect of OTT IP during the Term solely and to the extent necessary in order to access and use the Services in accordance with the terms of this Agreement; and
(b) all other IP developed, provided or created by or on behalf of OTT from time to time, will remain the property of OTT regardless of whether it is in original form or in a form modified or enhanced for the Client’s use; and
(c) the Client owns all Client IP; and
(d) the contents of OTT’s database of Website registered members (including for the avoidance of doubt learner/course registration/course completion information and data) remain the sole property of OTT and may not be used or forwarded to any third party without OTT’s prior written consent.
6.4 For clarity, whilst the Client is free to use, host and display the training materials it provides to OTT and other Client IP as it sees fit, it may not utilise OTT’s training template (in whole or in part) to do so except as permitted in this Agreement during the Term as part of the Services, and not further or otherwise.
6.5 The Client hereby grants OTT a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual licence to use and/or incorporate into its services/systems/software any suggestions, enhancement requests, recommendations, improvements or other feedback provided by the Client relating in any way to the Service and/or any aspects(s) of it, including its related documentation.
6.6 Both parties agree to execute and do and procure the execution and doing of all such documents, acts and things as may be reasonably necessary to give full force and effect to the provisions of this clause 6.
7 Confidential Information and Publicity
7.1 Each party undertakes that: (a) to the extent it comes into possession of the other party’s Confidential Information in connection with this Agreement, it will use that Confidential Information solely for the purposes of this Agreement, and will not use itfor its own benefit nor disclose it to any third party without the other party’s prior written consent, except that OTT may disclose Confidential Information to its service providers to allow it to provide the Service and to its professional advisers on terms of confidentiality equivalent to those set out herein; and (b) it shall carry out its obligations hereunder using the same degree of care that is uses in protecting its own proprietary information, but always with at least a reasonable degree of care.
7.2 Neither party may disclose that an agreement exists between the parties or otherwise publicise or make any media comment about the terms of this Agreement or use the other party’s name or logo in any publicity or advertising materials other than as specifically set out in this Agreement without the prior written approval of that other party (which will not be unreasonably withheld, qualified or delayed) except that: (a) OTT may use the Client’s name and logo to identify, and may otherwise refer to, the Client as a user of OTT’s services, provided that the Client’s name does not appear more prominently than any other user listed in like manner and the Client’s name and logo are not used so as to suggest any special endorsement of OTT’s services by the Client; and (b)the Client may freely disclose that an agreement exists between the parties once approval has been given as provided for above.
7.3 Nothing in this Agreement shall prevent OTT from using, disclosing and permitting the use and disclosure of de-personalised, non-Client identifiable aggregate and statistical data relating to the use by the Client and other OTT customers of OTT’s services.
8 Data, Privacy & Network Security
8.1 The Client warrants to OTT that: (a) any personal information which the Client discloses to OTT either directly or indirectly, (collectively, “Client Service Data”) will have been collected and disclosed in accordance with all applicable laws; and (b) the individuals to whom Client Service Data relate (whether the Client’s employees or otherwise) have been made aware of the identity of OTT and have given all consents necessary to enable OTT and its group members and service providers to receive, use, process, disclose and internationally transfer the Client Service Data in the provision of the Services.
8.2 Each party: (a) will comply with the provisions of the Data Protection Act 1998 (“DPA”) and will not do anything which may cause the other party to infringe the DPA; (b) warrants that it has made all registrations required of it under any applicable data protection legislation and in respect of any personal data processed by a party in connection with this Agreement; and (c) warrants that it has in place and will maintain throughout the Term appropriate technical and organisational measures against the accidental, unauthorised or unlawful processing, destruction, loss, damage, or disclosure of any personal data and adequate security programs and procedures to ensure that unauthorised persons do not have access to any equipment used to process such data.
8.3 The Client acknowledges that the Service is provided over the internet and is accordingly not a secure and confidential method of communication, and therefore the Client transmits and receives content and data (including text, images, data and other information) at its own risk.
9 Limitation of Liability
9.1 Subject to clause 9.4 and except as expressly provided in this Agreement, OTT excludes all warranties, whether express or implied, including warranties of merchantability, satisfactory quality and fitness for a particular purpose.
9.2 Subject to clause 9.4, in no event will the Client, OTT or their respective group members, affiliates, agents and subcontractors and their respective partners, principals, members, employees and other personnel be liable for any special, indirect, incidental, consequential or punitive damages, costs, expenses, damages or losses of any nature, including lost opportunities and/or data arising from or in connection with this Agreement or otherwise in relation to the Service, whether in contract, tort (including negligence), equity, for breach of statutory duty or otherwise.
9.3 Subject to clauses 9.2 and 9.4, the total aggregate liability of OTT, its group members, affiliates, agents and subcontractors and their respective partners, principals, members, employees and other personnel, to the Client for all loss suffered or liability incurred by the Client arising from or in connection with this Agreement or otherwise in relation to the Services, whether in contract, tort (including negligence), equity, for breach of statutory duty or otherwise arising in any 12 month period will be limited to a sum equivalent to the Fees paid and payable in respect of that period.
9.4 Nothing in this Agreement will exclude or limit a party’s liability: (a) for death or personal injury resulting from the negligence of that party; or (b) in respect of any fraud or any statements made fraudulently by or on behalf of that party; or (c) to the extent which it is otherwise prohibited from being excluded or limited by law.
The Client agrees to indemnify and hold harmless OTT, its group members and their respective officers, directors, principals, agents and employees from and against any lawsuits, claims, damages, costs, losses or liabilities (and actions or proceedings in respect thereof) which any of them suffer relating to or arising out of: (a) the Client’s breach of clauses 4.1.8 and/or 8.1; and/or (b) any unauthorised, illegal or improper use of the Services and/or information processed through it by or on behalf of the Client; and/or (c) any claim that any Client Deliverables (including translations of them) infringe any third party IP or are libellous, defamatory, obscene or inaccurate; and/or (d) the set-up, provision, delivery, amendment and execution of any advertising, marketing, incentive, gift or prize related to the Client’s training course(s).
11 Force Majeure
Neither party is liable to the other for any failure or delay in meeting an obligation under this Agreement (except for any obligation to pay money) if and to the extent that the failure or delay is caused by or results from an event beyond that party’s reasonable control.
12.1 Either party may terminate this Agreement at any time by giving to the other not less than 90 days’ notice in writing. If the Client exercises this right of termination any Fees paid up-front are non-refundable.
12.2 If the Client fails to pay any invoice for more than 10 days beyond its due date and OTT has brought this to the Client’s attention during that period, OTT may terminate this Agreement upon notice to the Client.
12.3 Either party may terminate this Agreement by notice to the other party at any time if that other party: (a) commits a material breach of this Agreement and, if the breach is capable of remedy, that other party fails to remedy the breach within 30 days of receipt of notice of the breach giving reasonable details of it; or (b) does or is reasonably likely to: (i) become insolvent; or (ii) make an assignment for the benefit of creditors; or (iii) have a receiver appointed for its assets; or (iv) cease to do business; or (v) have any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceeding under any bankruptcy or other law for the relief of debtors instituted by or against such party which is not discharged or stayed within 30 days after having been commenced.
12.4 On expiry or termination of this Agreement: (i) OTT will deactivate the Client Site and make no further use of Client IP; and (ii) the Client must cease all further use of the Service and immediately return to OTT all copies of the Service Documentation and any other property, OTT IP and Confidential Information of OTT; and (iii) if the termination was on notice by OTT for convenience (rather than the Client’s breach), OTT will give the Client a pro-rata rebate of any annual Fees which have been paid up-front; and (iv)I f the Client wishes to have its name and logos and other information removed from the Website within the 90 day notice period, an early termination fee of £245 plus VAT will be applied.
12.5 Termination or expiry of this Agreement shall be without prejudice to the parties’ accrued rights and remedies including in respect of:
(a) accrued Fees and unpaid invoices (which will remain payable by the Client); and
(b) the circumstances giving rise to termination, and the provisions of clauses 6, 7, 8, 9, 10, 11, 12.4, 12.5, 13 and 14 will survive expiry or termination however arising.
All notices under this agreement must be in writing and sent to the address of the recipient set out in the Order Form (or to such other address as the recipient may notify in writing). Any such notice may be delivered by hand, or by first class/premium service prepaid registered letter/recorded delivery, and will be deemed to have been served by hand, when delivered and if by one of the said postage methods, two (2) days after posting.
14.1 This Agreement is governed by and shall be construed in accordance with the laws of England and Wales. Both parties submit to the non-exclusive jurisdiction of the courts of England and Wales.
14.2 This Agreement shall not preclude or limit in any way the right of OTT and its group members and partners to provide services of any kind or nature whatsoever, including those that are the same or similar to the Services, to any person or entity as they in their sole discretion deem appropriate.
14.3 No delay or failure to exercise a right under this Agreement prevents the exercise of that or any other right on that or any other occasion.
14.4 The parties are independent contracting parties. Nothing in this Agreement is intended to make either of them a joint venturer, partner, agent or fiduciary of the other nor grant any rights to and, save as expressly provided for herein, is not intended to operate for the benefit of, third parties.
14.5 This Agreement contains the entire understanding of the parties about the subject matter referred to in this Agreement to the exclusion of all previous agreements, understandings, correspondence or commitments between the parties or any third parties purporting to represent them. Subject to clause 9.4(b), the Client acknowledges that in entering into this Agreement it has not relied on any representations made by OTT or any other entity, whether oral or written, that are not contained in this Agreement.
14.6 Any variation to this Agreement will only take effect if it is in writing and signed by both parties except that OTT reserves the right to make reasonable variations to this Agreement (to be notified in writing to the Client) if in its reasonable opinion it believes they are required as a result of the action(s) of any government, competent legal, administrative or regulatory body, or other third party.
14.7 OTT may: (a) use sub-contractors and other suppliers and service providers in relation to its provision of the Service but will nevertheless remain liable to the Client for the proper performance of the Service as provided for herein; and (b) upon notice to the Client, assign (in whole or in part) or novate this Agreement to another member of its group as part of a solvent corporate reorganisation/restructuring and the Client agrees to enter into such documentation as may be necessary to effect any such assignment/novation. Other than that, a party must not assign or sub-contract any of its rights, benefits or obligations under this Agreement without the prior written consent of the other party, which will not be unreasonably withheld.
14.8 If any term of this Agreement is unlawful or unenforceable, it will be severed from this Agreement to the extent that it is unlawful and unenforceable and the rest of this Agreement will remain in force.
14.9 Each party must comply with all applicable laws including those relating to anti-bribery and anti-money laundering.
14.10 Neither party will, without the prior written consent of the other, at any time during or for six months after the Term, solicit or entice away from that other party or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of that other party.
14.11 This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, will be an original, and all the counterparts together will constitute one and the same instrument.