PLEASE READ CAREFULLY BEFORE SIGNING UP TO THE CARTRAWLER SELF-SERVICE PARTNER PROGRAMME
This agreement (the “Agreement”) is a legal agreement between ETrawler t/a CarTrawler (Company No: 93433), a company registered under the laws of Ireland and with a registered address at Classon House, Dundrum Business Park, Dundrum Road, Dublin 14, Ireland (‘CarTrawler’) and you (“You”, “Your” and “Yourself” will be construed accordingly) for certain introductory services and the right to use the Ajax Booking Engine (as defined in clause 16 along with other defined terms).
CarTrawler licences the use of the Ajax Booking Engine to You on the basis of this Agreement. CarTrawler does not sell the Ajax Booking Engine to You. CarTrawler remains the owner of the Ajax Booking Engine at all times.
IMPORTANT NOTICE TO ALL USERS:
BY CLICKING ON THE “I AGREE” BOX BELOW YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT WHICH WILL BIND YOU AND YOUR EMPLOYEES (WHERE APPLICABLE). THE TERMS OF THIS AGREEMENT INCLUDE, IN PARTICULAR, COMMISSION AND PAYMENT TERMS (INCLUDING A 50:50 REVENUE SHARE) IN CLAUSE 3, AN AGREEMENT TERM OF 1 YEAR AND CARTRAWLER TERMINATION RIGHTS IN CLAUSE 4, CERTAIN REPRESENTATIONS AND WARRANTIES IN CLAUSE 6 AND CERTAIN LIMITATIONS ON LIABILITY IN CLAUSE 10.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT CARTRAWLER WILL NOT GRANT YOU A LICENCE TO USE THE AJAX BOOKING ENGINE AND YOU MUST DISCONTINUE THE SIGN UP PROCESS NOW.
You should print a copy of this Agreement for future reference.
1. Services and Licence: In consideration of You agreeing to abide by the terms of this Agreement, CarTrawler agrees to (i) provide You with certain introductory services (as set out in section 2 below) and (ii) grant You a personal, non-exclusive, non-sub-licensable, non-transferable, royalty-free worldwide right and licence to use the Ajax Booking Engine (and in connection therewith will provide to You an on-line user guide in order to facilitate Your use of the Ajax Booking Engine).
2. Relationship: You agree that You will market, and introduce customers to, the Ajax Booking Engine and the Transportation through Your Website(s) and CarTrawler will introduce these customers to the Transportation suppliers through the Ajax Booking Engine. CarTrawler will be Your exclusive provider of introductory and marketing services for Transportation. You agree that You will not during the term of this Agreement, promote any Transportation programme for customers with any Transportation supplier or any other provider of introductory and marketing services for Transportation. For the avoidance of doubt, and notwithstanding anything herein express or implied to the contrary, no right granted to You by CarTrawler will be exclusive, and nothing herein express or implied will prevent or restrict CarTrawler from exercising itself and/or granting to any third party any right that is identical or similar thereto and nothing contained herein, express or implied, will be construed as creating a joint venture, partnership or relationship of employment between the parties. Neither You nor any of Your employees or agents (where applicable) will make any statement, whether orally, in writing (including, without limitation, on a website) or otherwise, indicating or suggesting any such relationship exists.
3. Commission and Payments:
Commission: CarTrawler will pay commission to You in consideration for You agreeing to perform Your obligations under this Agreement (the “Commission”). The Commission will be calculated as fifty percent (50%) of the Net Revenue received by CarTrawler.
No Excess Insurance: Where CarTrawler’s preferred no excess insurance provider has a no excess insurance offering in a customer’s residency and the customer purchases a no excess insurance policy through Your Website(s), CarTrawler will pay You one Euro (€1.00) per insured day for the length of such insurance policy (“Insurance Commission”) in consideration of You agreeing to perform Your obligations under this Agreement.
Payment Processing: All payments will be processed by or on behalf of CarTrawler.
Payment Terms: You will invoice CarTrawler for all Commission and Insurance Commission earned in accordance with the relevant VAT legislation by the tenth (10th) working day after the end of each month. The invoices will show all details which are required to constitute a full VAT invoice. Each party will notify the other party immediately if it changes its VAT registration number, ceases to be VAT-registered or transfers its business as a going concern and the parties will enter into a new billing Agreement in the same terms in the event of any such changes. All payments to You in relation to pre-paid and part-paid Completed Bookings will be made monthly in arrears within thirty (30) working days of receipt of invoice. All payments to You in relation to post-paid Completed Bookings will be made monthly in arrears within thirty (30) working days of the end of the month in which full payment has been received by CarTrawler from the Transportation supplier. All payments to You by CarTrawler will be made in Euro. Monies will be paid directly into Your nominated bank account. However, if the Commission and Insurance Commission for any calendar month is less than €200, CarTrawler will hold the Commission and Insurance Commission until the total amount due to You is €200 or over and then will pay such amount into Your nominated bank account in the next calendar month. Upon termination of this Agreement, CarTrawler will pay You the balance owed to You within thirty (30) days of such termination. CarTrawler has the right to withhold payment in the event that it suspects You have breached this Agreement. Money owing to You but not yet paid to You does not accrue interest. Commission and Insurance Commission are exclusive of VAT.
4. Term and Termination: This Agreement will commence on the Effective Date and will expire one (1) year from the Effective Date (the “Initial Term”) unless terminated earlier by CarTrawler. After expiry of the Initial Term, the term will automatically renew each year for further fixed terms of one (1) year (each a “Renewal Term”) unless (i) You give written notice to CarTrawler not later than ninety (90) days in advance of the expiry of the Initial Term or where relevant the Renewal Term of Your intention to terminate this Agreement at the end of the Initial Term or where relevant the Renewal Term; or (ii) this Agreement is otherwise terminated pursuant to the terms of this Agreement.
CarTrawler may terminate this Agreement with immediate effect on notice to You and without any liability, remuneration, compensation or damages at any time if:
a. You commit any material breach of any of the provisions of this Agreement and in the case of a breach capable of remedy, You fail to remedy the same within fourteen (14) days after the receipt of a notice from CarTrawler giving full particulars of the breach and requiring it to be remedied;
b. You persistently breach the provisions of this Agreement; and/or
c. Your Website(s) contain(s) content which promotes sexually explicit materials, violence, discrimination based on sex, religion, nationality, disability, sexual orientation or age, or any illegal activities.
CarTrawler may also terminate this Agreement at any time on thirty (30) days’ written notice to You.
Upon any termination of this Agreement: (a) CarTrawler will continue to honour any Reservations that were made through the Ajax Booking Engine prior to such termination; (b) You will not be paid or be entitled to be paid any Commission and Insurance Commission in respect of Reservations occurring after the date of termination of this Agreement; (c) all rights granted to You under this Agreement will cease and You must cease all activities authorised by this Agreement and (d) You will immediately return to CarTrawler or delete all Data, Confidential Information and all other materials of whatever nature generated by or in Your possession in connection with or arising from the operation of this Agreement. Any termination of this Agreement howsoever caused will be without prejudice to (i) any rights and liabilities accrued prior to such termination and (ii) the continued operation of such provisions of this Agreement whose content or context requires survival beyond such termination.
5. Intellectual Property Ownership and Use:
a. You acknowledge that all Intellectual Property Rights and any other proprietary rights in the Ajax Booking Engine and the Data will at all times vest in and be the absolute property of CarTrawler or its licensors, as appropriate and that nothing in this Agreement will be deemed to give You any rights of any kind in any Intellectual Property Right belonging to CarTrawler.
b. You grant to CarTrawler for the term of this Agreement a non-exclusive, non-sub-licensable, non-transferable, royalty-free worldwide right and licence to use the Brands so far as is reasonably necessary to establish and maintain the hyperlinks between Your Website(s) and the Ajax Booking Engine and to otherwise enable CarTrawler to perform its obligations and exercise its rights under and in accordance with this Agreement.
6. Representations and Warranties
You represent and warrant to CarTrawler that:
a. You have full power and authority to execute and deliver this Agreement and to comply with the provisions of, and perform all Your obligations and exercise all of its rights under, this Agreement;
b. You have taken all necessary action to authorise the execution and delivery of this Agreement and this Agreement constitutes Your legal, valid and binding obligations enforceable against You in accordance with its terms, except as enforcement may be limited by any relevant bankruptcy, insolvency, administration or similar laws affecting creditors’ rights generally;
c. You have the full right to licence any Intellectual Property Rights that You licence to CarTrawler under this Agreement;
all consents, licences, approvals and authorisations required in connection with the entry into, performance, validity and enforceability of this Agreement have been obtained and are in full force and effect;
d. You will comply with all applicable laws in respect of the performance of its obligations and exercise of Your rights under this Agreement; and
e. You will, at all times, conduct Your business in a manner that will reflect favourably on CarTrawler’s business, good name and reputation and that You will not, by Yourself or with others, participate in any illegal, deceptive, misleading or unethical practices relating to the transactions described in this Agreement.
7. Your Responsibilities:
You will be solely responsible for:
a. the development, operation and maintenance of Your Website(s) and for all materials that appear on Your Website(s), other than the Ajax Booking Engine;
b. introducing customers to the Ajax Booking Engine through Your Website(s), maintaining the technical links with the Ajax Booking Engine and verifying their validity and ensuring that at all times during the term of this Agreement that the Ajax Booking Engine is live and available for customers to reserve Transportation on the Your Website(s);
c. ensuring the accuracy and appropriateness of materials and information relating to this Agreement that are posted by You on Your Website(s) or any other website (including but not limited to customer reviews which must always be linked to a customer Reservation reference) and ensuring that materials relating to this Agreement that are posted by You on any of Your Website(s) or any other websites (save for materials, information and prices relating to Transportation via the Ajax Booking Engine) do not violate or infringe any right (including, without limitation, any Intellectual Property Rights) of any third party and are not libellous, defamatory or otherwise illegal;
d. ensuring that You will only market and promote the rates as are provided to You by CarTrawler and will not alter them in any way and ensuring that if You query CarTrawler for content You will display any and all content returned by CarTrawler from such queries;
e. obtaining any licences, registrations, permits or approvals necessary or advisable for the promotion and marketing of the Ajax Booking Engine and complying with all local law concerning the promotion or marketing of the Ajax Booking Engine and any conditions binding on You in any such licenses, registrations, permits and approvals;
f. ensuring as far as reasonably possible that only genuine requests for the Transportation are made by users of Your Website(s) and taking appropriate action when notified by CarTrawler or otherwise becoming aware of the existence of screen scraping or any similar data aggregation process on Your Website(s) and ensuring that the customers unique IP address is sent to CarTrawler for each and every query made through the Ajax Booking Engine. You may not send Your own server’s IP address in place of the customer IP address for any reason;
g. notifying CarTrawler of all complaints and claims made by customers and any other parties in relation to the introductory and marketing services;
h. other than as expressly set out in this Agreement, ensuring it will not, without the prior written approval of CarTrawler, include any reference to the name of CarTrawler or CarTrawler’s services on: (i) Your Website(s), (ii) any product, (iii) any advertising, or (iv) any commercial material; and
i. ensuring that You do not commit any act of any fraud or dishonesty or acts in any manner which in the reasonable opinion of CarTrawler brings or is likely to bring You or CarTrawler into disrepute.
“Confidential Information” means all information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by CarTrawler to You whether before or after the date of this Agreement which ought reasonably to be regarded as confidential including, without limitation, information relating to CarTrawler’s products, services, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, market opportunities and business affairs and the fees and payment terms set out in this Agreement.
During the term of this Agreement and after termination or expiration of this Agreement for any reason, You agree that You:
a. will not use Confidential Information for a purpose other than the performance of Your obligations or exercise of Your rights under this Agreement;
b. will not disclose Confidential Information to a person except with the prior written consent of CarTrawler or in accordance with the provisions below; and
c. will make every effort to prevent the use or disclosure of Confidential Information.
During the term of this Agreement You may disclose Confidential Information to any of Your directors, other officers, employees or agents, (a “Recipient”) to the extent that disclosure is reasonably necessary for the purposes of this Agreement provided that You will ensure that a Recipient is made aware of and complies with Your obligations of confidentiality under this Agreement as if the Recipient was a party to this Agreement.
You may disclose Confidential Information if and to the extent that:
a. this is required by the law of any relevant jurisdiction or pursuant to an order of a court of competent jurisdiction;
b. this is required by any securities exchange or regulatory or governmental body to which You are subject, wherever situated, whether or not the requirement for information has the force of law;
c. the information is disclosed on a strictly confidential basis to Your professional advisers, auditors and bankers;
d. the information has come into the public domain through no fault of Yours;
e. the information was in Your possession before such disclosure by CarTrawler, as aforesaid; or
f. the information was obtained by You from a third party who was free to divulge same,
PROVIDED THAT any such information disclosed pursuant to paragraphs (a) and (b) will be disclosed only after notice to CarTrawler.
The obligations as to confidentiality will continue in force notwithstanding the termination or expiration of this Agreement.
9. Data Protection: You and CarTrawler will, in connection with the exercise of Your/its rights and the performance of Your/its obligations under this Agreement, comply with Data Protection Acts 1988 and 2003 and any other analogous legislation in any jurisdiction in which personal data is processed (together “Data Protection Law”).
CarTrawler acknowledges that in providing services under this Agreement CarTrawler may process personal data on Your behalf within the meaning of the Data Protection Law (such data being “Customer Data”). In such circumstances CarTrawler will:
a. only process such personal data in accordance with this Agreement and Your instructions;
b. maintain technical and organisational security measures sufficient to ensure its compliance with its obligations under Data Protection Law;
c. allow You to verify its compliance with the said requirements on reasonable notice and provide You with evidence of its compliance with the said requirements; and
d. notify You as soon as practicable in the event of any data security breach, actual or suspected, and provide You with such co-operation and assistance as may be required to mitigate against the effects of any such breach.
CarTrawler will not (other than expressly permitted under this Agreement or as otherwise permitted in advance in writing by You) use any information regarding customers that is acquired by CarTrawler in connection with this Agreement for any purpose other than in accordance with the terms and conditions of this Agreement and/or for the introduction of customers to the Transportation suppliers including but not limited to use in marketing emails sent to customers by CarTrawler on Your behalf.
10. Liability: You acknowledge that the Ajax Booking Engine has not been developed to meet Your individual requirements, and that it is therefore Your responsibility to ensure that the facilities and functions of the Ajax Booking Engine meet Your requirements. Save as otherwise set out in this Agreement, and to the fullest extent permissible by law, CarTrawler disclaims all warranties, conditions, representations, indemnities and guarantees with regard to the Ajax Booking Engine, Transportation and any related services provided or to be provided hereunder, whether express or implied, including, without limitation, warranties of non-infringement, merchantability, fitness for a particular purpose and that use of the Ajax Booking Engine will be uninterrupted or error free. CARTRAWLER EXCLUDES ALL LIABILITY TO YOU AND ANY OF YOUR AFFILIATES IN CONTRACT, NEGLIGENCE OR OTHER TORT, UNDER ANY LAW OR OTHERWISE HOWSOEVER ARISING FOR INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS, AND LOSS OR CORRUPTION OF DATA OR OTHER EQUIPMENT OR PROPERTY, LOSS OF BUSINESS REVENUE, LOSS OF PROFITS (WHETHER DIRECT OR INDIRECT), LOSS OF TIME, LOSS OF SAVINGS, FAILURE TO REALISE EXPECTED PROFITS OR SAVINGS AND ANY OTHER ECONOMIC LOSS OF ANY KIND, EVEN IF CARTRAWLER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES. CARTRAWLER’S TOTAL LIABILITY FOR LOSS OR DAMAGE OF ANY KIND NOT EXCLUDED BY THIS CLAUSE 10, HOWEVER CAUSED (WHETHER IN CONTRACT, NEGLIGENCE OR OTHER TORT, UNDER ANY LAW OR OTHERWISE HOWSOEVER) ARISING FROM OR IN RELATION TO THIS AGREEMENT IS LIMITED IN AGGREGATE TO THE TOTAL COMMISSION PAID BY CARTRAWLER TO YOU IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM ARISES. CARTRAWLER DISCLAIMS ANY LIABILITY ARISING FROM THE BREACH OR NON-COMPLIANCE BY YOU OF THE REQUIREMENTS OF THE PAYMENT CARD INDUSTRY DATA SECURITY STANDARDS (“PCI DSS”) (FOR MORE INFORMATION SEE WWW.PCISECURITYSTANDARDS.ORG). YOU WILL BE LIABLE FOR ALL FINES IMPOSED ON CARTRAWLER WHICH ARISE FROM YOUR NON-COMPLIANCE WITH OR BREACH OF ANY SECTION OF THE PCI DSS. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE CARTRAWLER’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY CARTRAWLER’S NEGLIGENCE, FRAUD, FRAUDULENT MISREPRESENTATION OR WILFUL DEFAULT.
11. Anti-Bribery: You will comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010 (“Relevant Requirements”) and will:
a. not receive or make any request or demand for any bribe, undue financial or other advantage of any kind in connection with the performance of this Agreement;
b. not provide any bribe or any undue financial or other advantage of any kind to any persons, whether public official or otherwise, in connection with the performance of this Agreement;
c. maintain in place throughout the term of this Agreement Your own policies and procedures, including, without limitation, adequate procedures under the UK Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate; and
d. promptly report to CarTrawler any request or demand for any undue financial or other advantage of any kind received by You in connection with the performance of this Agreement.
Breach of this Clause 11 will be deemed a material breach of this Agreement.
12. Assignment: CarTrawler may transfer its rights and obligations under this Agreement to another organisation but this will not affect Your rights or CarTrawler’s obligations under this Agreement. You may only transfer Your rights and/or Your obligations under this Licence to another person if CarTrawler provides prior .
13. Miscellaneous: Headings in this Agreement are for convenience and will not affect its interpretation. CarTrawler will not be liable to You for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its reasonable control (a “Force Majeure Event”) including, without limitation, any of the following: act of God, accident, war, fire, flood, explosion, cyber attack or civil commotion. If a Force Majeure Event occurs which affects the performance of CarTrawler’s obligations under this Agreement (i) its obligations under this Agreement will be suspended and the time for performance of its obligations will be extended for the duration of the Force Majeure Event and (ii) CarTrawler will use its reasonable endeavours to find a solution by which its obligations under this Agreement may be performed despite the Force Majeure Event. This Agreement is drafted in the English language, and if it is translated into any other language, the English language text will prevail. If CarTrawler fails to insist that You perform any of Your obligations under this Agreement, or if it does not enforce its rights against You, or if delays in doing so, that will not mean that it has waived its rights against You and will not mean that You do not have to comply with those obligations. If CarTrawler does waive a default by You, it does not mean that it will automatically waive any later default by You.
This Agreement supersedes all prior representations, arrangements, understandings and agreements between You and CarTrawler, whether written or oral, in relation to the subject matter and sets forth the entire, complete and exclusive agreement and understanding between You and CarTrawler relating to the subject-matter hereof. You acknowledge that, in entering this Agreement, You do not do so on the basis of, and do not rely on, any representation, warranty, statement or other provision (whether written or oral) except as expressly provided herein and that You will have no remedies in respect of any statement, representation, assurance or warranty that is not set out in this Agreement.
This Agreement may only be amended by agreement in writing signed by You and a representative of CarTrawler.
15. Applicable Law: This Agreement will be governed and construed in accordance with the laws of
Ireland and You and CarTrawler hereby submit to the exclusive jurisdiction of the Irish courts.
16. Definitions: In this Agreement unless the context requires otherwise:
“Actual Selling Price” means the rate at which Transportation is reserved by a customer through the Ajax Booking Engine;
“Affiliate” means in respect of You or CarTrawler, any company that controls, is controlled by, or is under common control with You or CarTrawler (as the case may be). An entity will be regarded as in control of another company or entity if it owns or directly or indirectly controls more than 50% of the voting rights of that company or entity;
“Ajax Booking Engine” means the off the shelf, white label, Internet booking engine developed by CarTrawler which enables end users to search for and book Transportation through the Internet;
“Chargeback” means the reversal of a prior outbound transfer of funds from the bank account or credit line of the customer;
“Brands” means the trade marks, trade names, brands, logos and other devices owned or used by You;
“Completed Booking” means a Reservation where the Transportation has been collected and paid for by or on behalf of the customer;
“Data” means all data (excluding personal data) provided by CarTrawler to You, including, without limitation, data contained in any reports;
“Effective Date” means the date upon which You receive an e-mail from CarTrawler (i) confirming that You are a “CarTrawler Partner” and (ii) providing You with access information for the Ajax Booking Engine;
“Intellectual Property Rights” means all intellectual property rights of whatever nature throughout the world including, without limitation patents, patentable rights, copyright, moral rights, performers’ rights, get-up, design rights, utility models, rights in domain names, trademarks (whether or not any of the foregoing are registered), trade names, rights in inventions, rights in data, database rights, rights in know-how and confidential information and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent and including all renewals, extensions, revivals and all accrued rights of action) and all rights to sue for infringement (past, existing and future) of any of the rights referred to above;
“Net Revenue” means the amount received by CarTrawler from a customer or Transportation supplier for a Completed Booking arising from a Reservation made through the Ajax Booking Engine less: (i) the amounts payable to the Transportation supplier; (ii) the amounts collected for sales, taxes, duties, and related handling charges; (iii) the Transaction Fee; (iv) Chargebacks; and, (v) optional extras paid at the Transportation supplier’s counter by customers;
“Reservation” means the reservation of the Transportation by a customer pursuant to an offer made by a customer to a Transportation supplier, through the Ajax Booking Engine, to reserve the Transportation which becomes a Reservation for the purposes of this Agreement on acceptance of such offer by the Transportation supplier;
“Transportation” means the rental of self drive vehicles;
“Transaction Fee” means the cost for CarTrawler to facilitate each transaction, which will be three percent (3%) of the Actual Selling Price; and
“Website(s)” means the website(s) owned and operated by You including any succeeding or replacement website(s) in respect of any website(s) owned and operated by You.