Supply Partner Agreement
Introduction:
These Headout Supply Partner terms and conditions (“Supply Partner Agreement” or “Agreement”) describe the legal relationship between Headout Inc. ("Headout") and the Supply Partner. Headout and Supply Partner may be individually referred to as a "Party" or collectively as "Parties".
Background:
Headout operates a Platform that allows (a) tour operators, activity organizers, attractions, travel agents and ticket suppliers to offer Services to Customers; (b) conclusion of contracts directly between the Supply Partner and Customers for such Services; (c) commercial sub-agents of Headout to book Services from the Supply Partner.
The Supply Partner owns and operates the Services and is desirous of listing those Services on the Platform in accordance with the terms provided hereunder in this Supply Partner Agreement.
Definitions and Interpretation
Definitions: In this Agreement, unless the context otherwise requires, the following words and expressions shall bear the meanings ascribed to them below.
"Acceptability Guidelines" shall mean the policies and guidelines developed, adopted and followed by Headout to assess and determine whether the Content received from the Supply Partner can be displayed on the Platform for access by the Customers;
"Advance" is an amount deposited and/or replenished from time to time by Headout Inc with the Supply Partner in order to discharge Headout’s settlement obligations under Clause 9;
"Applicable Laws" shall mean any law, statute, rule, regulation, ordinance, direction, guideline, judgment, award, decree, writ or other binding action or condition imposed by any government department/agency or instrumentality of any governmental authority, or any court or arbitral tribunal or any self-regulatory body of any jurisdiction which is applicable to a Party or to which its business or assets may be subject;
"Booking" shall mean a transaction entered into between a Customer and the Supply Partner for purchase of any of the Services listed on the Platform, comprising selection of the Service(s) proposed to be availed of by the Customer, initiation of payment for the selected Service(s), confirmation of completion of payment for the selected Service(s) by the Payment Service Provider and receipt of the payment amount by Headout into Headout’s bank account;
"Booking Method" shall mean the way by which Booking will be made i.e. through API call or email request or B2B portal or any other way as may be agreed between the Parties;
"Change of Control" shall mean the sale of all or substantially all the assets of a Party; any merger, consolidation or acquisition of a Party with, by or into another corporation, entity or person; or any change in the ownership of more than fifty percent (50%) of the voting capital stock of a Party, in each case, in one or more related transactions;
"Customers"shall mean the end customers visiting and making the Booking for the Services listed on the Platform.
"Confidential Information" shall mean any information disclosed by Headout to Supply Partner, whether before or after the Effective Date, that: (i) is in written, graphic, machine readable or other tangible form and is marked “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature;(ii) should be reasonably understood by the Supply Partner to be the confidential or proprietary information of Headout; or (iii) that is oral information disclosed by Headout to the Supply Partner, provided that such information is designated as confidential at the time of disclosure and is reduced to writing by Headout within a reasonable time after its oral disclosure, and such writing is marked in a manner to indicate its confidential nature and delivered to the Supply Partner.
"Content" shall mean inter alia the content, information, digital material, pictures, photographs, videos, descriptions, illustrations, notes, reviews, Service Price, terms and conditions and policies pertaining to or governing the provision of Services proposed to be sold/provided by the Supply Partner;
"Credit Period" is the period mutually decided by the Parties and available to Headout for settlement of the Service Price (net of Headout Commission) computed from the date of completion of the Response Time;
"Floating Deposit" is an amount deposited and/or replenished from time to time by Headout Experiences with the Supply Partner in order to discharge Headout’s payment obligations under Clause 9;
"Force Majeure Event" shall means, with respect to a Party, any event or circumstance, whether or not foreseeable, that was not caused by that Party (other than a strike or other labor unrest that affects only that Party, an increase in prices or other change in general economic conditions, a change in applicable law, or an event or circumstance that results in that Party’s not having sufficient funds to comply with an obligation to pay money) and any consequences of that event or circumstance;
"Headout" shall mean Headout, Inc., a Delaware corporation, having its address 82 Nassau St #60351, New York, NY 10038, and includes its successors and assigns;
"Headout Commission" is the commission/fees mutually agreed between the Parties and payable by the Supply Partner (or deductible by Headout from the Service Price towards such payment) in consideration for inter alia use of the Platform and services provided by Headout, facilitating the receipt of Bookings from Customers and sale of Services by the Supply Partners to the Customers.
"Headout Hub" is the portal made available to the Supply Partner by way of a secure account created by Headout on the Platform following execution of this Agreement, for the purpose of enabling the Supply Partner to communicate with Headout in relation to matters contemplated under this Agreement;
"Minimum Payout Threshold" means the minimum threshold that should be achieved in terms of the total booking amount before payment can be released under Clause 9.2.
"Payment Service Provider" is a third-party entity thatinter alia facilitates payments by the Customers for Bookings and refunds by Headout to the Customers as per the terms contemplated under this Agreement;
"Person" shall mean any natural person, limited or unlimited liability company, corporation, partnership firm, trust, union (whether registered or unregistered), an association of individuals (whether registered or unregistered), government, or any agency of the government or a political subdivision thereof or any other entity that may be treated as an entity under Applicable Laws;
"Platform" shall mean an internet booking platform owned & operated by Headout and accessible via the www.headout.comwebsite, related websites, affiliates, micro brands and partner websites, apps, tools, platforms, or other facilities.
"Services"shall mean sightseeing tours, leisure activities, attraction tickets and other tourism and entertainment services.
"Service Price" is the amount specified by the Supply Partner as part of the Content, as chargeable for the Services provided or to be provided by the Supply Partner to the Customer;
"Settlement Currency" means the currency in which payment will be made by Headout to the Supply Partner in compliance of Clause 9.
"Supply Partner"shall mean the Person who is providing or will provide the Services to Customers and whose information is set forth hereinabove and shall include its successors, permitted assigns, executors, administrators, representatives and heirs (as applicable);
"Supply Partner Materials" shall mean all materials, logos photos, descriptions, trademark, content and similar items owned by the Supply Partner or held by the Supply Partner under a valid license with a right to sub-license;
"Test Shoppers" shall mean certain specific Customers identified by Headout to carry out a pre-agreed number of Bookings and thereafter experience Services chosen under the Bookings in order to assess and analyse inter alia the quality of such Services, the Supply Partner’s response rate and the customer service of the Supply Partner.
"Ticket Type" shall mean either an e-ticket or a mobile ticket issued either by Headout on behalf of the Supply Partner or by the Supply Partner directly.
Interpretation: Unless the context otherwise requires in this Agreement:
words importing the singular include the plural and vice versa where the context so requires;
reference to any law shall include such law as from time to time enacted amended, supplemented or re-enacted;
reference to any gender includes a reference to all other genders;
reference to the words "include" or "including" shall be construed without limitation;
reference to this Agreement or any other agreement, deed or other instrument or document shall be construed as a reference to this Agreement, such agreement, deed or other instrument or document as the same may from time to time be amended, varied, supplemented or novated;
in addition to the terms defined in Clause 3.1 above, certain other terms are defined elsewhere in this Agreement and wherever such terms are used in this Agreement, they shall have their respective defined meanings, unless the context expressly or by necessary implication otherwise requires;
the headings and titles in this Agreement are indicative and shall not be deemed part thereof or be taken into consideration in the interpretation or construction hereof; and
the section on Background and Commercials set forth hereinabove shall form an integral part of this Agreement.
Facilitation of Sale of Services
The Supply Partner hereby authorizes Headout, to, directly or indirectly, including through the use of sub-agents, (i) to list Services to be offered to Customers by the Supply Partner; and (ii) facilitate Bookings. The Supply Partner further authorizes the Payment Service Provider and any other third party authorized by Headout to process data required to permit the transfer of funds to and from the Supply Partner’s payment instruments or accounts, or as otherwise required in order to facilitate the Bookings.
The Parties agree that Headout is merely an intermediary between the Customers and the Supply Partner for facilitation of the Bookings and sale of the Services offered by the Supply Partner. The contract for the sale and provision of the Services is between the Supply Partner and the Customers. The Supply Partner agrees and acknowledges that the operation of the Platform by Headout does not constitute either expressly or otherwise the making or any representations, furnishing of warranties or undertakings about the Services.
Headout shall be entitled to facilitate Bookings for Test Shoppers solely for the purpose of evaluating the experience and offering feedback of the Services offered by the Supply Partner, as per the terms set out in this Agreement. Headout shall be entitled to make test bookings per quarter as mutually agreed between the Parties and shall ensure the test bookings are only made for the limited purpose of evaluating the quality of the experience and Services offered by the Supply Partner. The Test Shoppers may only disclose the fact that they acted as a “Test Shopper” after the Booking has been completed. For the limited number of test bookings agreed, Headout shall have no obligation to pay or remit to the Supply Partner any Service Price. Any Service Price, if paid or charged, at the time of making such test bookings, shall be adjusted in the reconciliation of accounts.
Onboarding and Use of Platform
Following execution of this Agreement, the Supply Partner shall be entitled to seek onboarding and registration on the Platform by providing such documents as specified by Headout.
On successful completion of onboarding and registration, the Supply Partner shall be given access to the Headout Hub. The Supply Partner shall keep credentials pertaining to the access to the Headout Hub confidential. In the event the security of Supply Partner’s Headout Hub account is compromised, the Supply Partner shall immediately notify Headout of the same.
Upon receipt of access to the Headout Hub, the Supply Partner shall be entitled to submit, through Headout Hub, application programming interface (API) tools, webforms or such other channels specified by Headout from time to time, Content offered by the Supply Partner, in the format specified by Headout.
Upon receipt, by Headout, of the Content in the manner contemplated under Clause 5.3, Headout shall review the Content as per the Acceptability Guidelines. Headout shall notify the Supply Partner about matters in the Content which are not in conformity with the Acceptability Guidelines. The Supply Partner shall either seek removal of the non-conforming Content or replace the non-conforming Content with other conforming Content. Unless agreed otherwise between the Parties, Headout shall not post, on the Platform, the Content in its entirety until the Supply Partner replaces the non-conforming Content with conforming Content as contemplated above. The Supply Partner agrees that Headout may, from time to time, extend discounts to Customers as part of Headout’s marketing and promotional activities. Notwithstanding the aforesaid, the Supply Partner shall be entitled to receive the Service Price (subject to deduction of Headout Commission and other amounts deductible as per the terms hereof).
The Supply Partner shall from time to time update the Content associated with the Services. The provisions of Clause 5.4. shall mutatis mutandis apply to any Content received by way of update under this Clause 5.5.
It is agreed that Headout shall be entitled to delete/remove/modify Content that is not in conformity with the Acceptability Guidelines, without prior notice to the Supply Partner.
Representations and Warranties
The Supply Partner represents and warrants that at all times during the subsistence of this Agreement:
it has the power and requisite authority, permission, approval and sanction to enter into and to exercise its rights and to perform its obligations hereunder;
it has taken all necessary action to authorize the execution of and the performance of its obligations hereunder;
it has valid tax registrations, including indirect tax registrations, in place and complies with all applicable tax-related requirements on a regular basis as set out under and agrees to provide their tax registration certificate as deemed necessary for compliance purposes in accordance with applicable laws and regulations
the obligations expressed to be assumed by it hereunder are legal, valid, binding and enforceable;
neither the execution nor performance of this Agreement will contravene any provision of any Applicable Laws; or any contract, agreement or document by which it is/may be bound;
the Content submitted/made available to Headout or displayed on the Platform shall be true, accurate and not misleading;
the Content, offers to the Customers thereunder, the provision of the Services shall not violate Applicable Laws or any third party rights;
no Content or Services which are(i) sexist, racist, extremist;(ii) likely to challenge the physical, mental or moral integrity of human beings; (iii) likely to hurt or injure animals; (iv) likely to cause/compel Customers to purchase other services not contemplated on the Platform, shall be made available on the Platform or sold to the Customer through the Platform;
the Services shall be rendered or performed taking into consideration the health, safety and security of the Customer;
Services shall be rendered by the Supply Partner or its agents, representatives or sub-contractors in accordance with Applicable Laws. It is clarified that the Supply Partner also warrants to comply with Applicable Laws pertaining to consumer protection and other protection, information and consultation duties and regulations;
all licenses, permits and authorisations ("Permits") required from any governmental entity, administrative agency, local tourism board or any similar authority for the purpose of providing/performing/conducting the Services have been obtained by and shall from time to time be obtained, renewed and maintained.
it either owns the Supply Partner Materials without any encumbrance or holds the Supply Partner Materials under a valid license with the right to sub-license;
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BY STATUTE, USAGE, TRADE CUSTOM, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY INTENDED OR PARTICULAR PURPOSE. HEADOUT MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE PLATFORM, INCLUDING WHETHER IT WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION.
Obligations of the Supply Partner
Bookings and Performance of Services
The Supply Partner shall accept and perform all Bookings for Services made by Customers via the Platform and may not reject any such Booking except with Headout’s prior written consent.
The Supply Partner shall provide/perform/conduct the Services in accordance with the applicable Content description pertaining to the Services, in existence as of the date of the Booking of the Services, in a polite and considerate manner, and in compliance with Applicable Law. The Supply Partner shall ensure that it provides/performs/conducts the Services and treats Customers of the Services in the same or better manner than the conduct of services and treatment of customers booked through other methods or platforms. Provided however, if any Booking for Services does not contain all Customer information required by the Supply Partner to perform the Services, then Headout and Supply Partner shall cooperate to obtain such information.
It is agreed that the Supply Partner shall conduct or deliver the Services only if the Customer produces either (i) a ticket/barcode issued by the Supply Partner on completion of the Booking or (ii) a voucher generated and issued by Headout on behalf of the Supply Partner pursuant to receipt of the Booking. A format of the voucher shall be made available to the Supply Partner prior to acceptance of Bookings. It is clarified that if the Supply Partners conducts or delivers Services to a Customer who does not produce a valid ticket/barcode or voucher issued pursuant to a Booking, then Headout shall not be obligated to pay the Service Price in respect of Services.
Changes and Cancellations
The Supply Partner shall notify Headout of any planned or proposed changes or cancellations to Services offerings at least three (3) months in advance, or if such advance notice is not possible, as soon as the Supply Partner becomes aware of such changes or cancellations or any other cancellations as soon as the Supply Partner becomes aware of such eventual cancellations.
If the Supply Partner fails to provide to Headout notice of cancellation of Services or cancels a Services offering or fails to provide/perform/conduct the Services for any reason (including on occurrence of a Force Majeure Event) ("Cancellations"), Headout shall be entitled to refund, to the Customer, the Service Price charged to the Customer in respect of the Cancellations. The Service Price so refunded to the Customer in respect of the Cancellations shall not be remitted to the Supply Partner. If the Service Price in respect of the Cancellations has been remitted to the Supply Partner, then Supply Partner shall refund such Service Price within seven (7) business days of the Cancellation. On the Supply Partner’s failure to refund the Service Price, then Headout shall be entitled to deduct the amount of such refunds from future payments due to the Supply Partner (provided that Headout identifies such deducted amounts in writing to the Supply Partner).
Permits, Waivers, Disclaimers And Insurance
Upon request the Supply Partner shall provide Headout with copies of the Permits. In the event of any investigation, demand, or proceeding involving Headout or the Supply Partner and related to the Supply Partner’s performance of the Services, the Supply Partner shall cooperate with Headout in any response to such investigation, demand, or proceeding.
The Supply Partner is solely responsible to obtain directly from Customers all liability waivers, disclaimers, permissions, authorizations or similar documentation in connection with the Services. To the extent such waivers, permissions, and authorizations are standard in the industry in which the Supply Partner conducts its business, the Supply Partner shall obtain such waivers, permissions, and authorizations prior to performing the Services for such Customer.
The Supply Partner shall obtain and maintain, during the term of this Agreement, insurance coverage in respect of liability towards Customers arising on account of performance of the Services, for an amount that is higher of (i) an amount specified in Annexure-I; or (ii) an amount prescribed under applicable law or (iii) an amount that is standard in the industry in which the Supply Partner conducts its business. Headout shall also be entitled to specify additional terms with respect of such insurance, including naming of Headout as an additional insured party under such insurance. Upon request, the Supply Partner shall provide Headout with certificates/copies of Supply Partner’s insurance policies in effect at the time of such request.
Solicitation
The Supply Partner shall not at any time refer any Customer to Supply Partner’s own website, or attempt to contact Customer outside of the Platform or as authorized by Headout. The Supply Partner shall neither accept any cancellation requests for Bookings made through Headout directly nor solicit any Customer to cancel a Services booking via the Platform for the purposes of re-booking with the Supply Partner directly or via another platform or service.
Customer Complaints and Related Service
The Supply Partner is solely responsible to receive, respond, and resolve any and all Customer complaints in respect of the Supply Partner’s product or the performance of the Services. Headout may at any time and at its sole discretion (a) offer customer support services to a Customer, (b) provide, at the cost and expense of the Supply Partner, an alternative service of an equal or better standard ("Alternative Service") in the event of an overbooking or other material irregularities or complaints in respect of the offered or provided Services, or (c) otherwise assist Customers in their communication with or actions against the Supply Partner. Notwithstanding the foregoing, for any Alternative Service the Supply Partner shall not be required to pay an amount greater than 1.5 times the Service Price of the Services initially promised under the relevant Bookings.
The Supply Partner will be required to respond to Customer complaints/grievances/queries within three (3) days of communication or receipt of such complaints/grievances/queries from Headout. In the event, the Supply Partner fails to respond within the aforesaid time, Headout, in the interest of customer satisfaction, shall be entitled to:
issue a refund to a Customer and if required such additional amount to be paid as reasonable compensation;
withhold remittance of outstanding Service Price amounts to recover the refund and the compensation.
If no amount is available to Headout to withhold the refunded amount and compensation, then Headout shall be entitled to raise an invoice for such amounts. The Supply Partner shall pay the amounts in respect of such invoices within 5 business days of issue of the invoice. It is clarified that Headout shall be under no obligation to provide customer support services or assist the Customer in any manner in connection with the Services.
Any costs or expenses incurred by Headout in connection to the foregoing clauses may be deducted by Headout from future payments due to Supply Partner.
The Supply Partner is solely responsible for the conduct of its personnel in connection with Customers. The Supply Partner shall not, and shall ensure that its personnel shall not, discriminate against or harass any Customer in any manner including on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation.
Cancellation Policy/No-show Policy
The Supply Partner shall be entitled to submit to Headout, as part of the Content, a policy outlining the terms regarding cancellation of Bookings by the Customers ("Bookings Cancellation Policy"). Headout agrees that cancellation of Bookings by Customers on the Platform shall be permitted in accordance with the Bookings Cancellation Policy. If the Supply Partner does not specify or submit a Bookings Cancellation Policy, then the Supply Partner shall comply with Headout’s Booking cancellation policy made available on the Platform at all times, which as of the date of this Agreement, permits Customers to cancel their Bookings free of charge and without penalty up to twenty-four (24) hours (or a shorter period as agreed between the Parties) prior to the date and time of the commencement of Services. In the event of a cancellation made in accordance with this Clause, Supply Partner acknowledges and agrees that Headout has no payment obligation to the Supply Partner with respect to the cancelled Bookings. It is clarified that if the Supply Partner conducts/delivers to a Customer Services in respect of a cancelled Booking, Headout shall not be obligated to pay the Service Price in respect of such Services.
The Supply Partner agrees that Customers desirous of cancelling Bookings can affect cancellations only through the Platform. If the Supply Partner cancels Bookings through channels outside the Platform, then the Supply Partner shall inform Headout of the same promptly upon cancellation.
In relation to Headout’s Booking cancellation policy, if a Customer cancels a Booking less than twenty-four (24) hours (or a shorter period as agreed between the Parties) before the appointed time for the Services or fails to appear to avail of the Services at the appointed time plus a fifteen (15) minute waiting period, such Customer will be considered a “no show” and the Service Price (net of Headout Commission) in respect of such Booking will be due and payable (unless remitted) to the Supply Partner in the manner contemplated under this Agreement.
Payment and Chargebacks
Headout will remit to Supply Partner the Service Price net of the mutually agreed Headout Commission. This remittance will be made in the Settlement Currency as mutually agreed between the Parties. Conversion charges, if any, will not be borne by the Headout. The aforesaid remittance will be affected as per the terms mutually agreed between the Parties. Supply Partner is solely responsible for any and all taxes associated with Supply Partner’s activities under this Agreement, including taxes on Supply Partner’s performance of the Services, taxes on Supply Partner’s net income, and any and all local taxes, duties, fees, etc. If Headout pays any such local taxes, duties, fees, etc., Headout may deduct such amounts against future payments owed to Supply Partner (provided that Headout identifies such deducted amounts in writing to Supply Partner).
Headout shall pay the Net Price for Tickets/Vouchers in accordance with Clause 9.1 and may, by mutual agreement, maintain either a Floating Deposit (for Headout Experiences) or an Advance (for Headout Inc) for settlement. The Supply Partner agrees to appropriate the Floating Deposit or Advance towards payment, and Headout may request audited financial statements for assessment, with additional statements sought for any extra payments made under this clause.
If the billing cycle is not ‘upfront settlement’, then Headout shall, provide a statement ("Periodic Statement") of the Bookings within five (5) business days from the completion of the relevant billing cycle as may be mutually agreed between the Parties. The Supply Partner shall be entitled to review and confirm or dispute the Periodic Statement within thirty (30) business days ("Response Time") of receipt of the Periodic Statement. The Parties shall endeavour to finalise the Periodic Statement and settlement of Service Price (net of Headout Commission) to the Supply Partner within thirty (30) business days of completion of the relevant billing cycle. If the Supply Partner fails to confirm or dispute the Period Statement within Response Time, the Periodic Statement shall be deemed to have been accepted by the Supply Partner. Unless disputed by the Supply Partner, Headout shall remit and settle the Service Price (net of Headout Commission) to the Supply Partner within the Credit Period, if it meets the mutually agreeable Minimum Payout Threshold. In case, Minimum Payout Threshold has not been met the payment will be made on the issuance of the next Periodic Statement Headout hereby agrees to generate and issue to the Supply Partner invoices in respect of the Headout Commission.
Notwithstanding the aforesaid, the Supply Partner agrees that Headout’s obligation to remit the Service Price shall not commence until Bookings worth at least the mutually agreed minimum accrual amount and the Service Price for the same are received by Headout.
The Supply Partner agrees that payments made by Customers to Headout through the Platform shall be considered the same as a payment made directly to the Supply Partner, and the Supply Partner shall provide the Services to Customers as if the Supply Partner had received such payments directly from Customers. Customers shall have no obligation to the Supply Partner for any payments (other than the Service Price) and the Supply Partner shall not require any Customer to pay any fees, charges, taxes, duties, expenses, or commissions (other than the Service Price) as a condition to the Supply Partner’s obligation to perform the Services for such Customer. In respect of Bookings received from Customers, if a Customer requests an invoice from the Supply Partner, the Supply Partner shall generate in favour of the concerned Customer an invoice for the concerned Booking. The Supply Partner shall, from time to time, provide such invoices to Headout. If Headout receives a claim under “chargeback” related to the Supply Partner prior to the utilisation of the Booking by a Customer, Headout shall inform the Supply Partner of the same and cancel the Booking. In the event the chargeback is received post utilisation of the Booking, then Headout will forward the claim of chargeback to the Supply Partner and request additional information from the Supply Partner which may be used by Headout in response to the issuer of the payment instrument. The Supply Partner shall respond to such information requests within five (5) business days of receipt of the requrest.
The Parties agree that, in any scenario, Headout shall not be liable to bear any loss in relation to a chargeback claim pertaining to the Supply Partner. If the Service Price has already been remitted to the Supply Partner, for a Booking against which a chargeback is awarded, Headout shall adjust the amount in the following reconciliation with the Supply Partner. If no amount is available to Headout to carry out a reconciliation, then Headout shall be entitled to issue an invoice seeking payment of the relevant amount. The Supply Partner shall pay the amount in respect of such invoice within five (5) business days of issue of the invoice.
De-listing of Supply Partner’s products
With the sole purpose of maintain a positive customer experience for its Customers, Headout may require the Supply Partner to maintain minimum service levels to ensure that the customer experience is not impacted. Customer experience may be impacted by or due to (including but not limited to) the following reasons:
frequent cancellations
unfulfilled Bookings
negative customer reviews, i.e. 3 or below.
Headout’s team will endeavour to work with the Supply Partner to improve customer experience and suggest changes for the Supply Partner to implement to improve customer experience. The Supply Partner should promptly implement the suggestions received from Headout and also work on improving customer experience by itself.
The Supply Partner shall have ninety (90) days, or any such period as mutually agreed between the Parties, to implement changes and improve customer experience in respect of its products. In case the customer experience does not improve and remains at 3 or below, Headout shall be at liberty to de-list the product of the Supply Partner from its Platform. Post de-listing, the Supply Partner may approach Headout to re-list its products with details of the steps taken to improve the product or customer experience. Headout at its discretion may agree to re-list the product of the Supply Partner subject to certain terms and conditions agreed at the time.
In the event of delisting as per this clause, Headout shall be entitled to cancel Bookings made before the delisting and issue refunds to the concerned Customers.
Marketing of and License to Supply Partner Material
Headout unless expressly restricted by the Supply Partner, shall promote and market the product(s) of the Supply Partner. All costs associated with such marketing and promotion shall be borne by Headout. Headout during such promotional activities, may use Supply Partner Material and associated marks of the Supply Partner.
The Supply Partner hereby grants Headout a non-exclusive, worldwide, sublicensable (to Headout’s service providers and affiliates), royalty-free, and fully paid-up license to use, display, distribute, perform, reproduce, market, promote, and otherwise exploit any Supply Partner Materials in connection with Headout’s offering of Supply Partner’s Services on the Platform. It is clarified that the aforesaid license includes the license to use the Supply Partner Materials in promotional and marketing material, including emails to Customers, blogs, flyers, reports on the Platform, in connection with promotion of the Supply Partner’s Services or promotion of the Platform before prospective customers.
The Supply Partner represents and warrants to Headout that the Supply Partner has all rights, authorizations, and licenses to grant to Headout the rights set forth in this Clause and that the use and exploitation of the Supply Partner Materials as authorized hereunder does not and will not infringe, violate, misappropriate, or dilute the intellectual property rights of any third party. The Supply Partner shall communicate to Headout any information pertaining to non-compliance with this Clause forthwith upon the Supply Partner receiving knowledge of the same. As provided in Clause 13 below, the Supply Partner shall be liable to remit directly or reimburse to Headout, any costs paid by Headout to settle any associated with the Supply Partner Material.
Headout shall not be liable to the Supply Partner in respect of any acts or omissions of a third party using the Supply Partner Material. Headout shall use commercially reasonable efforts to restrict or prevent the third party from continuing to use the Supply Partner Material.
The Headout Hub, Headout logo, materials, trademarks, tradenames, Headout website, content on the Headout website (other than the Supply Partner Material and Content) and all intellectual property thereunder are owned solely by Headout ("Headout IP"). The terms or performance of this Agreement does not create any rights or license in favour of the Supply Partner or any other party in respect of Headout IP.
Confidentiality
The Supply Partner shall treat as confidential all Confidential Information of Headout, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement herein, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, the Supply Partner shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, to prevent the disclosure of Confidential Information of Headout. The Supply Partner shall promptly notify Headout of any actual or suspected misuse or unauthorized disclosure of Headout’s Confidential Information.
Confidential Information excludes information that the Supply Partner can show: (i) was in the public domain at the time it was disclosed or has become in the public domain through no act or omission of the Supply Partner; (ii) was known to the Supply Partner, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) was independently developed by the Supply Partner without any use of Headout’s Confidential Information; or (iv) becomes known to the Supply Partner, without restriction, from a source other than Headout without breach of an obligation to keep such information in confidence.
If the Confidential Information of Headout must be disclosed by the Supply Partner pursuant to the order or requirement of a court, administrative agency, or other governmental body, the Supply Partner shall: (i) provide prompt notice thereof to Headout; (ii) use its commercially reasonable efforts to cooperate with Headout to obtain a protective order or otherwise prevent public disclosure of such information; and (iii) limit the disclosure to the particular Confidential Information (or portion thereof) required to be disclosed.
The Supply Partner agrees that the terms and conditions, but not the existence, of this Agreement shall be treated as Headout’s Confidential Information and that no reference to the terms and conditions of this Agreement or to activities pertaining thereto can be made in any form without the prior written consent of Headout; provided, however, that Supply Partner may disclose the terms and conditions of this Agreement: (i) as required by any court or other governmental body; (ii) as otherwise required by Applicable Law; (iii) to legal counsel of the Supply Partner; (iv) in connection with the requirements of an initial public offering or securities filing; (v) in confidence, to accountants, banks, and financing sources and their advisors; (vi) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (vii) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
Upon termination of this Agreement for any reason, the Supply Partner shall deliver to Headout all of Headout’s Confidential Information that the Supply Partner may have in its possession or control or, at Headout’s option, shall destroy all such Confidential Information and certify such destruction in a writing signed by an authorized officer of the Supply Partner.
Data Protection
With regard to Customer’s personal data, Headout and the Supply Partner act separately as data controllers. The Supply Partner shall comply with all data protection laws including, but not limited to, GDPR and the California Consumer Protection Action (“Data Privacy Laws”) when processing (including accessing, collecting, storing, transmitting, and transferring) Customer’s personal data, including, but not limited, providing all required notices. The Supply Partner shall only use the Customer’s personal data for purposes of fulfilling a specific order or transaction, and shall not use Customer’s personal data for any marketing and other purposes. The Supply Partner agrees that as between Headout and the Supply Partner, Headout owns all Customer personal data. The parties shall notify each other of and cooperate with respect to any data subject request from Customers relating to their personal data to the extent required by applicable Data Privacy Laws. Upon termination of this Agreement, except as prohibited by applicable law, upon request of Headout, the Supply Partner shall delete or return to Headout all Customer personal data obtained by the Supply Partner in connection with this Agreement.
The Supply Partner shall maintain adequate security procedures and controls in compliance with Data Protection Laws to prevent the unintended disclosure of, the unauthorized access to, or disclosure or misappropriation of, or any other incident requiring notification to customers or governmental entities (collectively, a "Security Breach") any Customer’s personal data. Upon Headout’s request, the Supply Partner will provide evidence that Supply Partner has established and maintained technical and organizational security measures governing the processing of Customer’s personal data in accordance with this Clause. The Supply Partner shall notify Headout of any Security Breach involving Customer’s personal data within twenty-four (24) hours of discovery or notice of the same, shall provide Headout such information about the Security Breach as Headout reasonably requires, including the nature and scope of the Security Breach, affected individuals, and remediation, and shall cooperate with Headout in coordinating any required notifications. Supply Partner is responsible for all costs, liabilities, claims and penalties arising out of any Security Breach, including any costs of notification to any individual or governmental entity.
The Supply Partner authorizes Headout to appoint and engage the Payment Service Provider, and any other third party authorized by Headout, to process Customer’s personal data required to transfer funds to and from Supply Partner’s accounts, or as otherwise required to operate the Headout Platform. For the purpose of processing such payments, the Supply Partner consents to the Payment Service Provider processing the Customer’s personal data.
The Supply Partner agrees and acknowledges that Headout may transfer data relating to Supply Partner to distribution partners and third parties as necessary to further develop the Platform (including its interfaces to third party products and services) and to promote the Services. Headout is authorised to transfer the necessary data to (i) promote the Services via a third party’s web mapping service, listing service, search engine service, or digital assistant, or (ii) develop and implement relevant interfaces between the Headout Platform and such products and services.
Force Majeure
If a Force Majeure Event prevents a Party from complying with any one or more obligations under this Agreement, that inability to comply will not constitute breach if (i) that Party uses reasonable efforts to perform those obligations, (ii) that Party’s inability to perform those obligations is not because of its failure to (A) take reasonable measures to protect itself against events or circumstances of the same type as that Force Majeure Event or (B) develop and maintain a reasonable contingency plan to respond to events or circumstances of the same type as that Force Majeure Event, and (iii) that Party complies with its obligations under Clause 14.2.
If a Force Majeure Event occurs, the noncomplying Party shall promptly notify the other Party of occurrence of that Force Majeure Event, its effect on performance, and how long the noncomplying Party expects it to last. Thereafter the noncomplying Party shall update that information as reasonably necessary. During a Force Majeure Event, the noncomplying Party shall use reasonable efforts to limit damages to the other Party and to resume its performance under this Agreement.
Indemnification and Limitation of Liability
The Supply Partner shall indemnify, defend, and hold Headout and its employees, directors, agents, and Customers harmless from and against any action, claim, suit, proceeding, demand, investigation, or charge alleging any costs, losses, liabilities, damages, fines, judgments, fees, or expenses (including reasonable attorneys’ fees and court costs) arising out of: (i) the Supply Partner’s performance of the Services; (ii) the Supply Partner’s failure to comply with Applicable Law; (iii) any personal injury, property damage, or death resulting from any act or omission of the Supply Partner; or (iv) the Supply Partner’s breach or alleged breach of this Agreement, including deficiency, inaccuracy or non-compliance with any representations or warranties hereunder. The Supply Partner shall undertake its defense obligation toward indemnification of Headout not later than ten (10) days following the Supply Partner’s receipt of written notice thereof from Headout using counsel reasonably acceptable to Headout. Headout has the right to participate in such defense using its own counsel at its own cost. If the Supply Partner fails to respond to any claim under this Clause and fulfil its obligations hereunder following such ten (10) day period, Headout shall have the right to control the defense and settlement of any such claim using counsel of its own choice. The Supply Partner may not settle any action, claim, suit, proceeding, demand, investigation, or charge under this Clause without Headout’s prior written consent. It is hereby clarified that, in the event of a third party infringement claim concerning the Supply Partner Material, or any notice, direction or order seeking removal of Supply Partner Material from the Platform or any notice, direction or order prohibiting use of Supply Partner Material ("Third Party Claim"), the Supply Partner shall, immediately following Headout’s notification of the Third Party Claim, respond to and endeavour to resolve the Third Party Claim so as to ensure that Headout can continue to use the Supply Partner Material in the manner contemplated under this Agreement.
EXCEPT FOR THE SUPPLY PARTNER’S INDEMNIFICATION OBLIGATIONS, THE SUPPLY PARTNER’S BREACH OF ITS OBLIGATIONS UNDER CLAUSE 7, OR A PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
HEADOUT’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY HEADOUT TO THE SUPPLY PARTNER HEREUNDER IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM HEREUNDER. THE DISCLAIMERS AND LIMITATIONS IN CLAUSE 6.2 AND THIS CLAUSE 15 WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
Term and Termination
The term of this Agreement commences from the Effective Date and shall continue to be valid until terminated.
A Party may terminate this Agreement without cause on thirty (30) days prior written notice to the other Party. A Party may terminate this Agreement if the other Party materially breaches this Agreement and fails to cure such breach within fifteen (15) days of receiving written notice thereof from the non-breaching Party.
Without prejudice to Clause 16.2, Headout shall be entitled to terminate this Agreement on the following grounds:
any material deficiency or inaccuracy in the representations and warranties furnished by the Supply Partner; provided the Supply Partner rectifies the matters pertaining to such representations and warranties within 30 days of receipt of a notice from Headout;
upon occurrence of Change of Control unless the prior consent of Headout is obtained for the Change of Control;
upon an event of bankruptcy of the Supply Partner. Such bankruptcy should have been paased by an appropriate court/authority;
frequent or multiple complaints and grievances received from the Customers in respect of the Services rendered;
the Supply Partner or any of its affiliates voluntarily filing for bankruptcy as per applicable law ("Bankruptcy Filing") or the Supply Partner or any of its affiliates facing a claim for its winding-up, insolvency or liquidation ("Insolvency Claim"). In case of a Bankruptcy Filing or Insolvency Claim, the Supply Partner shall notify Headout of the Bankruptcy Filing or the Insolvency Claim within thirty (30) days of making the Bankruptcy Filing or Insolvency Claim, as applicable. The Supply Partner further agrees that to the extent permitted by Applicable Law, Headout’s claim to the unpaid Floating Deposit shall be treated in the most preferential manner for the purpose of and in relation to the Bankruptcy Filing and Insolvency Claim.
Upon termination of this Agreement, the Supply Partner shall continue to perform Services under Bookings made prior to the effective date of such termination and the terms of this Agreement will continue to apply to such Bookings, provided that Headout reserves the right to cancel such Bookings immediately upon termination. Headout shall, within seven (7) business days of the effective date of termination, remit/deposit the undisputed Service Price amounts (net of Headout’s commission) received in respect of Bookings received prior to the effective date of termination. For the purpose of clarity, it is hereby specified that any license to use the Supply Partner Material shall terminate only upon actual termination of the Agreement or upon a specific notice by the Supply Partner to terminate the license to use the Supply Partner Material, but not upon issue of notice of termination.
Clauses 6 (Representations and Warranties), 9 (Payments, but solely with respect to amounts due and outstanding as of termination), 12 (Confidentiality), 15 (Indemnification and Limitation of Liability), 16.4, 16.5, and Clause 17 (General Provisions) shall survive the termination of this Agreement.
General Provisions
Governing Law and Jurisdiction: This Agreement will be governed by and construed and enforced in accordance with the laws of the State of New York, without reference to conflict of laws principles. Each Party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts in the State of New York with regard to any dispute arising out of or relating to this Agreement. However, the Parties may mutually agree to select a different jurisdiction, subject to their mutual agreement in writing
Injunctive Relief: The Supply Partner acknowledges and agrees that any breach of its obligations with respect to Confidential Information may cause substantial harm to Headout, which could not be remedied by payment of damages alone. Accordingly, the Supply Partner hereby agrees that Headout will be entitled to seek preliminary and permanent injunctive relief in any jurisdiction where damage may occur without a requirement to post a bond, in addition to all other remedies available to it for any such breach.
Independent Contractors: The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either Party the power to direct and control the day-to-day activities of the other or (ii) constitute the Parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking.
Assignment; Binding Effect: The Supply Partner shall not assign or delegate this Agreement or any of its rights, or duties under this Agreement (whether by merger, sale of assets, sale of equity, or otherwise) without the prior written consent of Headout, and any purported assignment shall be void and of no force or effect. A Change of Control of Supply Partner shall be deemed an assignment for the purposes of the consent requirement of this Clause. Headout may freely assign or delegate this Agreement or any of its licenses, rights, or duties hereunder in Headout’s sole discretion. This Agreement will be binding upon and inure to the benefit of the Parties hereto, their successors, and permitted assigns.
Amendments: Headout reserves the right to amend these Terms and Conditions at its discretion, and any such modifications will be effective upon posting on the platform
Partial Invalidity: If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will, nevertheless, remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the Parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect.
No Waiver: No waiver of any term or condition of this Agreement will be valid or binding on either Party unless the same will have been mutually assented to in writing by an officer of both Parties. The failure of either Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other Party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either Party to enforce each and every such provision thereafter.
Entire Agreement: This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and in the event hereto if Parties have entered into another contract with respect to the same subject matter, the Parties shall mutually decide the version of the contract that will prevail.
Notices: All notices and other communications required or permitted under this Agreement shall be in writing and shall be sent by electronic mail or delivered by hand, messenger or overnight or second-day courier service addressed. Each such notice or other communication shall for all purposes of this Agreement be treated as effective or having been given (i) if delivered by hand, messenger or overnight or second-day courier service, when delivered (or if sent via a nationally-recognized overnight or second-day courier service, freight prepaid, specifying next-business-day or second-business-day delivery, one business day or two business days, respectively, after deposit with the courier), or (ii) if sent via electronic mail, when directed to the relevant electronic mail address, and receipt is confirmed by non-automated response. Notices to a Party must be delivered to the address set forth for such Party above, although any Party may furnish, from time to time, other addresses for notices to it.