Partner Terms and Conditions
Last Revised on 25.03.2023
Introduction
The Partner Terms and Conditions describe the legal relationship between WeGoTrip OÜ ("WeGoTrip") and the Cooperation Partner ("Partner"). Partner and WeGoTrip may be referred to individually as a "Party" or collectively as "Parties".
BACKGROUND
(A) WeGoTrip provides a service ("Service") through which customers can view and book various travel services including tours, attractions, and other touristic activities ("Activities"). WeGoTrip provides the Service through various websites and mobile applications it owns and operates under the WeGoTrip brand ("Platform"), and through the websites, apps, platform, tools or other devices of third parties.
(B) The Partner owns, supervises, manages, and operates one or more website(s), apps, tools and or other devices ("Partner Platform") or is a Travel Agency that books touristic activities for and on behalf of its customers.
(C) The Partner and WeGoTrip wish to cooperate and make the Service available on the Partner Platform for the customers and visitors of the Partner Platform or the Travel Agency in accordance with the terms and conditions set out in this Agreement.
TERMS AGREED
1. DEFINITIONS AND INTERPRETATIONS
1.1 The terms below shall have the meanings assigned to them.
"Activity" or "Activities" has the meaning as set out in the Background section.
"Affiliate(s)" means for WeGoTrip and the Partner any company that is an affiliate within the meaning of the following sections.
"Agreement" means these Terms and Conditions.
"API" means Application Interface Protocol that connects the Platform with the Partner platform, as made available by WeGoTrip.
"Authorised Recipients" has the meaning as set out in clause 8.1.
"Booking System" means the booking system used by WeGoTrip in connection with the Service.
"Brand Elements" means the trademarks, service marks, logos, and other distinctive brand features of WeGoTrip.
"Completed Booking" means a booking request by a Partner customer which has resulted in the actual provision of services by the Supplier, as confirmed to WeGoTrip by the Supplier.
"Confidential Information" means the terms of this Agreement and secret or confidential commercial, financial, marketing, technical or other information, know-how, trade secrets and other information relating to either Partner or WeGoTrip (including the same categories of information relating to each Party´s Affiliates) and its customers and connected to the subject matter of this Agreement, in any form or medium whether disclosed orally or in writing before or after the effective date, together with any reproductions of such information in any form or any part of this information.
"Content" means all (descriptive) information of Activities available on the WeGoTrip website including but not limited to activity information and descriptions, guest reviews, meta data, details of facilities and (cancellation/no show) policies and general terms of the activities (including any translations thereof) and photos, video, pictures, but excluding rates and availability (including any updates, modifications, replacements, additions or amendments).
"Customer Fee" The fee actually paid by a Partner Customer (less any fees repaid to the Partner Customer) for a Completed Booking.
"Data Protection Legislation" shall be defined as set out in clause 8.5.
"WeGoTrip Data" means the Intellectual Property Rights of WeGoTrip and the Content as provided to the Partner under this Agreement and such other information from time to time owned or used by WeGoTrip or embodied or included in Platform or made available by WeGoTrip to the Partner (e.g. rates and availability).
"WeGoTrip Partner ID" means an identification code used by WeGoTrip to associate customers with WeGoTrip partners.
"Intellectual Property Rights" means any patent, copyright, inventions, database rights, design right, registered design, trademark, trade name, brand, logos, service mark, know-how, utility model, unregistered design or, where relevant, any application for any such right, know-how, trade or business name, domain name (with whatever (country code) top-level domain, e.g. .com, .app) or other similar right or obligation whether registered or unregistered or other industrial or intellectual property rights subsisting in any territory or jurisdiction in the world.
"Partner Commission" means the commission payable to the Partner as set out in clause 6.
"Partner Customer" means either (i) if the Partner accesses the Service via links to the Platform, a customer who has an unexpired cookie that contains the Partner's WeGoTrip Partner ID, and who has no newer cookie from another WeGoTrip partner or WeGoTrip; or (ii) if the Partner accesses the Service via API, a customer who makes a booking for an Activity through the Partner Platform via the Booking System; or (iii) if the Partner is a Travel Agency the customer for whom and on whose behalf the Travel Agency makes a booking through the provided link.
"Partner Platform" has the meaning as set out in the Background section.
"Personal Data" shall be defined as per the EU General Data Protection Regulation 2016/679 ("GDPR") as set out in clause 8.5.
"Platform" has the meaning as set out in the Background section.
"Service" has the meaning as set out in the Background section.
"Supplier" means a supplier who makes Activities available for bookings through the Service.
"Travel Agency" has the meaning as set out in the Background section.
1.2 The headings in this Agreement will not affect its interpretation.
2. WEGOTRIP´S OBLIGATIONS
2.1 WeGoTrip will pay the Partner as set out in clause 6 and grant to the Partner a license in accordance with clause 4.
2.2 All customer service related issues and questions in respect of the Service will be handled by WeGoTrip. If Partner opts to and is granted by WeGoTrip to access the Service via API, Partner will be responsible for customer service requests that arise prior to the Partner transferring the customer´s actual booking request to the Booking System.
2.3 If a booking is made by a Partner Customer or in the name and on behalf of a Partner Customer by a Travel Agency, WeGoTrip and the Supplier shall be solely responsible for the transmission of the relevant booking details to the Partner Customer. Only WeGoTrip and/or the Supplier shall (i) send the subsequent (email) confirmation to the Partner Customer, and (ii) handle the relationship with the Partner Customer through completion of the Activity.
3. PARTNER´S OBLIGATIONS
3.1. General undertakings
3.1.1 The Partner shall display the Content on the Partner Platform in a manner consistent with this agreement and shall not programmatically evaluate and extract information (including guest reviews) from any part of the WeGoTrip website (e.g. screen scrape). The Partner will (i) ensure that the contents of the Partner Platform are accurate, (ii) keep the Partner Platform up-to-date and error-free, and (iii) immediately correct errors (if any) pointed out by WeGoTrip.
3.1.2. The Partner shall not make bookings or reservations using the Platform or the Partner Platform for the purpose of reselling them.
3.1.3. The Partner shall not publish anywhere on the Partner Platform any statement that the Partner Platform is part of, endorsed by, or an official website of WeGoTrip.
3.1.4. The Partner shall not directly or indirectly offer tours, attractions, and other touristic activities via the Partner Platform except through the Service.
3.1.5. The Partner agrees to remove or correct the Content or parts thereof stored by the Partner at any time upon WeGoTrip's reasonable request, at Partner's own expense.
3.1.6. The Partner shall not exploit or use the Content for any purpose or in any manner, including through third party platforms, except as expressly allowed in this Agreement.
3,1.7. The Partner shall not in any way register, apply for, merchandise, sell, offer, solicit, (sub-)licence, provide, grant access, forward, publish or distribute domain names confusingly similar to Brand Elements. If the Partner infringes this obligation, it must transfer and register the corresponding domain name to WeGoTrip upon WeGoTrips request.
3.1.8. The Partner insures that, when presenting price comparisons on his website(s), service prices of competitors (direct or indirect) of WeGoTrip will be displayed error-free, accurately and non-misleadingly.
3.1.9. The Partner shall not engage in any misleading, illegitimate or fraudulent activities (e.g. misleading Partner Platform in the appearance of official websites, cookie stuffing, cookie dropping) within the scope of this Agreement.
3.1.10. During the term of the Agreement, the Partner agrees and warrants that it shall not (and its Affiliates shall not) conduct, undertake, use, perform or exercise (or authorize any third parties conduct, undertake, use, perform or exercise) (a) paid search, Search Engine Marketing ("SEM") or Search Engine Optimization ("SEO") activities, or (b) any other form of online targeted advertising (whether directly, indirectly, or via third party platforms) related to:
(i.) the Service
(ii.) the Platform
(iii.) the Content
(iv.) WeGoTrip Data
(v.) Brand Elements
(vi.) the Supplier brands (unless the owner of such Supplier brand has given its prior written consent to the Partner for the use of that specific Supplier brand).
3.1.11. Driving traffic to the Platform from paid search and any other advertising on the Partner Platform not under the direct control or ownership of the Partner is prohibited.
3.1.12. The Partner is not allowed to use the Content on websites that do not belong to the Partner and/or websites that contain inappropriate or unlawful content of any sort. This includes advertising banners. If the Partner implements the Content on Partner Platform, it may place links on its personal social media pages (such as Facebook, Instagram and YouTube). The Partner hereby represents and warrants to WeGoTrip that for the term of this Agreement:
(i.) The Partner has all necessary rights, title to, power and authority to own, operate and use the Partner Platform (including the relevant domain name(s)) and to include the link, the micro site or
the connection (as applicable) on the Partner Platform;
(ii.) The Partner Platform shall not (a) violate spamming regulations, public policy and morals, or (b) contain any inappropriate, improper or unlawful content, reference, material, information, links or banners (e.g. in respect of porn or racism), defamatory statements, elements which violate the privacy of third parties or are abusive, offensive or obscene;
(iii.) The Partner holds and has complied with all permits, licenses and other governmental authorisations necessary for conducting, carrying out and continuing its operations and business and will provide upon request any documentation WeGoTrip may need to fulfil legal requirements, and
(iv.) The Partner is an independent contractor for all purposes, and will be responsible and liable for its own taxes, social contributions and all other tax related matters. The Partner is obliged to submit complete and accurate information about its identity and contact information and keep this information up to date. Partners established in Germany are obliged to submit their VAT IDs.
3.1.13. The Partner agrees and acknowledges that if it breaches any obligation in this clause 3.1, WeGoTrip may in its sole discretion (i) terminate this Agreement pursuant to Clause 7.3, (ii) withhold any payments due to Partner pursuant to this Agreement, without the accrual of interest, or (iii) seek any other legal or equitable remedy available to it.
3.1.14. Clause 3.1.13 (ii) also applies in case of uncertainty about the identity and contact information about the Partner until the uncertainty is resolved. The Partner is liable to WeGoTrip for any financial losses that WeGoTrip might incur as a consequence of inaccurate or incomplete information submitted by the Partner and entitled to withhold payments to the Partner in compensation.
3.2. Relation to Suppliers. The Partner agrees not to take, or omit to take, any action which may affect or interfere with WeGoTrip´s relationship with the Suppliers, including (i) by actively soliciting an agreement of any kind with any Supplier; (ii) by performing activities that may cause WeGoTrip to be excluded from the process of booking or cause a Supplier to terminate its relationship with WeGoTrip or reduce its business with WeGoTrip; or (iii) by selling Suppliers any sort of advertisement or preferential treatment on the Partner Platform or in the Travel Agency. The Partner may not use contact information received by WeGoTrip to contact or to communicate directly with Suppliers for any purpose.
3.3. Relation to Customers. The Partner acknowledges that all payment transactions in relation to the Service are carried through WeGoTrip's payment providers, selected by WeGoTrip at its sole discretion. The Partner will forward any data (through the appropriate API, if applicable) relating to reservations and bookings including payment information obtained from a Partner Customer to WeGoTrip. The Partner may only use such data in accordance with the applicable laws and may not use it in any way not permitted by this Agreement.
4. LICENSES TO THE PARTNER
4.1. Data License. If Partner has chosen and was granted by WeGoTrip to access the Service via API, clause 4.1.1 is applicable. If Partner has chosen to access the Service via links to the Platform, clause 4.1.1 is not applicable.
4.1.1. Subject to the Partner's full compliance with its obligations under this Agreement, WeGoTrip hereby grants Partner for the term of the Agreement a non-exclusive, non-transferable and non-sublicensable right to access, store and display the Content on the Partner Platform, as provided by WeGoTrip. The Partner is only allowed to download Content after prior written approval from WeGoTrip.
4.1.2. The Partner shall use the Content only in accordance with this Agreement and shall not use the Content in any way or for any purpose that are not expressly permitted by this Agreement. In particular, the Partner must not, and the Partner must not allow its customers, visitors or any other third party, to, in any way:
i. incorporate Content as the primary content of the Partner Platform;
ii. copy, store, cache, syndicate, republish, or create a database of Content, in whole or in part, directly or indirectly, except as required for Partner to perform its obligations under the Agreement;
iii. transfer, sell, lease, lend or otherwise grant or attempt to grant rights in or access to the Content to any third party;
iv. edit, modify, filter, change the order of, suppress, or replace any part of the Content, including by intermixing data from sources other than WeGoTrip, except as otherwise agreed by the Parties in writing;
v. remove any copyright, trademark or other proprietary rights notices contained in the Content;
vi. display Content to any third party other than its customers and visitors;
vii. use any Content (including user ratings) to advertise its own services or that of a third party without the prior written consent of WeGoTrip;
viii. take any action relating to the Content on behalf of any of its customers and visitors, including making or causing WeGoTrip to make reservations or bookings, without that customer's permission;
ix. restrict or interfere with the use of the Service by WeGoTrip's other partners;
x. use the Content or the Service for purposes of monitoring the availability, performance, or functionality of any of WeGoTrip's products and services, or for any other benchmarking purposes;
xi. where Content is accessed through an account with WeGoTrip, create (a) serial accounts for disruptive or abusive purposes or (b) accounts with third party names;
xii. use robots, spiders, crawlers, or any other device to retrieve or index any Content for any unauthorized purpose; or
xiii. transmit any viruses, worms, harmful code, or any other item of a destructive nature.
4.1.3. Unless otherwise agreed in writing by WeGoTrip, Partner may not (i) sublicense the rights granted hereunder, (ii) allow any third party to access the Service, either by link or API. The Partner shall not sell, disclose, or distribute the Content to any third party for price/availability purpose or otherwise or any search engine or similar.
4.2. Brand Elements
5.4.2.1. WeGoTrip hereby grants Partner for the term of the Agreement a non-exclusive, non-transferable and non-sublicensable right to display the Brand Elements solely on the Partner Platform and provided that the Partner does not:
i. display the Brand Elements in any way that (a) implies a relationship or affiliation with, sponsorship, or endorsement by WeGoTrip other than according to this Agreement; (b) can be reasonably interpreted to suggest editorial content has been authored by or represents the views or opinions of WeGoTrip; or (c) disparages WeGoTrip, any of its products or services, the Suppliers, or customers;
ii. have a Brand Element as the largest or most prominent logo anywhere on the Partner Platform;
iii. display a Brand Element in a manner that is misleading, defamatory, or infringing; or
iv. remove, distort, or alter any element of a Brand Element.
4.2.2. In the event of a violation of clause 4.2.1, the Partner shall promptly comply at its own cost with any request from WeGoTrip to make changes or alterations to any aspect or element of the Partner Platform.
4.3 In no event shall WeGoTrip be liable for any acts or omissions
regarding Content that its Suppliers have uploaded on the Platform. This
applies in particular to any possible IP-rights infringements of
Suppliers.
5. BRANDING AND PROMOTIONAL ACTIVITIES
5.1. The Parties agree to cooperate with each other in a timely manner in order to maximize the success of the business relationship.
5.2. The Partner shall not do anything that may bring WeGoTrip or its Affiliates into disrepute or may damage, defame, or otherwise have a detrimental effect on WeGoTrip or its Affiliates. The Partner shall ensure that the look and feel of the Partner Platform, including the color scheme, composition, typefaces, design, layout, logos, features, and elements, are and remain sufficiently and substantially distinct from the look and feel of the Platform.
5.3. The Partner shall promptly comply at its cost with any reasonable request from WeGoTrip to make changes or alterations to any aspect or element of the Partner Platform that is or could be regarded as confusingly or significantly like any element of the Platform.
5.4. The Parties agree to perform the promotion and marketing activities with following restrictions:
5.4.1 No double serving or cloaking. The Partner Platform shall not be (directly or indirectly) linked to the Platform due to double serving or any similar technique or method. The Partner shall not (directly or indirectly) make the Partner Platform, the Content, or the Service available to third party platforms with the intention or purpose of misleading or deceiving human editors, search engine spiders, web-crawlers, or meta search engines (including similar tools or engines) of third party platforms in order to give the Partner Platform a higher ranking or display position within the third party platform that it would have otherwise achieved absent such technique or method.
5.4.2 The Partner agrees not to specifically target the WeGoTrip brand directly through keyword purchases that use WeGoTrip's intellectual property rights. Unless otherwise agreed in writing with WeGoTrip the Partner is not authorized (directly or indirectly) to purchase, acquire, use, employ or integrate terms or keywords (including variations and misspellings) that are identical or strikingly similar to those used by WeGoTrip or related internet-domain names (for example WeGoTrip.com (independent of (country-code) Top-Level-Domain)) in association with advertising tactics through paid search entries or other forms of online-advertising on platforms of third parties.
5.4.3 The Partner agrees to only advertise or promote the Service in accordance with the terms and conditions set forth in this agreement. All advertisement or promotion not explicitly allowed by the terms and conditions set forth in the Agreement requires WeGoTrips prior written consent. Partner is especially not entitled to use any physical advertising material (including flyers, posters, posts in magazines and similar material) without WeGoTrips prior written consent.
6. PARTNER COMMISSION
6.1. For each Completed Booking made by a Partner Customer, WeGoTrip will pay the Partner a commission ("Partner Commission"), if agreed.
6.2. To calculate the Partner commission, all transitions made to the WeGoTrip website via links containing the partner identifier assigned to the Partner are accepted. This takes into account sales of travel services made from the personal devices of users within 30 days from the date of the first transition of the Partner Customer to the WeGoTrip website. Accounting for clients is based on cookies installed in users' browsers. The commercial terms of the Partner Commission are calculated as 30% for Activities without tickets and 20% for Activities with tickets..
6.3. If a Partner Customer raises a claim for a refund, any Partner Commission related to the affected Completed Booking will be suspended until the claim is dropped or definitely dismissed. If the affected Supplier makes a refund to the Partner Customer (as decided by the Supplier), WeGoTrip will deduct the commission relating to that Completed Booking from a subsequent commission payment to Partner. In the event such claims of Partner Customers cause a delay in a Partner Commission payment, no interest will be added to such payment to the Partner.
6.4. Payment of commission to the Partner is carried out monthly within 10 working days from the moment the Partner sends a request for payment. WeGoTrip creates a self-billing invoice on behalf of the Partner. In the event the amount of the Partner Commission due to the Partner at that time is less than $50, WeGoTrip will report the amount due to the Partner, but may postpone payment (without the accrual of interest) until the earlier of (i) the month when the total Partner Commission due to Partner is $50 or more, and (ii) termination of this Agreement.
6.5. Payments will be wired to the Partner account on file with WeGoTrip, and the Partner will be notified via e-mail to the address indicated for accounting purposes in the Partner's account information.
6.6. WeGoTrip's self-billing invoice is the basis for any payment. The Partner must raise a claim for an alleged inaccuracy of the self-billing invoice no later than thirty (30) days after the date of the self-billing invoice. If no claim has been raised within that period, the self-billing invoice shall be deemed to have been accepted.
6.7. The systems, books, and records of WeGoTrip (including emails) shall be considered conclusive evidence in respect of the amount of the Partner Commission due to the Partner under this Agreement.
6.8. WeGoTrip reserves the right to reissue the self-billing invoice.
6.9. If applicable, the reverse charge mechanism will be used and the Partner will be liable for the payment of the applicable taxes.
7. TERM AND TERMINATION
7.1. This Agreement comes into effect upon execution and will remain in effect until terminated according to its terms.
7.2. Either Party may terminate this Agreement at any time and for any reason upon thirty (30) days prior written notice to the other Party.
7.3. This Agreement shall terminate immediately and automatically in the event of:
7.3.1. The appointment of a receiver or trustee for the benefit of creditors of either Party, or if either Party shall be declared bankrupt or insolvent or shall be subject to any proceedings under the laws relating to bankruptcy, insolvency or the relief of debtors.
7.3.2. The loss by either Party of any necessary government licenses, permits or approvals enabling the Parties to fulfil their obligations under this Agreement.
7.3.3. Breach by either Party of any substantive term of this Agreement as follows: (i) if the breach is not capable of being remedied, upon notice by the non-breaching Party of such breach, or (ii) if the breach is capable of being remedied, ten (10) days after notice by the non-breaching Party, if the breaching Party fails to remedy such breach during this ten (10) day period.
7.3.4. WeGoTrip believes that the Partner violates clause 3.1.9, upon notice by WeGoTrip, if the Partner fails to dispel the suspicion within two days. The decision as to whether the suspicion has been dispelled is at the sole discretion of WeGoTrip.
7.4. If Partner directly or indirectly breaches any covenant, undertaking, restriction, obligation, or warranty in clause 3, WeGoTrip may, in addition to the other remedies set forth in this Agreement or available under law:
(a) suspend its payment obligations under this Agreement with immediate effect; or
(b) retain all Partner Commissions that would have been due to Partner during the period that the Partner is in breach of clause 3 or has not remedied its breach as set out in clause 7.3.3 in full.
7.5. After termination, WeGoTrip will pay Partner any outstanding Partner Commission in accordance with the terms of this Agreement. If the Agreement has been terminated according to 7.3.4, the Partner is not entitled to any payment.
7.6. Upon any termination of this Agreement, Partner must immediately either, as directed by WeGoTrip, (i) return or deliver to WeGoTrip all documentation and other material, including all copies thereof, in Partner's possession or under its control which contain Confidential Information of WeGoTrip, or (ii) destroy all such documentation and other material and confirm in writing to WeGoTrip that the destruction has taken place.
7.7. Upon termination of the Agreement for any reason, all rights granted herein terminate, and the Partner must immediately remove from the Partner Platform and delete all Content, Brand Elements, software, documentation, and other materials received from WeGoTrip.
7.8. The provisions of this Agreement which by their sense and context are intended to survive performance by either or both Parties and the rights deriving from such provisions will survive the completion, expiration, termination or cancellation of this Agreement
8. CONFIDENTIALITY AND DATA PROTECTION
8.1. Each Party:
i. must keep secret and confidential all Confidential Information disclosed to it; and
ii. must not disclose the Confidential Information (other than to its Affiliates, employees, consultants, subcontractors, agents, professional advisers or insurers and their employees, consultants, subcontractors, agents, professional advisers or insurers and any of its or its Affiliates' financiers or potential financiers (the "Authorized Recipients") on a "need to know" basis) except with the prior written consent of the Party whose Confidential Information is being disclosed. Disclosure to any Authorized Recipient will be subject to the Authorized Recipient being bound by obligations equivalent to those set out in this clause 8. The person disclosing Confidential Information to an Authorized Recipient must ensure that such Authorized Recipient complies with such obligations.
8.2. The obligations of confidentiality in this clause will not apply to any information that either Party can show:
(a) is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under this Agreement; or
(b) was in its own written records prior to the disclosure to it of the confidential Information; or
(c) was independently disclosed to it by a third party entitled to disclose the same.
8.3. The obligations of confidentiality in this clause will not prevent either Partner or WeGoTrip from disclosing such Confidential Information where it is required to do so under any applicable law or the rules of any recognized stock exchange or by order of a court or governmental body of authority of competent jurisdiction or a mandatory requirement of any regulatory authority.
8.4. Each Party must establish and maintain such security measures and procedures as are reasonably practicable to provide for the safe custody of any Confidential Information in its possession and to prevent unauthorized access to or use of such Confidential Information. Neither Party may use Confidential Information or reproduce such Confidential Information in whole or in part in any form except as may be required by this Agreement.
8.5. Personal Data shall be defined as per the EU General Data Protection Regulation ("GDPR") or any analogous law in any country which has jurisdiction in relation to the subject matter of this Agreement or any data to be processed under this Agreement ("Data Protection Legislation"). Under this Agreement, Personal Data may be transferred by Partner to WeGoTrip, or Partner may assist in a transfer of Personal Data by a Partner Customer to WeGoTrip, in particular where a booking is made through the API or if Partner is a travel-agency making a booking for and on behalf of a Partner Customer. In case of a booking through a link, anonymous or pseudonymous information such as cookie IDs or WeGoTrip Partner IDs, may be provided to WeGoTrip. The Parties agree that, with regard to such Personal Data (including pseudonymous data) and such transfer, both Parties are independent data controllers and are not data processors or joint controllers within the meaning of the GDPR. In the event that either Party processes any Personal Data contained in the Confidential Information of, or that is otherwise supplied by, the other Party or its Affiliates, such Party hereby agrees to process such Personal Data at all times in compliance with Data Protection Legislation, and to adhere to all applicable requirements for the processing of Personal Data, including, but not limited to:
(a) process Personal Data only for the purposes of providing the services under this Agreement;
(b) process Personal Data only in accordance with the Data Protection Legislation; and
(c) having appropriate operational and technical measures in place to safeguard the Personal Data against any unauthorized access, loss, destruction, theft, use or disclosure.
9. INTELLECTUAL PROPERTY
All Intellectual Property Rights in the Platform and Brand Elements are the property of WeGoTrip or WeGoTrip Affiliates. Upon conclusion of this agreement, WeGoTrip and WeGoTrip Affiliates do not abandon, but explicitly reserve their right of intellectual property, against the Partner or a third party, warranted by a law, a contract, or otherwise (now or in the future).
10. LIABILITY AND DISCLAIMERS
10.1. For non-performance or improper performance of their obligations under this Agreement, the Parties shall be liable in accordance with the Applicable Law.
10.2. WeGoTrip shall be liable for losses caused by the breach of its primary obligations by WeGoTrip, its legal representatives or assistants in performance. Primary obligations are such basic duties which form the essence of the Agreement, which were decisive for the conclusion of the Agreement and on the performance of which Partner may rely. If WeGoTrip breaches its primary obligations through simple negligence, then its ensuing liability shall be limited to the amount which was foreseeable by WeGoTrip at the time the respective service was performed.
10.3. The System and Content are provided on an "as is" and on an "as available" basis. WeGoTrip shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken.
10.4. WeGoTrip makes no express or implied warranties or representations of any kind with respect to the Service, the Booking System, the Platform, the Content or other items offered by WeGoTrip.
11. Non-Solicitation
During the term of the Agreement and for a period of one year from the termination Partner shall refrain, and shall procure that Partner's Affiliates refrain, from:
(a) influencing Suppliers or other third party maintaining a contractual or other business relationship with WeGoTrip or any of its Affiliates to terminate or discontinue such relationship or to reduce the volume of goods or services provided thereunder; or
(b) soliciting or attempting to solicit the service or employment of any current or future employee of WeGoTrip or its Affiliates.
12. EXCLUSIVITY
The cooperation based on this Agreement is non-exclusive for WeGoTrip. Nothing in the Agreement shall prevent WeGoTrip from working with, participating in, or offering any partnership to third parties.
13. FINAL PROVISIONS
13.1. Amendments or additions to this Agreement must be made in writing or in text form.
13.2. Should any provision of this Agreement be or become void or invalid, this shall not affect the validity of the remaining provisions. The Parties shall in such an event cooperate in the creation of terms that achieve such legally valid result as comes closest commercially to that of the invalid provision. The above shall apply accordingly to the closing of any gaps in the Agreement.
13.3. The Partner may not assign or subcontract its rights or duties under this Agreement, in whole or in part, whether by operation of law or otherwise, without the prior written consent of WeGoTrip.
13.4. WeGoTrip may assign and transfer its rights and obligations in connection with this Agreement to WeGoTrip's Affiliates.
13.5. WeGoTrip may change the Service or the general terms and conditions of this Agreement. In the event of a change to the general terms and conditions, WeGoTrip will notify the Partner of the changes to the general terms and conditions in textform (e.g. by e-mail). The changes shall become effective vis-à-vis the Partner and the contractual relationship shall be continued under the changed conditions if the Partner does not object to these changes within six (6) weeks after receipt of the notification of change by written notification to WeGoTrip. The timely dispatch of the objection to WeGoTrip shall suffice to comply with this deadline. In the event of objection, both parties shall have the right to terminate the contract without notice. WeGoTrip will specifically draw the Partner's attention to the aforementioned consequence of a failure to object in the written notification of change.
13.6. This Agreement as well as any claims out of or in connection with this Agreement shall be governed by and construed in accordance with the provisions of German Law under exclusion of its conflict of law rules. The exclusive legal venue for any disputes arising from or in connection with this Agreement shall be the courts for WeGoTrip´s registered office. WeGoTrip may also sue the Partner at the competent courts for the Partner´s registered office.
The Partner Terms and Conditions describe the legal relationship between WeGoTrip OÜ ("WeGoTrip") and the Cooperation Partner ("Partner"). Partner and WeGoTrip may be referred to individually as a "Party" or collectively as "Parties".
BACKGROUND
(A) WeGoTrip provides a service ("Service") through which customers can view and book various travel services including tours, attractions, and other touristic activities ("Activities"). WeGoTrip provides the Service through various websites and mobile applications it owns and operates under the WeGoTrip brand ("Platform"), and through the websites, apps, platform, tools or other devices of third parties.
(B) The Partner owns, supervises, manages, and operates one or more website(s), apps, tools and or other devices ("Partner Platform") or is a Travel Agency that books touristic activities for and on behalf of its customers.
(C) The Partner and WeGoTrip wish to cooperate and make the Service available on the Partner Platform for the customers and visitors of the Partner Platform or the Travel Agency in accordance with the terms and conditions set out in this Agreement.
TERMS AGREED
1. DEFINITIONS AND INTERPRETATIONS
1.1 The terms below shall have the meanings assigned to them.
"Activity" or "Activities" has the meaning as set out in the Background section.
"Affiliate(s)" means for WeGoTrip and the Partner any company that is an affiliate within the meaning of the following sections.
"Agreement" means these Terms and Conditions.
"API" means Application Interface Protocol that connects the Platform with the Partner platform, as made available by WeGoTrip.
"Authorised Recipients" has the meaning as set out in clause 8.1.
"Booking System" means the booking system used by WeGoTrip in connection with the Service.
"Brand Elements" means the trademarks, service marks, logos, and other distinctive brand features of WeGoTrip.
"Completed Booking" means a booking request by a Partner customer which has resulted in the actual provision of services by the Supplier, as confirmed to WeGoTrip by the Supplier.
"Confidential Information" means the terms of this Agreement and secret or confidential commercial, financial, marketing, technical or other information, know-how, trade secrets and other information relating to either Partner or WeGoTrip (including the same categories of information relating to each Party´s Affiliates) and its customers and connected to the subject matter of this Agreement, in any form or medium whether disclosed orally or in writing before or after the effective date, together with any reproductions of such information in any form or any part of this information.
"Content" means all (descriptive) information of Activities available on the WeGoTrip website including but not limited to activity information and descriptions, guest reviews, meta data, details of facilities and (cancellation/no show) policies and general terms of the activities (including any translations thereof) and photos, video, pictures, but excluding rates and availability (including any updates, modifications, replacements, additions or amendments).
"Customer Fee" The fee actually paid by a Partner Customer (less any fees repaid to the Partner Customer) for a Completed Booking.
"Data Protection Legislation" shall be defined as set out in clause 8.5.
"WeGoTrip Data" means the Intellectual Property Rights of WeGoTrip and the Content as provided to the Partner under this Agreement and such other information from time to time owned or used by WeGoTrip or embodied or included in Platform or made available by WeGoTrip to the Partner (e.g. rates and availability).
"WeGoTrip Partner ID" means an identification code used by WeGoTrip to associate customers with WeGoTrip partners.
"Intellectual Property Rights" means any patent, copyright, inventions, database rights, design right, registered design, trademark, trade name, brand, logos, service mark, know-how, utility model, unregistered design or, where relevant, any application for any such right, know-how, trade or business name, domain name (with whatever (country code) top-level domain, e.g. .com, .app) or other similar right or obligation whether registered or unregistered or other industrial or intellectual property rights subsisting in any territory or jurisdiction in the world.
"Partner Commission" means the commission payable to the Partner as set out in clause 6.
"Partner Customer" means either (i) if the Partner accesses the Service via links to the Platform, a customer who has an unexpired cookie that contains the Partner's WeGoTrip Partner ID, and who has no newer cookie from another WeGoTrip partner or WeGoTrip; or (ii) if the Partner accesses the Service via API, a customer who makes a booking for an Activity through the Partner Platform via the Booking System; or (iii) if the Partner is a Travel Agency the customer for whom and on whose behalf the Travel Agency makes a booking through the provided link.
"Partner Platform" has the meaning as set out in the Background section.
"Personal Data" shall be defined as per the EU General Data Protection Regulation 2016/679 ("GDPR") as set out in clause 8.5.
"Platform" has the meaning as set out in the Background section.
"Service" has the meaning as set out in the Background section.
"Supplier" means a supplier who makes Activities available for bookings through the Service.
"Travel Agency" has the meaning as set out in the Background section.
1.2 The headings in this Agreement will not affect its interpretation.
2. WEGOTRIP´S OBLIGATIONS
2.1 WeGoTrip will pay the Partner as set out in clause 6 and grant to the Partner a license in accordance with clause 4.
2.2 All customer service related issues and questions in respect of the Service will be handled by WeGoTrip. If Partner opts to and is granted by WeGoTrip to access the Service via API, Partner will be responsible for customer service requests that arise prior to the Partner transferring the customer´s actual booking request to the Booking System.
2.3 If a booking is made by a Partner Customer or in the name and on behalf of a Partner Customer by a Travel Agency, WeGoTrip and the Supplier shall be solely responsible for the transmission of the relevant booking details to the Partner Customer. Only WeGoTrip and/or the Supplier shall (i) send the subsequent (email) confirmation to the Partner Customer, and (ii) handle the relationship with the Partner Customer through completion of the Activity.
3. PARTNER´S OBLIGATIONS
3.1. General undertakings
3.1.1 The Partner shall display the Content on the Partner Platform in a manner consistent with this agreement and shall not programmatically evaluate and extract information (including guest reviews) from any part of the WeGoTrip website (e.g. screen scrape). The Partner will (i) ensure that the contents of the Partner Platform are accurate, (ii) keep the Partner Platform up-to-date and error-free, and (iii) immediately correct errors (if any) pointed out by WeGoTrip.
3.1.2. The Partner shall not make bookings or reservations using the Platform or the Partner Platform for the purpose of reselling them.
3.1.3. The Partner shall not publish anywhere on the Partner Platform any statement that the Partner Platform is part of, endorsed by, or an official website of WeGoTrip.
3.1.4. The Partner shall not directly or indirectly offer tours, attractions, and other touristic activities via the Partner Platform except through the Service.
3.1.5. The Partner agrees to remove or correct the Content or parts thereof stored by the Partner at any time upon WeGoTrip's reasonable request, at Partner's own expense.
3.1.6. The Partner shall not exploit or use the Content for any purpose or in any manner, including through third party platforms, except as expressly allowed in this Agreement.
3,1.7. The Partner shall not in any way register, apply for, merchandise, sell, offer, solicit, (sub-)licence, provide, grant access, forward, publish or distribute domain names confusingly similar to Brand Elements. If the Partner infringes this obligation, it must transfer and register the corresponding domain name to WeGoTrip upon WeGoTrips request.
3.1.8. The Partner insures that, when presenting price comparisons on his website(s), service prices of competitors (direct or indirect) of WeGoTrip will be displayed error-free, accurately and non-misleadingly.
3.1.9. The Partner shall not engage in any misleading, illegitimate or fraudulent activities (e.g. misleading Partner Platform in the appearance of official websites, cookie stuffing, cookie dropping) within the scope of this Agreement.
3.1.10. During the term of the Agreement, the Partner agrees and warrants that it shall not (and its Affiliates shall not) conduct, undertake, use, perform or exercise (or authorize any third parties conduct, undertake, use, perform or exercise) (a) paid search, Search Engine Marketing ("SEM") or Search Engine Optimization ("SEO") activities, or (b) any other form of online targeted advertising (whether directly, indirectly, or via third party platforms) related to:
(i.) the Service
(ii.) the Platform
(iii.) the Content
(iv.) WeGoTrip Data
(v.) Brand Elements
(vi.) the Supplier brands (unless the owner of such Supplier brand has given its prior written consent to the Partner for the use of that specific Supplier brand).
3.1.11. Driving traffic to the Platform from paid search and any other advertising on the Partner Platform not under the direct control or ownership of the Partner is prohibited.
3.1.12. The Partner is not allowed to use the Content on websites that do not belong to the Partner and/or websites that contain inappropriate or unlawful content of any sort. This includes advertising banners. If the Partner implements the Content on Partner Platform, it may place links on its personal social media pages (such as Facebook, Instagram and YouTube). The Partner hereby represents and warrants to WeGoTrip that for the term of this Agreement:
(i.) The Partner has all necessary rights, title to, power and authority to own, operate and use the Partner Platform (including the relevant domain name(s)) and to include the link, the micro site or
the connection (as applicable) on the Partner Platform;
(ii.) The Partner Platform shall not (a) violate spamming regulations, public policy and morals, or (b) contain any inappropriate, improper or unlawful content, reference, material, information, links or banners (e.g. in respect of porn or racism), defamatory statements, elements which violate the privacy of third parties or are abusive, offensive or obscene;
(iii.) The Partner holds and has complied with all permits, licenses and other governmental authorisations necessary for conducting, carrying out and continuing its operations and business and will provide upon request any documentation WeGoTrip may need to fulfil legal requirements, and
(iv.) The Partner is an independent contractor for all purposes, and will be responsible and liable for its own taxes, social contributions and all other tax related matters. The Partner is obliged to submit complete and accurate information about its identity and contact information and keep this information up to date. Partners established in Germany are obliged to submit their VAT IDs.
3.1.13. The Partner agrees and acknowledges that if it breaches any obligation in this clause 3.1, WeGoTrip may in its sole discretion (i) terminate this Agreement pursuant to Clause 7.3, (ii) withhold any payments due to Partner pursuant to this Agreement, without the accrual of interest, or (iii) seek any other legal or equitable remedy available to it.
3.1.14. Clause 3.1.13 (ii) also applies in case of uncertainty about the identity and contact information about the Partner until the uncertainty is resolved. The Partner is liable to WeGoTrip for any financial losses that WeGoTrip might incur as a consequence of inaccurate or incomplete information submitted by the Partner and entitled to withhold payments to the Partner in compensation.
3.2. Relation to Suppliers. The Partner agrees not to take, or omit to take, any action which may affect or interfere with WeGoTrip´s relationship with the Suppliers, including (i) by actively soliciting an agreement of any kind with any Supplier; (ii) by performing activities that may cause WeGoTrip to be excluded from the process of booking or cause a Supplier to terminate its relationship with WeGoTrip or reduce its business with WeGoTrip; or (iii) by selling Suppliers any sort of advertisement or preferential treatment on the Partner Platform or in the Travel Agency. The Partner may not use contact information received by WeGoTrip to contact or to communicate directly with Suppliers for any purpose.
3.3. Relation to Customers. The Partner acknowledges that all payment transactions in relation to the Service are carried through WeGoTrip's payment providers, selected by WeGoTrip at its sole discretion. The Partner will forward any data (through the appropriate API, if applicable) relating to reservations and bookings including payment information obtained from a Partner Customer to WeGoTrip. The Partner may only use such data in accordance with the applicable laws and may not use it in any way not permitted by this Agreement.
4. LICENSES TO THE PARTNER
4.1. Data License. If Partner has chosen and was granted by WeGoTrip to access the Service via API, clause 4.1.1 is applicable. If Partner has chosen to access the Service via links to the Platform, clause 4.1.1 is not applicable.
4.1.1. Subject to the Partner's full compliance with its obligations under this Agreement, WeGoTrip hereby grants Partner for the term of the Agreement a non-exclusive, non-transferable and non-sublicensable right to access, store and display the Content on the Partner Platform, as provided by WeGoTrip. The Partner is only allowed to download Content after prior written approval from WeGoTrip.
4.1.2. The Partner shall use the Content only in accordance with this Agreement and shall not use the Content in any way or for any purpose that are not expressly permitted by this Agreement. In particular, the Partner must not, and the Partner must not allow its customers, visitors or any other third party, to, in any way:
i. incorporate Content as the primary content of the Partner Platform;
ii. copy, store, cache, syndicate, republish, or create a database of Content, in whole or in part, directly or indirectly, except as required for Partner to perform its obligations under the Agreement;
iii. transfer, sell, lease, lend or otherwise grant or attempt to grant rights in or access to the Content to any third party;
iv. edit, modify, filter, change the order of, suppress, or replace any part of the Content, including by intermixing data from sources other than WeGoTrip, except as otherwise agreed by the Parties in writing;
v. remove any copyright, trademark or other proprietary rights notices contained in the Content;
vi. display Content to any third party other than its customers and visitors;
vii. use any Content (including user ratings) to advertise its own services or that of a third party without the prior written consent of WeGoTrip;
viii. take any action relating to the Content on behalf of any of its customers and visitors, including making or causing WeGoTrip to make reservations or bookings, without that customer's permission;
ix. restrict or interfere with the use of the Service by WeGoTrip's other partners;
x. use the Content or the Service for purposes of monitoring the availability, performance, or functionality of any of WeGoTrip's products and services, or for any other benchmarking purposes;
xi. where Content is accessed through an account with WeGoTrip, create (a) serial accounts for disruptive or abusive purposes or (b) accounts with third party names;
xii. use robots, spiders, crawlers, or any other device to retrieve or index any Content for any unauthorized purpose; or
xiii. transmit any viruses, worms, harmful code, or any other item of a destructive nature.
4.1.3. Unless otherwise agreed in writing by WeGoTrip, Partner may not (i) sublicense the rights granted hereunder, (ii) allow any third party to access the Service, either by link or API. The Partner shall not sell, disclose, or distribute the Content to any third party for price/availability purpose or otherwise or any search engine or similar.
4.2. Brand Elements
5.4.2.1. WeGoTrip hereby grants Partner for the term of the Agreement a non-exclusive, non-transferable and non-sublicensable right to display the Brand Elements solely on the Partner Platform and provided that the Partner does not:
i. display the Brand Elements in any way that (a) implies a relationship or affiliation with, sponsorship, or endorsement by WeGoTrip other than according to this Agreement; (b) can be reasonably interpreted to suggest editorial content has been authored by or represents the views or opinions of WeGoTrip; or (c) disparages WeGoTrip, any of its products or services, the Suppliers, or customers;
ii. have a Brand Element as the largest or most prominent logo anywhere on the Partner Platform;
iii. display a Brand Element in a manner that is misleading, defamatory, or infringing; or
iv. remove, distort, or alter any element of a Brand Element.
4.2.2. In the event of a violation of clause 4.2.1, the Partner shall promptly comply at its own cost with any request from WeGoTrip to make changes or alterations to any aspect or element of the Partner Platform.
4.3 In no event shall WeGoTrip be liable for any acts or omissions
regarding Content that its Suppliers have uploaded on the Platform. This
applies in particular to any possible IP-rights infringements of
Suppliers.
5. BRANDING AND PROMOTIONAL ACTIVITIES
5.1. The Parties agree to cooperate with each other in a timely manner in order to maximize the success of the business relationship.
5.2. The Partner shall not do anything that may bring WeGoTrip or its Affiliates into disrepute or may damage, defame, or otherwise have a detrimental effect on WeGoTrip or its Affiliates. The Partner shall ensure that the look and feel of the Partner Platform, including the color scheme, composition, typefaces, design, layout, logos, features, and elements, are and remain sufficiently and substantially distinct from the look and feel of the Platform.
5.3. The Partner shall promptly comply at its cost with any reasonable request from WeGoTrip to make changes or alterations to any aspect or element of the Partner Platform that is or could be regarded as confusingly or significantly like any element of the Platform.
5.4. The Parties agree to perform the promotion and marketing activities with following restrictions:
5.4.1 No double serving or cloaking. The Partner Platform shall not be (directly or indirectly) linked to the Platform due to double serving or any similar technique or method. The Partner shall not (directly or indirectly) make the Partner Platform, the Content, or the Service available to third party platforms with the intention or purpose of misleading or deceiving human editors, search engine spiders, web-crawlers, or meta search engines (including similar tools or engines) of third party platforms in order to give the Partner Platform a higher ranking or display position within the third party platform that it would have otherwise achieved absent such technique or method.
5.4.2 The Partner agrees not to specifically target the WeGoTrip brand directly through keyword purchases that use WeGoTrip's intellectual property rights. Unless otherwise agreed in writing with WeGoTrip the Partner is not authorized (directly or indirectly) to purchase, acquire, use, employ or integrate terms or keywords (including variations and misspellings) that are identical or strikingly similar to those used by WeGoTrip or related internet-domain names (for example WeGoTrip.com (independent of (country-code) Top-Level-Domain)) in association with advertising tactics through paid search entries or other forms of online-advertising on platforms of third parties.
5.4.3 The Partner agrees to only advertise or promote the Service in accordance with the terms and conditions set forth in this agreement. All advertisement or promotion not explicitly allowed by the terms and conditions set forth in the Agreement requires WeGoTrips prior written consent. Partner is especially not entitled to use any physical advertising material (including flyers, posters, posts in magazines and similar material) without WeGoTrips prior written consent.
6. PARTNER COMMISSION
6.1. For each Completed Booking made by a Partner Customer, WeGoTrip will pay the Partner a commission ("Partner Commission"), if agreed.
6.2. To calculate the Partner commission, all transitions made to the WeGoTrip website via links containing the partner identifier assigned to the Partner are accepted. This takes into account sales of travel services made from the personal devices of users within 30 days from the date of the first transition of the Partner Customer to the WeGoTrip website. Accounting for clients is based on cookies installed in users' browsers. The commercial terms of the Partner Commission are calculated as 30% for Activities without tickets and 20% for Activities with tickets..
6.3. If a Partner Customer raises a claim for a refund, any Partner Commission related to the affected Completed Booking will be suspended until the claim is dropped or definitely dismissed. If the affected Supplier makes a refund to the Partner Customer (as decided by the Supplier), WeGoTrip will deduct the commission relating to that Completed Booking from a subsequent commission payment to Partner. In the event such claims of Partner Customers cause a delay in a Partner Commission payment, no interest will be added to such payment to the Partner.
6.4. Payment of commission to the Partner is carried out monthly within 10 working days from the moment the Partner sends a request for payment. WeGoTrip creates a self-billing invoice on behalf of the Partner. In the event the amount of the Partner Commission due to the Partner at that time is less than $50, WeGoTrip will report the amount due to the Partner, but may postpone payment (without the accrual of interest) until the earlier of (i) the month when the total Partner Commission due to Partner is $50 or more, and (ii) termination of this Agreement.
6.5. Payments will be wired to the Partner account on file with WeGoTrip, and the Partner will be notified via e-mail to the address indicated for accounting purposes in the Partner's account information.
6.6. WeGoTrip's self-billing invoice is the basis for any payment. The Partner must raise a claim for an alleged inaccuracy of the self-billing invoice no later than thirty (30) days after the date of the self-billing invoice. If no claim has been raised within that period, the self-billing invoice shall be deemed to have been accepted.
6.7. The systems, books, and records of WeGoTrip (including emails) shall be considered conclusive evidence in respect of the amount of the Partner Commission due to the Partner under this Agreement.
6.8. WeGoTrip reserves the right to reissue the self-billing invoice.
6.9. If applicable, the reverse charge mechanism will be used and the Partner will be liable for the payment of the applicable taxes.
7. TERM AND TERMINATION
7.1. This Agreement comes into effect upon execution and will remain in effect until terminated according to its terms.
7.2. Either Party may terminate this Agreement at any time and for any reason upon thirty (30) days prior written notice to the other Party.
7.3. This Agreement shall terminate immediately and automatically in the event of:
7.3.1. The appointment of a receiver or trustee for the benefit of creditors of either Party, or if either Party shall be declared bankrupt or insolvent or shall be subject to any proceedings under the laws relating to bankruptcy, insolvency or the relief of debtors.
7.3.2. The loss by either Party of any necessary government licenses, permits or approvals enabling the Parties to fulfil their obligations under this Agreement.
7.3.3. Breach by either Party of any substantive term of this Agreement as follows: (i) if the breach is not capable of being remedied, upon notice by the non-breaching Party of such breach, or (ii) if the breach is capable of being remedied, ten (10) days after notice by the non-breaching Party, if the breaching Party fails to remedy such breach during this ten (10) day period.
7.3.4. WeGoTrip believes that the Partner violates clause 3.1.9, upon notice by WeGoTrip, if the Partner fails to dispel the suspicion within two days. The decision as to whether the suspicion has been dispelled is at the sole discretion of WeGoTrip.
7.4. If Partner directly or indirectly breaches any covenant, undertaking, restriction, obligation, or warranty in clause 3, WeGoTrip may, in addition to the other remedies set forth in this Agreement or available under law:
(a) suspend its payment obligations under this Agreement with immediate effect; or
(b) retain all Partner Commissions that would have been due to Partner during the period that the Partner is in breach of clause 3 or has not remedied its breach as set out in clause 7.3.3 in full.
7.5. After termination, WeGoTrip will pay Partner any outstanding Partner Commission in accordance with the terms of this Agreement. If the Agreement has been terminated according to 7.3.4, the Partner is not entitled to any payment.
7.6. Upon any termination of this Agreement, Partner must immediately either, as directed by WeGoTrip, (i) return or deliver to WeGoTrip all documentation and other material, including all copies thereof, in Partner's possession or under its control which contain Confidential Information of WeGoTrip, or (ii) destroy all such documentation and other material and confirm in writing to WeGoTrip that the destruction has taken place.
7.7. Upon termination of the Agreement for any reason, all rights granted herein terminate, and the Partner must immediately remove from the Partner Platform and delete all Content, Brand Elements, software, documentation, and other materials received from WeGoTrip.
7.8. The provisions of this Agreement which by their sense and context are intended to survive performance by either or both Parties and the rights deriving from such provisions will survive the completion, expiration, termination or cancellation of this Agreement
8. CONFIDENTIALITY AND DATA PROTECTION
8.1. Each Party:
i. must keep secret and confidential all Confidential Information disclosed to it; and
ii. must not disclose the Confidential Information (other than to its Affiliates, employees, consultants, subcontractors, agents, professional advisers or insurers and their employees, consultants, subcontractors, agents, professional advisers or insurers and any of its or its Affiliates' financiers or potential financiers (the "Authorized Recipients") on a "need to know" basis) except with the prior written consent of the Party whose Confidential Information is being disclosed. Disclosure to any Authorized Recipient will be subject to the Authorized Recipient being bound by obligations equivalent to those set out in this clause 8. The person disclosing Confidential Information to an Authorized Recipient must ensure that such Authorized Recipient complies with such obligations.
8.2. The obligations of confidentiality in this clause will not apply to any information that either Party can show:
(a) is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under this Agreement; or
(b) was in its own written records prior to the disclosure to it of the confidential Information; or
(c) was independently disclosed to it by a third party entitled to disclose the same.
8.3. The obligations of confidentiality in this clause will not prevent either Partner or WeGoTrip from disclosing such Confidential Information where it is required to do so under any applicable law or the rules of any recognized stock exchange or by order of a court or governmental body of authority of competent jurisdiction or a mandatory requirement of any regulatory authority.
8.4. Each Party must establish and maintain such security measures and procedures as are reasonably practicable to provide for the safe custody of any Confidential Information in its possession and to prevent unauthorized access to or use of such Confidential Information. Neither Party may use Confidential Information or reproduce such Confidential Information in whole or in part in any form except as may be required by this Agreement.
8.5. Personal Data shall be defined as per the EU General Data Protection Regulation ("GDPR") or any analogous law in any country which has jurisdiction in relation to the subject matter of this Agreement or any data to be processed under this Agreement ("Data Protection Legislation"). Under this Agreement, Personal Data may be transferred by Partner to WeGoTrip, or Partner may assist in a transfer of Personal Data by a Partner Customer to WeGoTrip, in particular where a booking is made through the API or if Partner is a travel-agency making a booking for and on behalf of a Partner Customer. In case of a booking through a link, anonymous or pseudonymous information such as cookie IDs or WeGoTrip Partner IDs, may be provided to WeGoTrip. The Parties agree that, with regard to such Personal Data (including pseudonymous data) and such transfer, both Parties are independent data controllers and are not data processors or joint controllers within the meaning of the GDPR. In the event that either Party processes any Personal Data contained in the Confidential Information of, or that is otherwise supplied by, the other Party or its Affiliates, such Party hereby agrees to process such Personal Data at all times in compliance with Data Protection Legislation, and to adhere to all applicable requirements for the processing of Personal Data, including, but not limited to:
(a) process Personal Data only for the purposes of providing the services under this Agreement;
(b) process Personal Data only in accordance with the Data Protection Legislation; and
(c) having appropriate operational and technical measures in place to safeguard the Personal Data against any unauthorized access, loss, destruction, theft, use or disclosure.
9. INTELLECTUAL PROPERTY
All Intellectual Property Rights in the Platform and Brand Elements are the property of WeGoTrip or WeGoTrip Affiliates. Upon conclusion of this agreement, WeGoTrip and WeGoTrip Affiliates do not abandon, but explicitly reserve their right of intellectual property, against the Partner or a third party, warranted by a law, a contract, or otherwise (now or in the future).
10. LIABILITY AND DISCLAIMERS
10.1. For non-performance or improper performance of their obligations under this Agreement, the Parties shall be liable in accordance with the Applicable Law.
10.2. WeGoTrip shall be liable for losses caused by the breach of its primary obligations by WeGoTrip, its legal representatives or assistants in performance. Primary obligations are such basic duties which form the essence of the Agreement, which were decisive for the conclusion of the Agreement and on the performance of which Partner may rely. If WeGoTrip breaches its primary obligations through simple negligence, then its ensuing liability shall be limited to the amount which was foreseeable by WeGoTrip at the time the respective service was performed.
10.3. The System and Content are provided on an "as is" and on an "as available" basis. WeGoTrip shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken.
10.4. WeGoTrip makes no express or implied warranties or representations of any kind with respect to the Service, the Booking System, the Platform, the Content or other items offered by WeGoTrip.
11. Non-Solicitation
During the term of the Agreement and for a period of one year from the termination Partner shall refrain, and shall procure that Partner's Affiliates refrain, from:
(a) influencing Suppliers or other third party maintaining a contractual or other business relationship with WeGoTrip or any of its Affiliates to terminate or discontinue such relationship or to reduce the volume of goods or services provided thereunder; or
(b) soliciting or attempting to solicit the service or employment of any current or future employee of WeGoTrip or its Affiliates.
12. EXCLUSIVITY
The cooperation based on this Agreement is non-exclusive for WeGoTrip. Nothing in the Agreement shall prevent WeGoTrip from working with, participating in, or offering any partnership to third parties.
13. FINAL PROVISIONS
13.1. Amendments or additions to this Agreement must be made in writing or in text form.
13.2. Should any provision of this Agreement be or become void or invalid, this shall not affect the validity of the remaining provisions. The Parties shall in such an event cooperate in the creation of terms that achieve such legally valid result as comes closest commercially to that of the invalid provision. The above shall apply accordingly to the closing of any gaps in the Agreement.
13.3. The Partner may not assign or subcontract its rights or duties under this Agreement, in whole or in part, whether by operation of law or otherwise, without the prior written consent of WeGoTrip.
13.4. WeGoTrip may assign and transfer its rights and obligations in connection with this Agreement to WeGoTrip's Affiliates.
13.5. WeGoTrip may change the Service or the general terms and conditions of this Agreement. In the event of a change to the general terms and conditions, WeGoTrip will notify the Partner of the changes to the general terms and conditions in textform (e.g. by e-mail). The changes shall become effective vis-à-vis the Partner and the contractual relationship shall be continued under the changed conditions if the Partner does not object to these changes within six (6) weeks after receipt of the notification of change by written notification to WeGoTrip. The timely dispatch of the objection to WeGoTrip shall suffice to comply with this deadline. In the event of objection, both parties shall have the right to terminate the contract without notice. WeGoTrip will specifically draw the Partner's attention to the aforementioned consequence of a failure to object in the written notification of change.
13.6. This Agreement as well as any claims out of or in connection with this Agreement shall be governed by and construed in accordance with the provisions of German Law under exclusion of its conflict of law rules. The exclusive legal venue for any disputes arising from or in connection with this Agreement shall be the courts for WeGoTrip´s registered office. WeGoTrip may also sue the Partner at the competent courts for the Partner´s registered office.