Special Announcement: Locomote becomes Webjet Business Travel
(a) Webjet Business Travel is the creator, developer and owner of a cloud-based platform known as the Webjet Business Travel Cloud Platform, which allows the Client to book travel including, without limitation, air, hotel and car content securely online.
(b) The Client wishes to utilise the Platform in its business in the Territory.
(c) Webjet Business Travel has agreed to provide the Client and its Authorised Users with access to the Platform and the Webjet Business Travel Services on the terms set out in this Agreement.
Lite Subscription Only: The Lite Subscription is intended to provide flexible, low-commitment access to the Platform without a recurring subscription fee.
Capitalised words used in this Agreement are defined in clause 26 of this Agreement.
In the event of any inconsistency between the following documents, the inconsistency will be resolved in the following descending order of precedence unless otherwise agreed by the parties in writing:
(a) Item 10 of the Key Information Schedule;
(b) the clauses of this Agreement;
(c) Items 1 to 6 of the Key Information Schedule; and
(d) the schedules to this Agreement.
Pro, Premium & Enterprise Plans:This Agreement commences on the Start Date and will continue until expiry of the Initial Contract Term and any Renewal term under clause 4.2, unless otherwise terminated in accordance with clause 21 (Subscription Term).
Lite Subscription Only:This Agreement commences on the Start Date and continues on an open-ended basis unless terminated in accordance with clause 21.
Applies to Pro, Premium & Enterprise Plans only:
(a) Upon expiration of the Initial Contract Term of 12 months, this Agreement will automatically renew for the applicable Renewal Contract Term of 12 months, unless either party notifies the other in writing at least 60 days before the applicable renewal date that the Agreement will not be renewed.
(b) The terms and conditions set out in this Agreement will apply to any Renewal Contract Term.
(a) The parties agree to an implementation schedule for the Implementation of the Platform (the Implementation Schedule). The timing and milestones in the Implementation Schedule are based on the agreed Go Live Date set out in Item 6 of the Webjet Business Travel Services Agreement.
(b) Webjet Business Travel must configure the Platform such that it meets the Requirements by the date(s) specified in the Implementation Plan.
(c) Each party must carry out its obligations in accordance with the Implementation Schedule and Client must provide all assistance and information reasonably required by Webjet Business Travel in a timely manner in order to assist Webjet Business Travel to Implement the Platform. Client acknowledges and agrees that any delay in the provision of such assistance or information may delay the Implementation of the Platform and the Go Live Date.
(d) If a party becomes aware of an actual or potential delay in achievement of its obligations under the Implementation Plan (Delay) that party must:
(i) immediately notify the other party of that Delay; and
(ii) comply with all reasonable requests made by the other party to prevent, rectify, or mitigate the impact of the Delay.
(e) Each party will bear its own costs regarding the activities contemplated by the Implementation Schedule unless otherwise agreed in writing.
(f) Client must not and must ensure that its Authorised Users and Personnel do not access and use the Platform prior to the Go Live Date, except as agreed by Webjet Business Travel.
(a) The parties must perform the Acceptance Tests in the manner and at the time(s) set out in the Implementation (or otherwise as agreed in writing between them) for the purposes of determining whether the Platform meets the Requirements and is in working order.
(b) Within five Business Days of completion of the Acceptance Tests, Client must notify Webjet Business Travel in writing that it either:
(i) accepts the Platform; or
(ii) rejects the Platform on the basis it does not meet the Requirements, in which case Client will notify Webjet Business Travel of its specific reasons for rejection and give Webjet Business Travel a reasonable opportunity to rectify any fault or error and undertake further testing to demonstrate that the Platform meets the Requirements.
(c) If the Platform is rejected by Client on three or more occasions under this clause 5.2, Client may terminate this Agreement by giving Webjet Business Travel five Business Days' notice in writing.
(d) If Client accepts the Platform in accordance with clause 5.2(b)(i), the parties will agree in writing the intended Go Live Date for the Platform.
(e) Client acknowledges and agrees that if it requests Webjet Business Travel to make any changes to the Platform that fall outside the Requirements, then additional Fees may apply.
The parties agree that if the Platform does not meet the Requirements by the date which is three months after the Start Date (or such later date as may be agreed by the parties in writing), either party may terminate this Agreement without liability by giving five (5) Business Days' notice in writing.
During the Contract Term, Webjet Business Travel will facilitate Client's access to the Platform and provide the Services:
(a) in accordance with this Agreement;
(b) with due care and skill;
(c) using appropriately skilled, experienced and qualified Personnel; and
(d) in compliance with all laws applicable to Webjet Business Travel and relevant to the Platform and the Services.
During the Contract Term, Webjet Business Travel will use reasonable commercial efforts to:
(a) make the Platform available on a 24/7 basis (subject to Planned Outages or unplanned downtime) within the Territory, however, subject to clause 9(c), Webjet Business Travel will not be liable for any failure to achieve this target;
(b) minimise the occurrence and duration of any outages, downtime (for Planned Outages) or other causes of inaccessibility to the Platform;
(c) provide appropriate release notes and information to Client whenever new features, functionality, models or dashboards are added to the Platform; and
(d) ensure the integrity and security of the Platform as per industry standards and any application legislation.
(a) Subject to clause 6.3(c), at any time during the Contract Term, Webjet Business Travel may offer, or Client may request, the provision of additional services (Additional Services). Any agreement regarding Additional Services must be signed in writing by each party and will be subject to the terms of this Agreement. Client acknowledges and agrees that the provision of Additional Services may attract additional Fees payable by Client.
(b) Once agreed, any Additional Services will become Services for the purposes of this Agreement.
(c) Nothing in clause 6.3(a) obliges Webjet Business Travel to provide any Additional Services.
Unless otherwise agreed in writing by the parties, Webjet Business Travel is not required to perform any Services in respect of:
(a) performance issues resulting from changes in Client's operating environment;
(b) repair of damage arising from any act, error, fault, neglect, misuse, improper operation or omission of Client or any other person (other than Webjet Business Travel or any of its personnel) whether or not that person is under Client's direction, control or authority;
(c) repair or damage caused by the operation of the Platform other than in accordance with Webjet Business Travel's specifications, directions or instructions provided to Client;
(d) repair or damage to the Platform caused by any circumstances beyond Webjet Business Travel's reasonable control; or
(e) furnishing or supplying or maintenance of accessories, attachments, supplies, spare parts, consumables or items associated with the Platform unless otherwise specified as forming part of the Webjet Business Travel Services.
In addition to any of Client's other obligations under this Agreement, Client must:
(a) evaluate and satisfy itself of the adequacy of the Platform and the Webjet Business Travel Services for Client's particular purposes and needs;
(b) provide Webjet Business Travel with such access, facilities, information, cooperation and assistance that Webjet Business Travel reasonably requires to properly perform its obligations under this Agreement;
(c) maintain such internet, network or telecommunication links as required to access and use the Platform;
(d) ensure that its networks and systems comply with any specifications provided by Webjet Business Travel from time to time (including in any compatibility statement as may be updated by Webjet Business Travel from time to time), noting that any material changes to the specifications would be made by Webjet Business Travel in consultation with Client;
(e) ensure automatic updates and anti-virus software are controlled on computers where the Platform is installed so as not to affect operations of the Platform;
(f) comply with, and ensure that Client's Personnel comply with, Webjet Business Travel's reasonable directions and restrictions regarding access to and use of the Platform and the Services;
(g) ensure that all information provided to Webjet Business Travel in connection with this Agreement (including Client Data) is and remains true and correct;
(h) comply with all applicable laws relevant to its use of the Platform including, without limitation, all laws relating to data protection and privacy;
(i) ensure that it has obtained all relevant licences, permissions, authorisations, permits, consents and approvals in order to obtain, receive, access and use the Platform, or provide Client Data to Webjet Business Travel; and
(j) promptly notify Webjet Business Travel of any issues or concerns regarding the Platform or the Webjet Business Travel Services.
(a) Client will participate, and ensure its Authorised Users have the opportunity to participate, in any training sessions generally offered and made available by Webjet Business Travel in relation to the Platform. Unless otherwise agreed in advance, Webjet Business Travel will offer such training sessions free of charge however Client will bear all costs and expenses incurred by it in attending or arranging for its Authorised Users to attend such training.
(b) Where Webjet Business Travel issues Client with login credentials to access the Platform the Client must use its best endeavours to protect such credentials against misuse and notify Webjet Business Travel of the need to suspend or change such credentials promptly after becoming aware of that need.
(c) Client agrees that:
(i) any act or omission by an Authorised User is deemed to be an act or omission by Client; and
(ii) Client must ensure that an Authorised User does not do or omit to do anything that would cause Client to breach this Agreement.
Client must not, and must ensure that its Authorised Users do not:
(a) use or operate the Platform in a manner not supported by the Platform (as notified by Webjet Business Travel to Client);
(b) create derivative works based on the Platform, build a competitive product or service or copy any features, functions or graphics of the Platform;
(c) create, market, distribute add-ons or enhancements to the Platform, or incorporate the Platform (or any part of it) into another product without the prior written consent of Webjet Business Travel;
(d) share, resell, or otherwise provide in exchange for any compensation, the Platform or Services to any person who is not an Authorised User;
(e) use the Platform:
(i) to store or transmit:
A. malicious code, Trojan horses, malware, spam, viruses, or other destructive technology; or
B. libellous, unlawful or tortious material, or to store or transmit material in violation of third party privacy rights; or
(f) remove any proprietary notices or labels on the Platform.
(a) Webjet Business Travel may provide Client with products, services or recommend software in the course of providing the Webjet Business Travel Services, that are licensed by or outsourced to a third party provider (Third Party Service).
(b) Webjet Business Travel may require that Client, at its sole cost, obtain any required licence from a Third Party Service directly. In such instances, Webjet Business Travel is not a party to that relationship and nor does it have any liability to Client in respect of the Third Party Service. Client acknowledges and agrees that it is responsible for reading and understanding any Third Party Service licence terms.
(c) Webjet Business Travel will provide Client with notice if the cost of obtaining any licences, software or services from any Third Party Provider is not included in the Fees.
(a) Webjet Business Travel must use its reasonable endeavours to provide the Webjet Business Travel Services in a manner which meets or exceeds the Service Levels.
(b) If Webjet Business Travel fails to meet any Service Levels, it must:
(i) notify Client in writing, or as outlined in Schedule 2 'Travel program insights and analysis', of the relevant failure;
(ii) provide timely updates to Client in relation to the progress being made in rectifying the failure;
(iii) promptly take all necessary action to minimise the impact of the failure; and
(iv) correct the failure as soon as practicable and take all necessary steps to prevent the recurrence of the failure.
(c) Notwithstanding anything else in this Agreement, if, in any rolling three-month period the Platform suffers two or more extended outages (being an outage that cannot be substantially resolved by Webjet Business Travel in five Business Days but excluding any Planned Outage), then Client may terminate this Agreement by notice in writing and Webjet Business Travel will refund, on a pro-rata basis, any Fees paid in advance by Client.
Pro, Premium & Enterprise Plans:In consideration for Webjet Business Travel making the Platform available and providing the Services, Client agrees to pay Webjet Business Travel the Fees.
Lite Subscription Only:(a) No recurring or fixed subscription fees are payable for access to the Platform;
(b) Webjet Business Travel may charge transaction-based fees, booking fees, merchant fees, supplier charges or other usage-based fees as disclosed in the Key Information Schedule, booking flow or applicable confirmation; and
(c) All other fee provisions apply only to the extent they relate to transaction-based or usage-based charges.
Applies to Pro, Premium & Enterprise Plans only:
(a) At least 90 days prior to the commencement of any Renewal Contract Term, Webjet Business Travel may notify Client of the updated Fees that will apply to that Renewal Contract Term (Fee Notice).
(b) Unless Client notifies Webjet Business Travel within 10 Business Days of a receipt of a Fee Notice that it does not accept the Fee Notice, Client will be deemed to have accepted the Fee Notice and, subject to clause 4.2(a), the Fees will be adjusted accordingly from the commencement of the new Renewal Contract Term in accordance with the Fee Notice.
(c) If Client notifies Webjet Business Travel that it does not accept the Fee Notice, then this Agreement will terminate with effect from the expiration of the Initial Contract Term or the then current Renewal Contract Term (whichever applies).
(d) If Client wishes to change its Subscription Package within an applicable Contract Term, then the applicable Fees will reflect the then current pricing for the Subscription Package that Client is moving to as advised to Client by Webjet Business Travel (with effect from the date on which Client moves to the new Subscription Package).
(e) For transaction fee Clients; in addition to any Fee Notice, the Fees will be adjusted annually on each anniversary of the Services Start Date (and on the commencement of each Renewal Contract Term) by the percentage change in the Australian Consumer Price Index (All Groups, Weighted average of eight capital cities) as published by the Australian Bureau of Statistics (or any successor governmental agency) over the most recent 12-month period available before the adjustment date. If the CPI change is negative, no reduction to the Fees will apply. Webjet Business Travel will provide Client with at least 30 days' prior written notice of any CPI adjustment.
(a) Webjet Business Travel must submit invoices to Client at the frequency set out in Schedule 2.
(b) All invoices will:
(i) be in the form of a tax invoice within the meaning of the GST Law; and
(ii) identify the applicable Subscription Package and relevant Services to which the invoice relates.
(c) Payment will be via Credit Card or Trading Account; and
(d) If by Trading account an admin fee of 2% inclusive of GST will apply, Client must pay each invoice (without withholding, deduction or set off of any kind), within the agreed days being of the date of the invoice, as stated in the agreement. If Client disputes any invoice, it must pay the undisputed amount and the dispute will be managed under clause 23.
(e) If by Credit Card, a surcharge of 1.5% for Visa and Mastercard and 1.9% for American Express (inclusive of GST) will be applied to the Fees stated in the invoice.
If Client fails to pay an amount under this Agreement by its due date, Webjet Business Travel may:
(a) charge Client interest on that amount at the Default Rate (calculated daily) from the date after the due date up to and including the date on which payment is made; and/or
(b) suspend all or part of the Services in accordance with clause 21.2.
Notwithstanding anything else in this Agreement, if any validly issued invoice remains unpaid after 60 days, then:
(a) Webjet Business Travel may suspend or terminate the applicable Services, and/or access to the Platform, at its discretion;
(b) the balance of all outstanding amounts in relation to all Services (whether invoiced or not) will be immediately due and payable; and
(c) Webjet Business Travel is relieved of its obligations in respect of all Services suspended or terminated under this clause 10.5.
(a) In this clause 10, any terms used that are defined in the GST Law have the same meanings given to them in the GST Law.
(b) Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.
(c) If GST is imposed on any supply made under or in connection with this Agreement, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply subject to the recipient receiving a valid tax invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this Agreement.
(d) If this Agreement requires a party to pay for, reimburse or contribute to any expense, Loss or outgoing (reimbursable expense) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the amount of the reimbursable expense net of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense plus any GST payable by the other party.
From time to time, Webjet Business Travel may use special or privately negotiated fares that are not available to the public. When these fares are used, the price shown to the Client reflects the fare applied together with the travel services provided by Webjet Business Travel. The availability and conditions of these fares are set by the relevant supplier and may change or be withdrawn at any time.
In providing travel services to the Client, Webjet Business Travel may incur fees or charges imposed by third-party travel suppliers or facilitators. Where such fees or charges are incurred solely in connection with the provision of travel services to the Client, Webjet Business Travel may pass through and on-charge those amounts to the Client as part of a transaction, booking, invoice or adjustment, unless expressly stated otherwise in this Agreement. This clause does not apply to third-party costs relating to the Platform.
Despite anything else in this Agreement, Webjet Business Travel may, at any time:
(a) update, modify or remove its Subscription Packages by notice in writing;
(b) discontinue any functionality of the Platform or the entirety of the Platform or GDS by providing Client with at least 90 days advance notice; and/or
(c) without notice, make changes to the Platform and/or the provision of the Services, or the activities which form part of the Platform or Webjet Business Travel Services, that it deems necessary to comply with any applicable law or safety requirements; or which do not materially adversely affect the Platform or the Services.
(a) Webjet Business Travel or Supplier, or its authorised nominee may schedule Planned Outages, which may interrupt availability of the Platform or the Services.
(b) If a Planned Outage will result in the Platform being unavailable, Webjet Business Travel will provide Client with reasonable advance notice (or, if this is not possible, then as soon as practicable following Webjet Business Travel becoming aware of the Planned Outage).
(c) For all other Planned Outages, Webjet Business Travel will provide notice to Client as soon as practicable following Webjet Business Travel becoming aware of the Planned Outage.
(d) Despite clauses 12(b) and 12(c), if Webjet Business Travel (or its authorised nominee) determines that the Planned Outage needs to be scheduled more urgently, Webjet Business Travel may implement this and Client agrees to make no claim for Loss of any kind as a result.
(a) Webjet Business Travel and/or its third party licensors (as the case may be) owns and retains all Intellectual Property Rights in the Platform (including in relation to its design, format, concept, content, information and data), including any customisations or Updates.
(b) Webjet Business Travel grants Client a non-exclusive, non-transferable, non-sublicensable licence to use (and for each of the Authorised Users to use) the Platform and the Webjet Business Travel Services for the Subscription Term for the purposes of obtaining the intended benefit of the Platform and the Webjet Business Travel Services.
(c) Client acknowledges that it does not and will not have any rights in the Platform other than the rights granted under this Agreement.
(a) Each party retains ownership of its Intellectual Property Rights existing prior to the Start Date or developed independently of this Agreement (Background IP), and any developments, modifications or updates to Background IP and nothing in this Agreement assigns such Background IP to the other party.
(b) For clarity:
(i) Client owns all Intellectual property Rights in the Client Data;
(ii) Webjet Business Travel owns all Intellectual Property Rights in any data that it collects regarding Client's use of the Platform, including as may be aggregated with the data of other users of the Platform.
(c) Client grants Webjet Business Travel an irrevocable, worldwide, royalty free licence to use, copy and modify Client's Background IP and any data or material provided by Client to Webjet Business Travel (including the Client Data) to the extent required to enable Webjet Business Travel to fulfil its obligations under this Agreement.
(a) Immediately upon creation, all rights, title and interest to Developed IP will be owned by Webjet Business Travel.
(b) Webjet Business Travel grants Client a royalty-free, non-exclusive, worldwide licence to use the Developed IP for the Subscription Term, but only to the extent required for Client to obtain the intended benefit of the Platform and the Webjet Business Travel Services under this Agreement.
(a) All Third Party IP will be owned by the relevant third party licensor.
(b) Client's rights to use Third Party IP will be subject to the terms of any licence between Client and the relevant third party licensor. Client must at all times comply with any such licence terms as a condition of receiving access to the Platform and the Webjet Business Travel Services under this Agreement.
(a) Any comments, ideas or reports provided by Client or an Authorised User to Webjet Business Travel regarding the Platform (Feedback) will be considered Webjet Business Travel's Intellectual Property Rights and Client irrevocably transfers and assigns to Webjet Business Travel all rights embodied in or arising in connection with such Feedback.
(b) Client acknowledges and agrees that Webjet Business Travel, in its sole discretion, may freely use all Feedback without attribution or compensation to Client or any Authorised User.
(a) Subject to clause 13.6(b), Webjet Business Travel warrants that:
(i) it is entitled to grant to Client the licences under this clause 13; and
(ii) access to and use of the Platform by Client (and its Authorised Users) in accordance with the terms of this Agreement does not infringe the rights of any third party (including Intellectual Property Rights).
(b) The warranty in clause 13.6(a) will not apply to the extent that:
(i) Client or any Authorised User uses the Platform in breach of this Agreement, the Terms of Use or any directions or instructions given by Webjet Business Travel; or
(ii) Client or any Authorised User modifies or alters the Platform without Webjet Business Travel's consent.
(c) Client must:
(i) promptly notify Webjet Business Travel of any claim of which it becomes aware that the provision or use of the Platform infringes the rights of any third party (IP Claim);
(ii) allow Webjet Business Travel to run the defence of any IP Claim; and
(iii) reasonably cooperate with Webjet Business Travel in relation to any IP Claim.
(d) In the event that any IP Claim is made against Webjet Business Travel, then as the sole and exclusive remedy to Client in respect of such claim, Webjet Business Travel will (at its discretion) either:
(i) procure for Client on reasonable commercial terms, the right to continue to access and use the Platform;
(ii) replace or modify any aspect of the Platform so that the infringement or alleged infringement ceases; or
(iii) if it is found that the options provided in this clause 13.6(d) are not able to be implemented, terminate this Agreement, in which case, clause 21.3 will apply.
(a) To the maximum extent permitted by law, and except as otherwise expressly set out in this Agreement, all express or implied guarantees, warranties or representations relating to the Platform and the Webjet Business Travel Services are excluded.
(b) If any guarantee, warranty or representation is implied into this Agreement and cannot be excluded at law but can be limited, Webjet Business Travel's liability for breach of such guarantee, warranty or representation is limited to (at Webjet Business Travel's option):
(i) supplying the Platform and/or the Webjet Business Travel Services again; or
(ii) the payment of the cost of supplying the Platform and/or the Webjet Business Travel Services again.
(c) Webjet Business Travel does not warrant that the Platform and/or the Webjet Business Travel Services:
(i) will be error free, free from viruses, operate without delay or interruption; or
(ii) will meet Client's business needs.
(d) To the maximum extent permitted by law, the Platform and the Webjet Business Travel Services are provided on an "as is" basis.
Neither party is liable to the other for any Indirect Loss.
Subject to clauses 14.2 and 14.4, Webjet Business Travel's maximum aggregate liability to Client (whether in contract, tort (including negligence) under statute, under an indemnity or otherwise) for any Loss suffered or incurred by Client in connection with this Agreement is limited to an amount equal to the Fees paid by Client to Webjet Business Travel in the six month period prior to the Loss arising.
Nothing in this Agreement limits or excludes liability of a party:
(a) that cannot be limited or excluded by law;
(b) for acts or omissions of fraud or wilful misconduct;
(c) for personal injury or death, or damage to or loss of real property, caused or contributed to by that party or its Personnel;
(d) in the case of Webjet Business Travel, for any Loss which is covered by an indemnity given under clause 15.1; or
(e) in the case of Client, for any Loss which is covered by an indemnity given under clause 15.2.
Notwithstanding any other provision of this Agreement, Webjet Business Travel is not liable to Client for any loss of data (including any Client Data).
Webjet Business Travel indemnifies Client from and against any Loss suffered or incurred by Client arising directly out of:
(a) any fraudulent act or omission or wilful misconduct of Webjet Business Travel or any of its Personnel in connection with this Agreement; and
(b) any allegation or claim brought against Client by a third party that use of the Platform or the Webjet Business Travel Services in accordance with the terms of this Agreement infringes the third party's Intellectual Property Rights.
Client indemnifies Webjet Business Travel from and against any Loss suffered or incurred by Webjet Business Travel arising directly out of:
(a) any fraudulent act or omission or wilful misconduct of Client or any of its Authorised Users in connection with this Agreement;
(b) any breach of this Agreement or any applicable law (including the Privacy Act) by Client; and
(c) any damage to or interference with the Platform caused by Client or any of its Authorised Users.
Nothing in this clause 15 will be taken in any way as reducing or affecting a party's common law obligation to mitigate its Losses.
A party's obligation to indemnify the other party under this clause 15 will be reduced proportionally to the extent that any act or omission of the other party caused or contributed to the Loss.
Each party must only use or copy the other party's Confidential Information for the purposes of this Agreement and must take all steps reasonably necessary to:
(a) maintain the confidentiality of the other party's Confidential Information;
(b) protect the Confidential Information of the other party from unauthorised access, use, copying or disclosure; and
(c) ensure that any person who has access to Confidential Information of the other party does not use, copy or disclose that Confidential Information other than in accordance with this Agreement.
A party must not disclose the other party's Confidential Information to any person except:
(a) to its Personnel on a 'need to know' basis, provided those persons first agree to observe the confidentiality of the information;
(b) if required by law, any regulatory authority or any stock exchange (in which case it must notify the other party prior to the disclosure); or
(c) in the case of Client, as required under clause 16.3.
Each party acknowledges that:
(a) the value of the other party's Confidential Information is such that an award of damages or an account of profits may not be adequate compensation for breach of this clause 16; and
(b) without compromising its right to seek damages or receive any other form of relief in the event of a breach of this clause 16, a party may seek and obtain an ex-parte interlocutory injunction or final injunction to prohibit or restrain the other party or its Personnel from any breach or threatened breach of this clause 16.
(a) Subject to clause 16.5(c), a party must, if requested to do so by the other party, on termination or expiration of this Agreement, at its own expense:
(i) return to the other party the Confidential Information of the other party which is in the first party's power, possession or control (or, if directed to do so by the other party, destroy the Confidential Information of the other party); and
(ii) provide written confirmation to the other party that it has complied with its obligations under this clause 16.5(a) regarding the return or the destruction of Confidential Information.
(b) The return or destruction of Confidential Information by a party does not release that party from its obligations of confidence under this clause 16.5.
(c) Notwithstanding clause 16.5, a party may retain a copy of the other party's Confidential Information which the party is required to retain by law, or which the party is required to retain for its own reasonable internal credit, risk, insurance, taxation or record keeping purposes, provided that the party must comply with the provisions of this clause 16 (other than clause 16.5) in respect of such information retained.
Neither party may make any public statements or issue any press release concerning or relating to this Agreement or its relationship with the other party unless it has first obtained the written consent of the other party however nothing in this clause 16.5 prevents Webjet Business Travel from publishing (on Webjet Business Travel's website or otherwise) that Client is a client of Webjet Business Travel who uses the Agent OS Platform and/or the Webjet Business Travel Services.
Each party must comply with all applicable laws (including the Privacy Act) in dealing with any Personal Information. Without limiting the previous sentence, Webjet Business Travel will at all times, collect, use, hold, destroy and disclose Personal Information in accordance with its Privacy Policy.
(a) Webjet Business Travel acknowledges the Modern Slavery Act 2018 (Cth) (together, Modern Slavery Laws).
(b) Webjet Business Travel shall use its best endeavours to ensure any supply chain provider complies with all relevant laws relating to combating modern slavery and agrees to notify Client as soon as reasonably practicable after becoming aware of any breach of this clause by Webjet Business Travel.
(a) Webjet Business Travel must comply with all applicable Anti-Corruption Laws and must ensure that it and its Personnel do not:
(i) offer, give, pay, promise to pay, request, accept, receive or authorise the payment of any bribes, kickbacks, influence payments or other unlawful or improper inducements to or from any person (in whatever form) in connection with this Agreement; or
(ii) enter into any business agreement with any employee, Council member or agent of Client, other than an agreement they make as a representative of Client.
(iii) and Webjet Business Travel must promptly notify Client if Webjet Business Travel becomes aware of a breach, or suspected breach, of any of its obligations under this clause 19.
(b) For the purposes of this clause 19, Anti-Corruption Laws means the Australian Criminal Code Act 1995 (Cth) and any other law which has as its objective the prevention of corruption.
(a) Webjet Business Travel will take reasonable steps to:
(i) ensure the security and integrity of the Platform; and
(ii) implement technical and organisational measures (in accordance with generally accepted industry practice) to protect against the misuse, loss or unauthorised disclosure of Client Data.
(b) Provided Webjet Business Travel complies with its obligations under clause 20(a) and the Loss does not arise out of the dishonesty or fraud of Webjet Business Travel or any of its Personnel, Webjet Business Travel will not be liable for any Loss suffered by Client which arises out of or in connection with:
(i) any computer viruses or malware being transferred by or obtained as a result of the use of the Platform; or
(ii) any data or security breach by a third party.
(c) Client acknowledges that it is solely responsible for the accuracy and integrity of its own data (including Client Data).
(d) If Webjet Business Travel becomes aware of or suspects:
(i) any unauthorised access to or use of, or misuse, damage or destruction to, any part of the Client Data; or
(ii) any other issue that could potentially compromise the integrity or reliability of the Client Data,
(Data Incident), then Webjet Business Travel will promptly notify Client of the Data Incident, including all known details of the Data Incident, and a list of actions taken by Webjet Business Travel to mitigate the impact of the Data Incident.
(e) As soon as possible after making a notification under clause 20(d), Webjet Business Travel will conduct an investigation into the Data Incident and notify Client of its findings in respect of the cause of the Data Incident and propose remedial action to mitigate the impact of the Data Incident.
(f) Client will comply with all reasonable directions of Webjet Business Travel relating to the Data Incident within the timeframes specified by Webjet Business Travel.
Either party may terminate this Agreement by giving the other party at least 30 Business Days' written notice if the other party:
(a) commits a material breach of this Agreement and:
(i) the breach is not capable of remedy; or
(ii) the breach is capable of remedy, but the other party fails to remedy the breach within 10 Business Days of receiving notice from the non-breaching party requiring it to do so;
(b) ceases to carry on business or threatens to cease trading in a normal manner;
(c) suffers an Insolvency Event; or
(d) assigns or novates its obligations under this Agreement (or purports to do so) otherwise than in accordance with this Agreement.
Lite Subscription Only:Notwithstanding clause 21.1, a Client on a Lite Subscription may terminate this Agreement for any reason or no reason by providing fourteen (14) days' written notice to Webjet Business Travel.
Webjet Business Travel may terminate a Lite Subscription for convenience by providing thirty (30) days' written notice to the Client.
(a) Webjet Business Travel may, in its absolute discretion and without liability, suspend access to the Platform and/or the whole or any part of the Webjet Business Travel Services for such period as it thinks fit if:
(i) it considers suspension necessary for safety reasons or to prevent or abate an emergency situation or hazard;
(ii) it is required to do so by law;
(iii) Client has failed to pay an amount due to Webjet Business Travel by the due date;
(iv) an Unforeseen Event occurs; or
(v) a technical issue or fault occurs (including any error or malfunction in any telecommunications carriage service) which impacts the operation of the Platform.
(b) Client will not be entitled to any refund of Fees in the event of suspension by Webjet Business Travel.
Upon expiry or termination of this Agreement for any reason:
(a) Client's right to access and use the Platform and the Webjet Business Travel Services will cease;
(b) each party is released from its obligations to further perform this Agreement;
(c) each party retains its accrued rights and remedies;
(d) Client must return to Webjet Business Travel all items of Webjet Business Travel's property in its possession or control (and if such property is not returned in a timely manner, will permit Webjet Business Travel to recover that property from Client); and
Pro, Premium & Enterprise Plans:(e) without limiting any other rights of Webjet Business Travel, Client must pay the Fees for the Platform and the Webjet Business Travel Services provided up to the end of the Initial Contract Term or the end of the Renewal Contract Term as specified in Item 5 of the Key Information Schedule, whichever applies (and Client will not be entitled to any refund of Fees paid prior to the date of termination or expiry).
Lite Subscription Only:(e) the Client must pay all outstanding transaction-based fees, supplier charges, merchant fees or other amounts incurred up to the effective termination date. No subscription fees are payable or refundable.
(a) Webjet Business Travel may, upon the provision of reasonable notice, undertake an audit of clients on subscription plan in order to assess:
(i) the number of Authorised Users accessing the Platform;
(ii) other particulars regarding Client's use of the Platform to determine the most appropriate Subscription Package for Client; and
(iii) Client's (and Authorised Users') compliance with this Agreement.
(b) Client agrees to provide Webjet Business Travel with all necessary information, records and assistance in order to carry out the audit described in clause 22(a).
If a dispute arises under or in connection with this Agreement (Dispute) which is not able to be resolved by the parties' Contact Persons within 10 Business Days of such Dispute arising, the nominated senior executive officer of each party will promptly meet and discuss the Dispute in good faith with a view to resolving such Dispute.
(a) If any Dispute is unable to be resolved in accordance with clause 23.1 within 10 Business Days, the parties agree to endeavour in good faith to settle the Dispute by mediation administered by the Resolution Institute before having recourse to arbitration or litigation.
(b) The mediation will be conducted in accordance with the Mediation and Conciliation Rules of the Resolution Institute (Rules) which set out the procedures to be adopted, the process of selection of the mediator and the costs involved and the terms of those Rules are taken to be incorporated into this Agreement.
The parties to a Dispute will continue to perform their respective obligations under this Agreement pending the resolution of the Dispute under this clause 23.
Nothing in this clause is to be taken as preventing any party to a Dispute from seeking interlocutory relief in respect of such a Dispute.
Unless otherwise agreed between the parties, each party will bear its own costs of dispute resolution pursuant to this clause 23.
(a) If an Unforeseen Event occurs, the party affected (Affected Party) must notify the other party and provide full particulars of the circumstances giving rise to the Unforeseen Event.
(b) For so long as the Unforeseen Event subsists, the Affected Party is not liable to the other party for any failure or delay in performing its obligations under this Agreement (other than a payment obligation) to the extent it is affected by the Unforeseen Event, for the duration of the Unforeseen Event.
(c) The Affected Party must:
(i) use its reasonable endeavours to remove, overcome or mitigate the effects of that Unforeseen Event; and
(ii) keep the other party regularly informed as to the steps or actions being taken to achieve this.
(d) If an Unforeseen Event continues for more than 60 days, Webjet Business Travel may terminate this Agreement immediately by giving written notice to Client.
Any variation to this Agreement will take effect from Ten (10) Business Days after the Client has been notified in writing unless otherwise agreed between the parties.
Nothing in this Agreement is to be construed as establishing a contract of employment between the parties or creating a partnership, joint venture or other relationship between them. Neither party has the right, power or authority to bind the other party in any manner.
Webjet Business Travel may contract with third parties for the performance of its obligations under this Agreement, provided that it will remain liable for the performance of its obligations under this Agreement.
(a) Except as provided otherwise in this Agreement, any notice, demand, consent, approval or communication under this Agreement (Notice) must be:
(i) in writing, in English and signed by a person duly authorised by the sender; and
(ii) hand delivered or sent by prepaid post or email to the recipient's address as specified in Item 1 or 2 of the Key Information Schedule, as varied by any Notice given by the recipient to the sender.
(b) A Notice given in accordance with clause 25.4(a) takes effect when taken to be received (or at later time specified in the Notice), and is taken to be received:
(i) if hand delivered, on delivery;
(ii) if sent by pre-paid post, on the fifth Business Day after the date of posting (or on the tenth Business Day after the date of posting if posted to or from a place overseas; and
(iii) if sent by email, one hour after it is sent by the sender unless the sender receives a report of an error or delay in delivery, but if the delivery, receipt or transmission is not on a Business Day in the place to which the Notice is sent, the Notice is taken to be received on the commencement of the next Business Day in that place.
This Agreement constitutes the entire agreement between the parties as to its subject matter and supersedes all prior representations and agreements in connection with that subject matter.
A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
If a provision of this Agreement or part thereof is illegal, void or unenforceable, then that provision (or relevant part) may be severed without affecting the legality or enforceability of any other provision of this Agreement.
Client must not assign, novate or otherwise transfer its rights and/or obligations under this Agreement without Webjet Business Travel's prior written consent.
(a) Webjet Business Travel may assign, transfer or novate its rights and/or obligations under this Agreement by prior written notice to Client (and Client will do all things reasonably required to give effect to such notice).
(a) This Agreement may be executed in any number of counterparts, each of which will be an original but such counterparts together will constitute one and the same instrument.
(b) The parties acknowledge that this Agreement may be exchanged and executed entirely or partially by electronic means, and that an electronic representation of a signature (including a scanned copy of a signature first made on paper) will be conclusive evidence of a party's execution of this Agreement and intention to be bound by its terms.
Each person who signs this Agreement on behalf of a party under a power of attorney or as an authorised representative of a party declares and warrants that he or she is not aware of any fact or circumstance that might affect his or her authority to do so.
Each party acknowledges that it has been given the opportunity to obtain independent legal advice prior to entering into this Agreement as to the terms and effect of this Agreement.
This Agreement is governed by the laws in force in Victoria, Australia, and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them.
Each party will, at its own expense and when requested by the other party, promptly do, sign and deliver everything reasonably required for the purposes of and to give full effect to this Agreement, its provisions and any transactions contemplated by it.
Each party will bear its own costs in relation to the negotiation, preparation and execution of this Agreement and any further document required.
In this Agreement, capitalised terms have the meaning as set out below unless the context requires otherwise:
Acceptance Tests means the acceptance tests as set out in the Implementation Plan.
Additional Services has the meaning given in clause 6.3(a).
Agreement means this agreement, including any schedules and annexures, and includes the Key Information Schedule.
Authorised User means those Personnel of Client who are authorised by Client to use the Platform.
Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Victoria.
Client Data means all material, information and data which:
(a) Client inputs to the Platform;
(b) is generated as a result of Client's use (or an Authorised User's use) of the Platform; or
(c) Client otherwise makes available to Webjet Business Travel in connection with the Platform or the Webjet Business Travel Services.
Confidential Information means, in relation to a party, all information or knowledge which:
(a) is by its nature confidential (including the terms of this Agreement);
(b) is designated by the disclosing party as confidential; or
(c) the recipient ought reasonably to know is confidential,
but does not include:
(d) information or knowledge that is in the public domain otherwise than as a result of a breach of this Agreement or any other obligation of confidence;
(e) information or knowledge that is independently developed by the recipient or rightfully obtained from a third party; or
(f) information or knowledge that is already known by the recipient, independently of its involvement in this Agreement or its interaction with the other party and free of any obligation of confidence.
Contact Person means the person nominated by each party as its contact person, as set out in items 1 and 2 of the Key Information Schedule.
Contract Term means the Initial Contract Term or a Renewal Contract Term, as the context requires.
Default Rate means the rate fixed from time to time under the Penalty Interest Rate Act 1983 (Vic).
Developed IP means any Intellectual Property Rights created, written or brought into existence by or on behalf of Webjet Business Travel in connection with or for the purposes of providing the Platform and/or the Webjet Business Travel Services, but excluding Client Data and either party's Background IP.
Fees means the fees payable by Client to Webjet Business Travel for the Platform and the Webjet Business Travel Services, as set out in Schedule 2 of the Webjet Business Travel Service Agreement, including without limitation any booking fees calculated as a percentage of the gross total cost per booking made through the Platform inclusive of all taxes such as GST, duties, and charges.
GDS meaning the Global Distribution System (either Travelport, Amadeus or Sabre).
GST has the meaning given in the GST Law.
GST Law has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
IATA licence meaning the ability to access and book products or services that are compliant with international regulations, standards, and best practices.
Implementation means the delivery, installation, customisation and deployment of the Platform in accordance with the Requirements and Implement has a corresponding meaning.
Implementation Schedule means the schedule referred to in clause 5.1(a), as may be updated by the parties by agreement in writing from time to time.
Indirect Loss means any Loss not arising naturally (i.e., according to the usual course of things) as a result of a breach of this Agreement, whether or not such Loss may reasonably have been in the contemplation of the parties at the time they made this Agreement as the probable result of the relevant breach. Without limiting the previous sentence, Indirect Loss includes loss of profits, loss of revenue, loss of goodwill, loss of business, loss of data, loss of opportunity, loss of anticipated savings, pure economic loss, loss of value of equipment, expectation loss and wasted overheads.
Initial Contract Term means the period specified as such in Item 5 of the Key Information Schedule.
Insolvency Event means a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or the occurrence of any event that has a substantially similar effect to any of these events.
Intellectual Property Rights means all intellectual property rights throughout the world, whether registered or unregistered, including rights in respect of copyright, designs, circuit layouts, trademarks, know-how, confidential information, patents, inventions and discoveries and any right to apply for registration of such rights.
Key Information Schedule means the key information schedule set out in the Webjet Business Travel Services Agreement.
Lite Subscription means a non-subscription access model under which the Client is granted access to the Platform without payment of any recurring subscription fee, and where fees (if any) apply only on a transaction, booking or usage basis.
Loss means all liabilities, losses, damage, costs and expenses (including legal costs on a full indemnity basis) suffered or incurred by any person whether arising in contract or tort (including negligence), under any statute or under any other cause of action.
Personal Information has the meaning given in the Privacy Act.
Personnel means the officers, employees, agents and contractors (including subcontractors) of a party.
Planned Outage means a scheduled interruption to the availability of the Platform.
Platform means the Webjet Business Travel's cloud based platform as described in paragraph A of clause 1 of this Agreement.
Privacy Act means the Privacy Act 1988 (Cth).
Renewal Contract Term means a period of 12 months commencing on the day following the end of the previous Contract Term.
Requirements means the functional, technical and other requirements for the Platform as set out in the Implementation Plan.
Service Levels means the service levels applicable to the Webjet Business Travel Services, as set out in the Webjet Business Travel Travel Service Level Agreement.
Special Fares means fares, rates or pricing arrangements for travel products (including air, accommodation, car rental or other travel services) that are made available to Webjet Business Travel by a supplier on a private, negotiated, promotional or non-public basis, including net or confidential fares, and which may be offered, packaged or applied by Webjet Business Travel at its discretion as part of the Services.
Start Date means the date specified in item 3 of the Key Information Schedule.
Subscription Term has the meaning given in clause 4.1.
Territory means the territory specified in Item 8 of the Key Information Schedule.
Third Party IP means all Intellectual Property Rights made available in connection with this Agreement that are owned by a third party.
Third Party Service has the meaning given in clause 8(a).
Third Party Travel Service Fees means any fees, charges or costs imposed by or payable to a third party in connection with the supply, fulfilment or facilitation of travel services provided to the Client, including without limitation airfare-related fees, accommodation or car rental charges, merchant or payment processing fees, distribution or booking fees, supplier surcharges, penalties, or other amounts charged by travel service providers on a per-transaction, booking or usage basis.
Total Transaction Value means the total value of bookings (air and land) including all taxes such as GST, duties, and charges.
Unforeseen Event means any event beyond the reasonable control of a party and includes:
(a) any outage, interference or disturbance to the Platform (other than a Planned Outage);
(b) fire, flood, earthquake or acts of God; or
(c) strikes, industrial disputes, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, pandemic, epidemics, quarantines, government restrictions, public health or safety emergency, embargoes and other similar governmental action (provided it is not directed only at that party).
Update means any new version, new release, amendment or update to the Platform.
Webjet Business Travel Services means the services that Webjet Business Travel agrees to provide to, or perform for Client, under this Agreement, being access to and use of the Platform, and which may include, (for additional fees or charges), the services described in the Key Information Schedule.
In the interpretation of this Agreement, unless the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) headings are for convenience only and do not affect interpretation of this Agreement;
(c) where any word or phrase is defined, its other grammatical forms have corresponding meanings;
(d) the meaning of general words is not limited by specific examples introduced by 'including', 'for example' or similar expressions;
(e) a reference to:
(i) a clause, paragraph, schedule or appendix is a reference to a clause, paragraph, schedule or appendix of this Agreement;
(ii) a person includes a natural person, Clientship, body corporate, association, trust, governmental or local authority or agency or other entity;
(iii) a legislative provision or legislation (including subordinate legislation) is to that provision or legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
(iv) a party to a document includes that party's legal personal representatives, successors and permitted assigns;
(v) "dollars" or "$" is a reference to Australian currency; and
(vi) this or any other document includes the document as novated, varied or replaced;
(f) no rule of construction will apply to a clause to the disadvantage of a party merely because that party drafted or put forward the clause or would otherwise benefit from it; and
(g) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.
Webjet Business Travel Terms of Service V1.05