Section 1. Operator Product Listings and Orders
1.1 Products and Product Information. Operator will: (a) provide to Lineupexplorers with all Required Product Information for each product that Operator makes available for listing for sale through the Lineupexplorers.com Site and according to the Lineupexplorers.com Content Management System; (b) ensure that all information (including product category information) provided with respect to each Operator Product is at all times current, accurate, complete, and relevant to such product; and (c) ensure that the Operator Products and Operator’s offer and sale thereof comply with all applicable Laws.
1.2 Product Listing and Merchandising. Subject to the terms of this Agreement (including Operator’s right to determine Purchase Prices), commencing on the Launch Date Lineupexplorers will list Operator Products for sale in the applicable product categories which are supported for third party Operators generally on the Lineupexplorers.com Site and conduct merchandising and promotion of Operator Products as determined by Lineupexplorers (including via the Lineupexplorers Associated Properties or any other functions, features, advertising, or programs on or in connection with the Lineupexplorers.com Site). Operator acknowledges and agrees that Lineupexplorers may implement mechanisms that rate and/or allow Persons to rate and provide feedback regarding Operator Products, Operator and/or Operator’s performance and Operator consents to Lineupexplorers making such ratings and other feedback publicly available.
1.3. Order Processing; Remittance of Sales Proceeds. For each Operator Product sold through the Lineupexplorers.com Site, Lineupexplorers will make available to Operator the Booking Information as the same was received by Lineupexplorers and will (and will have exclusive rights to) collect all Sales Proceeds. Lineupexplorers will remit to Operator on a monthly basis all Sales Proceeds collected by Lineupexplorers, less the Referral Fees due in connection with such sums. The costs for money transfers will be covered by the Operator. The costs for money transfers from the client to the Lineupexplorers will be covered by Lineupexplorers. For all bookings prior 60 days before departure Lineupexplorers will forward a deposit of 10% of the net price at the end of the month. The remainder will be paid at the end of the month which is at least one month before departure date. For all bookings within 30 days prior to departure Lineupexplorers will forward the money at the end of the week where Lineupexplorers received the money from the client.
1.4. Availability Information. Operator will provide availability information on request. Operator may choose to feed availability information in regular time intervals via csv uploadsheets into Lineupexplorers’ availability system. In that case Operator will make sure that the uploaded data is accurate and up to date.
1.5. Quality Standards. Lineupexplorers will remain the right to refuse or to remove a listing without further explanation if the product listing does not meet Lineupexplorers’ quality criteria.
1.6. Customer Reviews. Operator will provide e-mail addresses of 50 randomly selected recent clients. Lineupexplorers will survey the clients and publish results on the Product Detail Page of the Operator’s product. Prospective clients can use the information as a reference. Lineupexplorers will publish all results except the ones that are not appropriate or not written with sufficient seriousness.
Section 2. Sale and Operation, Refunds and Returns.
2.1 Operator’s Terms & Conditions. Operator will provide Lineupexplorers with its General Terms & Conditions and is aware that the contractual agreement of the product sale will be concluded directly between the Operator and the client. The Operator’s GT&C will be the basis of the agreement between the Operator and the client. Lineupexplorers will present the Operator´s GT&C on its platform or make it avaible to the clients. In the rare case that the Operator’s GT&C contradict to Lineupexplorer’s GT&C (Booking a Travel Package on the Lineupexplorers.com Internet Platform) Lineupexplorer’s GT&C will overrule the Operator’s GT&C.
2.2 Sale and Operation. Operator will: (a) operate all Operator Products in accordance with the terms of the applicable Booking Information, this Agreement, all applicable terms & conditions provided by Operator and displayed on the Lineupexplorers.com Site at the time of the applicable booking, all applicable Laws, and, with respect to any digitally distributed product (e.g. downloadable media) or gift card, gift certificate or other stored value instrument product, all applicable Lineupexplorers published guidelines; (b) retrieve Booking Information at least once each business day; (c) not cancel any Operator Transaction except as may be permitted pursuant to Operator’s terms and conditions appearing on the Lineupexplorers.com Site at the time of the applicable order (which terms and conditions will be in accordance with this Agreement) or as may be required under this Agreement; (d) perform Operator Products (except to the extent prohibited by Law); (e) provide to Lineupexplorers information regarding availability, fulfillment and status of operations as requested by Lineupexplorers (including such information as is requested by Lineupexplorers to process payments based on Operator’s booking status) using the processes designated by Lineupexplorers therefore, and all of which information Lineupexplorers may make publicly available; and (f) notwithstanding any other provision of this Agreement, ensure that the entity identified as Operator on the cover page of this Agreement itself is the Operator of all products made available for listing for sale hereunder. Operator will provide a booking-specific travel voucher for each booking or other information included with Operator Products that will identify Operator as the seller of the Operator Product and the Operator-designated Person (which will not include Lineupexplorers or any of its Affiliates) to which a customer may make claims against. Lineupexplorers will forward such information to the client. Operator will not send customers emails confirming bookings of Operator Products.
2.3 Claims and Refunds. Operator will provide Lineupexplorers with Operator’s customer claims and refund policies (which will conform with this Agreement and applicable Laws) for display on the Lineupexplorers.com Site. Operator will accept and process claims and refunds relating to Operator Products in accordance with this Agreement and such posted policies at the time of the applicable booking. Operator will determine and calculate the amount of all refunds (including any taxes or other charges to be refunded) and will route all such refunds directly to the customer. Lineupexplorers will not be involved in this process unless being asked by the Operator.
Section 3. Problems with Operator Products
3.1 Operating Errors and Nonconformities; Recalls. Operator will be solely responsible and hold Lineupexploers harmless in regard to any clients claims for any non-performing, misperforming or other mistake or act in connection with the operation and delivery of Operator Products, except to the extent caused by Lineupexplorers’s failure to make available to Operator Booking Information as the same was received by Lineupexplorers or resulting from address verification;
Section 4. Parity with Operator’s other Sales Channels.
4.1 Operator’s duties
Operator will ensure there is at least parity between offerings through the Operator Sales Channels and Operator Product offerings through the Lineupexplorers.com Site by ensuring that at all times subsequent to the Launch Date: (a) Operator is making available for listing for sale via the Lineupexplorers.com Site under this Agreement each product offered on the Operator Sales Channels, regardless of whether or not the sale thereof is completed online and including each variation thereof, i.e. configurations, etc. (except for Excluded Products and products that Operator is prohibited by Law or contract, vendor or licensor thereof from offering through the Lineupexplorers.com Site, provided that Operator has not encouraged any such prohibition); (b) the Sales Price and each other term of offer and/or sale of each Operator Product (including associated booking charges, any “low price” guarantee, rebate or discount, any free or discounted products or other benefit available as a result of purchasing one or more other products, and terms of applicable return and refund policies) is at least as favorable to Lineupexplorers.com users as the most favorable terms upon which such product is offered and/or sold via the Operator Sales Channels, excluding consideration of Excluded Offers; (c) customer service is provided by Operator with respect to Operator Products that is at least as responsive and available and offers at least the same level of support as the most favorable customer services offered in connection with the Operator Sales Channels (provided that Lineupexplorers will provide customer service for payment-related issues with respect to Operator Transactions); and (d) with respect to each Operator Product, Operator provides to Lineupexplorers Content (subject to Section 7.2), product information and other information under Section 1.1 that is of at least the same quality, completeness, and accuracy as the highest quality and most complete and accurate information displayed in connection with such product on the Operator Sales Channels. Promptly following Operator’s awareness of any non-compliance with clause (b) above, Operator will compensate adversely impacted customers by making appropriate refunds to them in accordance with Section 2.2.
4.2 Fair Price Guarantee. Lineupexplorers may match the lowest competitors’ or operators’ price for a comparable product to guarantee the client fair prices. It is the Operators right to determine sales prices (within restrictions of 4.1) but he is aware that Lineupexplorers sells the Operator’s product on the Operator’s behalf for the lowest price offered by any of the operator’s affiliates or other agents or the operator itself. In those cases the operator grants Lineupexplorers a minimum commission of the above stated percentage if the net price (price minus Lineupexplorers commission) was lower than the initial net price.
Example: Operator determines the sales price to be 100. Lineupexplorers receives 20% commission and a minimum of 10% commission in cases of Fair Price Guarantees. On normal occasions Lineupexplorers sells the product for 100 and receives 20 and forwards 80 (initial net price) to the Operator. In case the client finds the comparable product for 80 Lineupexplorers will check the validity of the competitors offer and if valid sells the product for 80. In such case Lineupexplorer will receive 8 and will forward 72 (Fair Price guarantee net price) to the Operator. In case the competitors price will be 90 Lineupexplorers will still forward only the initial net price of 80 to the Operator.
|
Sales
Price
|
Initial
Net Price
|
Fair Price Guarantee
Net Price
|
Resulting
Commission
|
|
100
|
80
|
80
|
20,0%
|
|
98
|
80
|
80
|
18,4%
|
|
96
|
80
|
80
|
16,7%
|
|
94
|
80
|
80
|
14,9%
|
|
92
|
80
|
80
|
13,0%
|
|
90
|
80
|
80
|
11,1%
|
|
88,89
|
80
|
80
|
10,0%
|
|
88
|
80
|
79,2
|
10,0%
|
|
86
|
80
|
77,4
|
10,0%
|
|
84
|
80
|
75,6
|
10,0%
|
|
82
|
80
|
73,8
|
10,0%
|
|
80
|
80
|
72
|
10,0%
|
|
and so on…
|
|
|
|
Section 5. Use of Lineupexplorers Transaction Information
5.1 Restrictions. Operator will not, and will cause its Affiliates not to, directly or indirectly (including through a Third Party): (a) sell, barter, disclose or otherwise transfer any Lineupexplorers Transaction Information (except Operator may disclose such information as and only to the extent necessary for Operator to perform its obligations under this Agreement and provided that Operator ensures that every recipient thereof uses such information only for such purpose and to such extent and complies with the restrictions applicable to Operator related thereto); (b) use any Lineupexplorers Transaction Information for any marketing or promotional purposes whatsoever (except as permitted under Section 5.2), or otherwise in any way inconsistent with Operator’s privacy policies or applicable Law; (c) contact a Person that has booked an Operator Product that has not yet been delivered with the intent to collect any amounts in connection therewith, to circumvent Lineupexplorers’ receipt of commission or to influence such Person to make an alternative purchase; or (d) disparage Lineupexplorers, its Affiliates, or any of their respective products or services. For a breach of this paragraph both parties agree a minimum penalty of minimum 5000 Euro or higher according to the damage caused.
5.2 Permitted Non-Electronic Communications. Operator and its Affiliates may use Order Information to send physical (non-electronic) direct-mail marketing provided that: (a) such communications primarily promote or advertise Operator or products sold by Operator; and (b) Operator does not target such communications on the basis of the intended recipient being an Lineupexplorers.com user. In no case Operator is entitled to sell or make avaible Order Information to third parties.
5.3 Independent Information. Notwithstanding anything to the contrary in this Section 5, Operator may use data and other information that it has developed or acquired without reference to Lineupexplorers Transaction Information for any purpose whatsoever in its sole discretion, even if such data and information are identical to Lineupexplorers Transaction Information, provided that Operator does not target communications on the basis of the intended recipient being an Lineupexplorers.com user.
Section 6. Compensation
6.1 Referral Fees. With respect to each Operator Transaction, Operator will pay Lineupexplorers the applicable percentage of the Sales Proceeds from such Operator Transaction as specified on the cover page of this Agreement. Lineupexplorers will cover any fees incurred for money transactions from travelers to Lineupexplorers. The operator notes that Lineupexplorers offers the traveler different payment options such as credit card payment, PayPal, Google Payments, Bank Transfer, bank checks and other options that may cost money but that those costs are included in the commission agreed on the cover page.
If Operator refunds money directly to a customer in connection with an Operator Transaction in accordance with Section 2.3, Lineupexplorers will not refund any Referral Fees related to the refund to the Operator.
6.2 General. Except as expressly provided otherwise in this Agreement, each Party will be responsible for all costs and expenses incurred by it in performing its obligations under this Agreement. All payments between the Parties will be remitted to a bank account established and designated in writing by Lineupexplorers or Operator (as applicable). Lineupexplorers will reasonably determine Referral Fees applicable to each Operator Transaction based on the Operator Product being sold, the Referral Fee information on the cover page of this Agreement and Lineupexplorers’s product categorizations. Notwithstanding any other provision of this Agreement: (a) Lineupexplorers may withhold or deduct from and offset against any amounts to be remitted or paid by Lineupexplorers to Operator under this Agreement any amounts payable by Operator to Lineupexplorers or its Affiliates (in reimbursement or otherwise); and (b) Lineupexplorers reserves the right to invoice Operator for amounts due and not otherwise paid to Lineupexplorers or its Affiliates under this Agreement, and Operator will promptly pay Lineupexplorers such amounts within thirty (30) days after receipt of invoice therefore; provided that the foregoing will not limit Operator’s rights to pursue any good faith dispute with Lineupexplorers concerning whether any amounts are payable or due.
Section 7. Proprietary Rights and Licenses
7.1 Reservation of Rights. Each Party reserves all right, title and interest in and to its Intellectual Property Rights and, except as expressly set forth in this Agreement, no right or title to or ownership of either Party’s Intellectual Property Rights is transferred or licensed pursuant to this Agreement.
7.2 Content License. Operator hereby grants to Lineupexplorers a royalty-free, non-exclusive, worldwide, irrevocable right and license, which Lineupexplorers may sublicense only to Lineupexplorers’s Affiliates and owners and operators of Lineupexplorers Associated Properties, during the Term and for as long thereafter as the Operator is permitted to grant the said licence under applicable Law to: (a) use, reproduce, perform, display and distribute on the Lineupexplorers.com Site and on Lineupexplorers Associated Properties, and in advertising and other marketing communications promoting the Lineupexplorers.com Site or Operator Products, any Content (including any Trademarks that consist of text or that are embedded or incorporated into such Content, e.g., a logo in a product image) provided or made available by Operator or its Affiliates to Lineupexplorers or its Affiliates; and (b) adapt, modify, re-format and create derivative works of such Content which derivative works are also subject to the license set forth in clause (a); and (c) make available to other Operators on the Lineupexplorers.com Site in line with Clause 7.4 Product Information provided by Operator or its Affiliates to Lineupexplorers or its Affiliates. Notwithstanding Section 4, Operator will have no obligation under this Agreement to provide or make available any Content for which it cannot grant the rights and licenses granted to Lineupexplorers under this Section 7.2.
7.3 Trademark License. Operator hereby grants to Lineupexplorers a royalty-free, non-exclusive, worldwide, irrevocable (except as provided below) right and license during the Term, and which Lineupexplorers may sublicense only to its Affiliates, to use, reproduce, perform, display and distribute on the Lineupexplorers.com Site, and in advertising and other marketing communications promoting the Lineupexplorers.com Site or Operator Products, any Trademarks made available by Operator or its Affiliates to Lineupexplorers.com or its Affiliates. Notwithstanding Section 11.1, the following restrictions will apply to Trademarks licensed under this Section 7.3 other than Trademarks embedded or incorporated into a product image: (a) neither Lineupexplorers nor any of its Affiliates will alter any such Trademarks from the form provided by Operator or its Affiliates (except to re-size to the extent necessary for presentation, so long as the relative proportions remain the same); (b) advertising and other marketing communications by Lineupexplorers concerning Operator Products and which features such Trademarks will be subject to Operator’s approval (other than uses on the Lineupexplorers.com Site or in emails in which the use of such Trademarks therein is automatically generated); and (c) Lineupexplorers will comply with Operator’s removal requests as to specific uses of such Trademarks (provided that Lineupexplorers will be relieved of any obligations requiring any such uses). Notwithstanding the foregoing, nothing in this Agreement will be construed as restricting Lineupexplorers from using any Trademark in a manner permitted under applicable Law without a license from Operator (e.g., fair use or referential use, or valid license from a third party). All goodwill arising out of any use of any of Operator’s or its Affiliates’ Trademarks by, through or under Lineupexplorers will inure solely to the benefit of Operator and its Affiliates.
7.4 Product Information. Lineupexplorers may decide in its sole discretion to provide Product Information to the Operator. By providing Product Information one or more times, each time in respect of one or more products does not constitute any right for the Operator to receive additional Product Information.
(a) By providing Product Information to the Operator Lineupexplorers grants Operator during the Term a non-exclusive licence to use the respective information for listing Operator Products on the Lineupexplorers.com Site only; Lineupexplorers may revoke this licence at any time.
(b) Operator will not, and will cause its Affiliates not to, directly or indirectly (including through a Third Party) sell, barter, disclose or otherwise transfer any Product Information (except Operator may disclose such information as and only to the extent necessary for Operator to perform its obligations under this Agreement and provided that Operator ensures that every recipient thereof uses such information only for such purpose and to such extent and complies with the restrictions applicable to Operator related thereto);
(c) Upon any termination of the Term or upon Lineupexplorers’s revocation of the licence granted under Clause 7.4 (a) above the Operator must stop and thereafter desist from using the respective Product Information and immediately permanently delete all data from any data medium and destroy any copies thereof.
Section 8. Representations, Declarations and Guarantees; Indemnity
8.1 Representations, Declarations and Guarantees. Each Party represents, warrants and declares and guarantees to the other that: (a) it is a Person duly organized, validly existing and in good standing; (b) it has all requisite right, power and authority to enter into this Agreement and perform its obligations and grant the rights, licenses and authorizations it grants hereunder; (c) this Agreement has been duly authorized, executed and delivered by such Party, and constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms; and (d) it will comply with all applicable Laws in its performance of its obligations and exercise of its rights under this Agreement.
8.2 Indemnification. Each of Lineupexplorers and Operator (as applicable, the “Indemnifying Party”) will defend, indemnify and hold harmless the other Party (the “Indemnified Party”) and its Affiliates (and their respective employees, directors and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys’ fees) arising out of any Claim to the extent such Claim is based on: (a) any actual or alleged breach of any term of this Agreement by the Indemnifying Party; (b) in the case of Operator as the Indemnifying Party, the Operator Sales Channels, Operator Products (including the offer, sale, fulfillment or refund thereof), Operator’s Operations, Operator´s obligations towards clients, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and Operator Taxes (including their collection and payment or failure to do so); and (c) in the case of Lineupexplorers as the Indemnifying Party, any products sold through the Lineupexplorers.com Site other than an Operator Product pursuant to this Agreement, and any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing (but excluding, with respect to all defense, indemnification and hold harmless obligations of Lineupexplorers, any Claim based on the items referenced in the foregoing clause (b) of this Section 8.2).
8.3 Procedure. In connection with any Claim described in this Section 8, the Indemnified Party will: (a) give the Indemnifying Party prompt written notice of the Claim (provided that any delay in notification will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the delay impairs its ability to defend); (b) cooperate reasonably with the Indemnifying Party (at the Indemnifying Party’s expense) in connection with the defense and settlement of the Claim; and (c) permit the Indemnifying Party to control the defense and settlement of the Claim, provided that the Indemnifying Party may not settle the Claim without the Indemnified Party’s prior written consent (which will not be unreasonably withheld or delayed), and provided further that the Indemnified Party (at its cost) may participate in the defense and settlement of the Claim with counsel of its own choosing.
Section 9. Disclaimers and Limitations
9.1 Disclaimers. EACH PARTY HEREBY WAIVES AND DISCLAIMS ANY REPRESENTATION, WARRANTY, DECLARATIONS OR GUARANTEES REGARDING (A) THE OPERATION OF THE LINEUPEXPLORERS.com SITE, (B) THE AMOUNT OF SALES PROCEEDS OR OTHER REVENUES THAT MAY OCCUR DURING THE TERM, AND (C) ANY ECONOMIC OR OTHER BENEFIT THAT THE OTHER PARTY MIGHT OBTAIN THROUGH ITS PARTICIPATION IN OR PERFORMANCE UNDER THIS AGREEMENT.
Section 10. Term and Termination
10.1 In General. The term of this Agreement will commence on the Effective Date and will continue thereafter until terminated by either Party as permitted below in accordance with this Section (such period until so terminated, the “Term”). Either Party may terminate the Term: (a) at any time after the 2nd anniversary of the Launch Date, without cause, upon 30 calendar days prior written notice delivered to the other Party, and (b) at any time during the Term by written notice to the other Party if the other Party materially breaches its obligations hereunder, provided that (i) the non-breaching Party first sends written notice to the breaching Party in accordance with Section 11.6 describing the breach with reasonable particularity and referencing the specific Section(s) of this Agreement breached and declaring intent to terminate the Term on the basis of such breach in accordance with this Section, and (ii) the breaching Party does not cure the breach within 30 days following its receipt of such notice. Notwithstanding the foregoing, the cure period described in clause (b)(ii) above will not apply in the event of a material breach of Section 5, and in such event the non-breaching Party may terminate the Term immediately.
10.2 Effect of Termination. Upon any termination of the Term and to the extent that after termination the Operator and Lineupexplorers have outstanding performance obligations in connection with this Agreement or the Operator’s goods are still in use or circulation, all rights and obligations of the Parties under this Agreement will be extinguished, except that (i) the rights and obligations of the Parties under Sections 1.3, 1.4, 2, 3, 4, and 6 with respect to Operator Transactions occurring during the Term, and (ii) the rights and obligations of the Parties under Sections 5, 7.1, 7.2, 8, 9, 10.2, 11 and 12 generally, in each case will survive the termination or expiration of the Term.
Section 11. Miscellaneous
11.1 Control of Site. Notwithstanding any provision of this Agreement (other than the restrictions in Section 7.3 relating to certain Trademarks), Lineupexplorers will have the right, in its sole discretion, to determine the content, appearance, design, functionality and all other aspects of the Lineupexplorers.com Site (including the right to re-design, modify, remove and alter the content, appearance, design, navigation, functionality, and other aspects of the Lineupexplorers.com Site and/or any page, element, aspect, portion or feature thereof, from time to time) and to delay or suspend listing of, or to refuse to list or to de-list, any or all products in its sole discretion.
11.2 Tax Matters. As between the Parties Operator will be responsible for the collection and payment of any and all Operator Taxes. The Operator agrees that it is the Operator's responsibility to determine whether VAT, customs duties, bed taxes or tourist taxes, excise taxes or other taxes apply to the sale of Operator Products and to collect, report and remit the correct tax, as applicable, to the appropriate tax authority. Operator agrees that, unless otherwise agreed by Lineupexplorers in advance in writing, the price stated by Operator Products is inclusive of any VAT, customs duty, excise tax or other tax that the Operator may be required to remit in connection with such sale. Operator also agrees that Lineupexplorers is not obliged to determine whether VAT or other taxes apply to any sale of any Operator Products and Lineupexplorers is not responsible for collecting, remitting or reporting any VAT or other taxes arising from such sale. Without prejudice to the generality of the foregoing:
(a) If Operator is a business that is established in a European Union country and Operator provides Lineupexplorers with Operator’s valid VAT registration number (issued by the European Union country in which the Operator’s business is established), VAT will not be charged by Lineupexplorers on any referral fees provided the Operator is not established in Germany, and has not supplied a VAT registration number issued by the German authorities. Operator will determine whether VAT on Referral Fees need to be paid in their country and will submit applicable VAT on referral fees to the operator’s applicable tax authorities within the “Reverse Charge VAT EU legislations” themselves. The Operator understands that all referral fees as determined in section 6.1 and the invoices thereof are excluding any Value Added Taxes that may be payable in the country of the Operator. If the Operator operates in a country that does not participates in the “Reverse Charge VAT EU legislations” the Operator will notify Lineupexplorers about this fact. Operator hereby gives the following warranties and representations, namely: (i) that the VAT registration number it submits to Lineupexplorers belongs to the business the Operator operates, and that business is established in one of the European Union countries; (ii) that all transactions regarding the services will be business-related transactions made by the business associated with the VAT registration number Operator submits to Lineupexplorers; (iii) that the VAT registration number and all other information provided by Operator is true, accurate and current and Operator will immediately update any such information held by Lineupexplorers in case of any changes;
(b) Lineupexplorers reserves the right to request additional information and to confirm the validity of any Operator account information (including without limitation Operator’s VAT registration number) from Operator or government authorities and agencies as permitted by law and Operator hereby irrevocably authorises Lineupexplorers to request and obtain such information from such government authorities and agencies. Further, Operator agrees to provide any such information to Lineupexplorers upon request.
(c) Lineupexplorers reserves the right to charge Operator any applicable unbilled VAT if Operator provides a VAT registration number that is determined to be invalid.
(d) If Operator is a business that is established in a European Union country and Operator provides Lineupexplorers with a valid VAT registration number that was issued to Operator by a European Union country, Operator agrees to accept electronic VAT invoices in a format and method of delivery as determined by Lineupexplorers.
11.3 Press Releases and other Communications. Neither Party will, without the other Party’s prior written consent, issue any press releases, or otherwise make any public statements or communications regarding this Agreement, its terms, the relationship of the Parties, or Operator Transactions.
11.4 Non-disclosure. Operator agrees to not: (a) disclose to persons other than its employees, agents, contractors and advisers who Operator ensures will be made aware of and will comply with the obligations in this provision, and (b) use for any purpose other than performance of this Agreement, any non-public information (including but not limited to the terms of this Agreement) of Lineupexplorers and its Affiliates. Operator agrees to store such non-public information in a manner that it is not accessible by Third Parties. Operator’s non-disclosure obligations in relation to such non-public information shall apply during and for three years following expiry or termination of this Agreement.
11.5 Performance through Affiliates; Assignment. Either Party may: (a) perform any of its obligations under this Agreement through one or more of its Affiliates; and (b) assign this Agreement to an Affiliate, or in connection with any merger, consolidation, reorganization, sale or similar transaction involving all or substantially all of its assets relating to this Agreement, with the effect that the Agreement will be binding on and enforceable by such assignee; provided that with respect to each of clauses (a) and (b), each Party will remain liable for such obligations and this Agreement to the extent not performed by such Affiliates or assignees, as applicable. Neither Party may assign this Agreement other than as permitted under clause (b) above without the other Party’s prior written consent.
11.6 Notices. Except for notices for which an alternative procedure is identified in this Agreement, to be effective, any notice under this Agreement given by either Party to the other Party must be in writing and must be sent to the intended recipient by prepaid registered mail, receipted commercial courier, or electronically receipted facsimile transmission, at its address(es) or facsimile number(s) and to the attention of the officer(s) specified in the other Party’s notice section of the cover page of this Agreement. Either Party may from time to time change such information by giving the other Party notice of such change in accordance with this Section 11.6. Notices under this Agreement will be effective only upon delivery to the intended recipient.
11.7 Independent Contractors. The Parties are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, mandate, representation or employment relationship between them. Neither Party will represent itself to be an employee or agent of the other, and neither Party will enter into or purport to enter into any agreement or legally binding commitment on the behalf of or in the name of the other Party or the other Party’s Affiliates.
11.8 Nonwaiver. To be effective, any waiver by a Party of any of its rights or the other Party’s obligations under this Agreement must be made in a writing signed by the waiving Party. No failure or forbearance by either Party to insist upon or enforce performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise constitutes a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision, right, or remedy in that or any other instance; rather, the same will be and remain in full force and effect.
11.9 Headings; Construction. The headings of Sections and subsections of this Agreement are for convenience of reference only and are not intended to affect the interpretation or construction of any provision of this Agreement. In resolving any dispute or construing any provision hereunder, there will be no presumptions made or inferences drawn (i) because one of the Parties (or its representatives) drafted the Agreement, or (ii) because of the drafting history of the Agreement, and each Party hereby waives application of, and any rights under, any Law that would require the interpretation of any ambiguities in this Agreement against the Party that drafted it. Whenever used in this Agreement, unless otherwise specified the terms “includes”, “including”, “e.g.,”, “for example”, “for instance” and other similar terms are deemed to include the term “without limitation” immediately thereafter.
11.10 Choice of Law; Jurisdiction. This Agreement will be governed by the Laws of the Federal Republic of Germany, without reference to its choice of Laws rules. Each Party hereby irrevocably consents to the non-exclusive jurisdiction and venue of the courts of Munich City, Germany. The Parties’ rights and obligations are not governed by the United Nations Convention on Contracts for the International Sale of Goods.
11.11 Suggestions. Operator or any of its Affiliates may elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to Lineupexplorers or any of its Affiliates in connection with or related to: (a) the Lineupexplorers.com Site, including any Technology utilized within or in connection with the Lineupexplorers.com Site or any other website operated by or for Lineupexplorers or its Affiliates (including Lineupexplorers’s specifications related to the listing, sale and/or fulfillment of products (e.g., product feeds, inventory availability feeds, returns and refund processing feeds, etc.) and any other Technology utilized in connection with the transmission, receipt or processing of any such information); or (b) any method or other means by which a Person may make available for sale, offer or sell products or services through the Lineupexplorers.com Site. Lineupexplorers will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner.
11.12 Cumulative Rights, Remedies and Obligations. Except as may be otherwise expressly provided herein: (a) the rights, remedies and obligations of the Parties hereunder are cumulative and are not intended to be exclusive of any other right, remedy or obligation now or hereafter provided hereunder or by Law or in equity or any other form of judicial discretion; and (b) the election of any one or more available remedies by either of the Parties will not constitute a waiver of the right of such Party to other available remedies.
11.13 No Exclusivity; Competition. Each Party acknowledges and agrees that the rights granted to and obligations due to the other Party in this Agreement are intended to be non-exclusive, and therefore that nothing in this Agreement will be deemed or construed to prohibit either Party from engaging in or participating with one or more third parties in business arrangements similar to or competitive with those described herein except to the extent that the same would breach the express terms of this Agreement. In case the Operator agrees to list its travel packages exclusively for any particular sales regions as stated on the cover sheet the Operator is prohibited to list or to sell its travel packages on any other platform, with any other agency or with any other entity that could be considered competition of Lineupexplorers.
11.14 Entire Agreement; Amendment. This Agreement represents the entire agreement between the Parties with respect to the subject matter hereof and supersedes any previous or contemporaneous oral or written agreements and understandings regarding such subject matter. If information regarding a “Previous Agreement” is specified on the cover page of this Agreement, then effective as of the Effective Date the term of the “Previous Agreement” so identified and all amendments thereto will be terminated and such agreement and amendments will have no further force or effect except those terms expressly contemplated therein to survive termination. This Agreement may be amended or modified only by: (a) a written instrument signed by a duly authorized agent of each Party; or (b) an electronic document that is presented to Operator by Lineupexplorers and agreed to by Operator via a specific and affirmative act in an online format.
12. Definitions. Whenever used in this Agreement with initial letters capitalized, the following terms will have the following specified meanings:
“Operator” means a company, party or project owner that operates a trip or travel service under her own responsibility or whose trip or travel service consists of two or more parts and is considered legally a package.
“Agency” means a company, party or project owner that only sells or distributes a trip or travel service on behalf of an Operator. It does not control any of the trip or services.
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by or is under common control with that Person.
“Lineupexplorers.com Site” means that website, the home page of which is identified by the URL www.Lineupexplorers.com, and any successor or replacement website. For the avoidance of doubt, the “Lineupexplorers.com Site” does not include any other websites maintained by or for Lineupexplorers or its Affiliates, or any websites that may be linked to or from the Lineupexplorers.com Site.
“Lineupexplorers Transaction Information” means, collectively, Order Information, and any other data or information acquired by Operator or its Affiliates from Lineupexplorers or its Affiliates, or otherwise as a result of the implementation of this Agreement, the transactions contemplated hereby or the Parties’ performance hereunder.
“Claim” means any claim, action, audit, investigation, inquiry or other proceeding brought or instituted against a Party and/or one or more of its Affiliates (and/or one or more of its or their respective employees, directors or representatives) by a Person other than: (a) an Affiliate of that Party; or (b) the other Party.
“Content” means copyrightable works under applicable Law and content protected by database rights.
“Excluded Offer” means any discount, rebate or other promotional offer that Operator: (a) has attempted to make available through the Lineupexplorers.com Site but that Lineupexplorers does not honor or support (but only until such time as Lineupexplorers honors or supports the same); or (b) makes available solely to Third Parties that either (i) purchase products solely for resale and who are not end users of such products (i.e., wholesale purchasers), or (ii) have affirmatively elected and opted-in to participate in Operator’s and/or one of its Affiliates’ membership-based customer loyalty or customer incentive programs.
“Intellectual Property Right” means any patent, copyright, Trademark, design, database right, moral right or trade secret right and any other intellectual or industrial property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing.
“Launch Date” means the date on which Lineupexplorers first lists a Operator Product for sale on the Lineupexplorers.com Site, provided that if a “Renewal Effective Date” is specified on the cover page of this Agreement, then the Launch Date means the Effective Date.
“Law” means any law, ordinance, rule, regulation, order, license, permit, binding judgment, decision or other requirement, now or hereafter in effect, of any governmental authority of competent jurisdiction.
“Order Information” means, with respect to any Operator Product sold through the Lineupexplorers.com Site, the following information: the name of the customer, the name of the recipient, the type of product booked, the number of persons booked, and any special comments included by Lineupexplorers in its discretion.
“Person” means any individual, corporation, partnership, limited liability company, governmental authority, association, joint venture, division or other cognizable entity, whether or not having distinct legal existence.
"Product Information" means any combination of the following product information: title, product description with itineraries and so forth.
“Referral Fees” means the amounts payable by Operator under Section 6.1.
“Required Product Information” means, with respect to each Operator Product, the following (except to the extent expressly not required under Lineupexplorers published guidelines): (a) description; (b) schedules; (c) itineraries; (d) meeting points (e) safety precautions; (f) information regarding availability status, capacity limitations or restrictions, and (g) categorization within each Lineupexplorers product category and browse structure as prescribed by Lineupexplorers from time to time; (h) digitized image that accurately depicts only the Operator Product and does not include any additional logos, text or other markings; (i) Purchase Price; (j) any additional charges (in accordance with Lineupexplorers’s standard functionality therefor); (k) any text, disclaimers, warnings, notices, labels or other content required by applicable Law to be displayed in connection with the offer, merchandising, advertising or sale of the Operator Product; (l) General Terms & Conditions and (m) any other information reasonably requested by Lineupexplorers according to Lineupexplorers content management system.
“Sales Proceeds” means the gross sales proceeds from any Operator Transaction, including the Purchase Price and other charges collected by Lineupexplorers or its Affiliates applicable with respect thereto and including any taxes and customs duties.
“Operator Materials” means all Trademarks, Content, Required Product Information, information, data, materials, and other items provided or made available by Operator or its Affiliates to Lineupexplorers or its Affiliates.
“Operator Product” means any product that is made available for listing for sale, offered for sale, or sold by Operator through the Lineupexplorers.com Site pursuant to this Agreement.
“Operator Sales Channels” means the website(s) and catalog(s) specified on the cover page of this Agreement, together with any other website operated by or on behalf of Operator that is primarily branded the same as any ‘storefront’ on the Lineupexplorers.com Site featuring Operator Products and any successor or replacement of any of the foregoing websites and catalogs.
“Operator Taxes” means any and all sales, use, excise, import, export, value added and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products by Operator on or through the Lineupexplorers.com Site, or otherwise in connection with any action, inaction or omission of Operator or its Affiliates or their respective employees, agents, contractors or representatives.
“Operator Transaction” means any sale of a Operator Product through the Lineupexplorers.com Site.
“Technology” means any: (a) ideas, procedures, processes, systems, methods of operation, concepts, principles and discoveries protected or protectable under the Laws of any jurisdiction; (b) interfaces, protocols, glossaries, libraries, structured XML formats, specifications, grammars, data formats, or other similar materials; and (c) software, hardware, code, technology or other functional item.
“Term” is defined in Section 10.1.
“Third Party” means a Person other than a Party or a Party’s Affiliate.
“Trademark” means any trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, other proprietary logo or insignia or other source or business identifier, protected or protectable under any Laws.
“URL Marks” means any Trademark, or any other logo, name, phrase, identifier or character string, that contains or incorporates any top level domain (e.g., .com, .co.uk, .com, .edu, .fr, .jp) or any variation thereof (e.g., dot com, dotcom, net, or com).
