WHM GLOBAL markets to hoteliers, for use on their Internet sites, the “WHM GLOBAL SYSTEM” consisting of the online hotel room reservation software designed by it and various services and service provisions that it has developed around this software.
The WHM GLOBAL SYSTEM enables the CLIENT in particular to directly manage, in real time, the pricing conditions and the availabilities in terms of the rooms offered to visitors to the site (these visitors are also known as “Internet User(s)”), by possibly distinguishing between various categories among these Internet Users, and to obtain statistical data and promotional tools. This direct management is carried out using a specific interface. Hereinafter referred to as the “Hotelier Interface’. To access it and to grant access to the specific categories of Internet Users (travel agencies or other industry users in receipt of negotiated rates), the CLIENT is given one or more “Access Code(s)” and “Passwords(s)”.
The CLIENT whose business consist of the direct or indirect operation of Hotel rooms or the proposal of commercial services or the management of a hotel brand for which it is the source, the representative or one of the components, hereby slates its interest in the use of the WHM GLOBAL SYSTEM.
The Contract comes into existence only on the signing by WHM GLOBAL, which takes place after that by the CLIENT. This Contract cancels and replaces all existing proposals or agreements, written or verbal between the parties and covering the WHM GLOBAL SYSTEM. This Contract can only be modified by a written addendum signed by both parties.
These General Conditions constitute, with the other elements of the Contract, an indivisible whole in the absence of which the parties would not have contracted. It prevails over any General Conditions of Purchase of the CLIENT.
WHM GLOBAL grants to the CLIENT, without exclusivity for this latter, a right of use in the WHM GLOBAL SYSTEM for the Official Internet Site(s) including, other than access to the system itself, the Customization by the CLIENT of the WHM GLOBAL SYSTEM in terms of colors, logos and photos, the hosting of data, dedicated telephone assistance (“Hotline”), the making available of various statistics and the updates to the WHM GLOBAL SYSTEM, all in accordance with the terms and conditions as defined herein.
Throughout the term of the Contract, including its initial period and any renewals, the CLIENT is required to use the WHM GLOBAL SYSTEM exclusively as the reservation system on the Official Internet Site(s) of the Hotel(s), to the exclusion of any other Internet reservation system, including by forms, end must only offer room reservation on the Internet through this or these Official Internet Site(s), with the exception of specific distribution agreements in favor of Internet sites belonging to third parties, such as tour operators, travel agencies, travel portals, etc.. This is only waived by written approval from WHM GLOBAL
Initial Term of use will be mentioned in the contract specification.
Each of the Parties can end the Contract at the expiry of the current period, by sending a recorded delivery letter with acknowledgement of receipt stating this to the other Party, subject to a period of notice of at least sixty (60) days prior to the anniversary date of the Contract. Failing this notice within the deadline, the Contract is automatically renewed for a further period of 24 (twenty four) months.
The ending of the Contract results in the removal of the link between the Official Internet Site and the WHM GLOBAL software, as well as all other WHM GLOBAL services supplied under the Contract. It does not imply the giving up by WHM GLOBAL of any sums payable for service provisions provided, ongoing or yet to be delivered under the Contract.
In the event of the CLIENT failing to comply with the term of the Contract as stated and ending it early and unilaterally, it is hereby agreed and accepted by the CLIENT that this latter remains liable with regard to WHM GLOBAL for compensation for the loss of earnings suffered in terms of the remaining period of time from the early termination until the normal expiry of the Contract.
The Parties agree that this loss of earnings will be contractually fixed, assessed as follows:
Compensation = Monthly average of all commissions net of taxes invoiced by WHM GLOBAL to the CLIENT for the 6 (six) month period preceding the date of the early ending of the Contract, multiplied by the number of remaining months as at the date of termination, with a minimum amount of compensation of one thousand five hundred pounds (£1,500) due under all circumstances and intended to as a penalty for the default by the Client concerning the Period of the Contract.
In the event of contract being automatically renewed for a further 24 (twenty-four) months, the notice period for early termination would be revised to at least 90 (Ninety) days prior to the triggering date.
In the event of the CLIENT failing to give the set prior notice, termination of the services would legally make the client liable for, higher of, (a) Monthly average of all commissions net of taxes invoiced by WHM GLOBAL to the CLIENT for the 6 (six) month period preceding the date of the early termination of the Contract OR (b) a minimum amount of compensation of one thousand five hundred pounds (£1,500).
For the effectiveness of the WHM GLOBAL SYSTEM and the balance of the Contract, there can only be one Official Internet Site per Hotel, with the exception of a site grouping all of the Hotels of a single group as well as the specific site for each Hotel. A single Official Internet Site can however give access to several Hotels.
WHM GLOBAL will forward to the CLIENT and its webmaster within a maximum of fifteen working days following the training of the personnel of the CLIENT, the information required for the implementation of the WHM GLOBAL software on the Site.
The CLIENT agrees to place the WHM GLOBAL SYSTEM online within a maximum period of 15 days after the training. For this, the CLIENT agrees namely to instruct the webmaster of its site to insert the links to the WHM GLOBAL software on the pages of its Official Internet Site, and in general to request all the work required and useful from its computer system suppliers end service providers
7.1: Changes to the CLIENT’s Official Internet Site
The CLIENT agrees that its Official Internet Site will remain dedicated for the hotel industry. The CLIENT agrees not to install access to the WHM GLOBAL SYSTEM on other Internet sites without the express written authorization of WHM GLOBAL which it shall remain free to grant or refuse without any requirement to state the reasons.
Furthermore, the CLIENT must immediately notify WHM GLOBAL of any change in the address of its Official Internet Site and request the prior agreement of WHM GLOBAL for the continuation of the Contract on the new site. Any change in the site, without the prior agreement of WHM GLOBAL, is comparable. IfWHM GLOBAL so deems at its sole discretion, to an early termination of the Contract at the fault of the CLIENT and gives rise to the application of the penalty as defined in the “Duration / Expiry” Article.
7.2:Updating the technical datasheets of the CLIENT’S Official Internet Site
The CLIENT further agrees, subject to its sole liability, to enter exactly and to accurately maintain up to date all the information required for the proper operation of the WHM GLOBAL SYSTEM and notably the availability of rooms and the descriptive data of the Hotel (price, facilities, etc.).
7.3: Delivery by the CLIENT of reservations made
The CLIENT agrees to supply to Internet Users the service provisions relating to their reservations made by means of the WHM GLOBAL SYSTEM, and notably at the stated rates, VAT rates and quality details and facilities.
In the event of dehosting or the impossibility of delivering the service provisions subject to the stated conditions, the CLIENT agrees to follow industry practice and notably to provide accommodation at least equivalent to that covered by the reservation and to bear all additional costs that may arise.
7.4: Access Codes and Passwords
The CLIENT is solely liable for the use of the Access Codes and Passwords as allocated by WHM GLOBAL, for the use of these, as well as for their confidentiality. The CLIENT can however change its Password at any time and subject to its liability, by using the Hotelier Interface. The CLIENT also agrees to communicate the Access Codes and Passwords allocated by WHM GLOBAL only to those Internet Users for which they are intended, and this solely by personalized means, with the exception of any making available on an Internet site.
7.5: Content of the CLIENT’s Internet site
The CLIENT is solely liable for the contents of any site it creates, and notably the Official Internet Site, and for its accuracy, its legality, relevance, comprehensiveness and its reliability.
The CLIENT declares and guarantees to WHM GLOBAL that the information and elements communicated by it or present on its sites, are honest, accurate, fair and in accordance with the law, and notably that the rates communicated for comparison and price references, correspond with the normal and real prices actually used in the Hotel, excluding notably artificially increased “rack” rates, and also that this information and these elements do not infringe any third party rights and in particular the copyrights, trademark and other intellectual property ownership rights of third parties.
The CLIENT agrees that the content of its site, and notably its commercial proposals and its reservation pages comply with all applicable legislation, in particular that relating to the protection of consumers, the statement of its General Conditions of Sale, in particular for cancellations, concerning advertising, distance and Internet selling.
7.6: Guarantee against third party complaints
The CLIENT agrees to guarantee WHM GLOBAL against all claims by Internet Users or other third party sites concerning the content of the site or the information and images used by WHM GLOBAL and the service provisions of the CLIENT and agrees to indemnify WHM GLOBAL for any rulings that may be made against this latter, as well as for all losses, direct and indirect, including court costs and reasonable fees for legal representation, that may arise for WHM GLOBAL.
7.7: Possibility of secure payment system
WHM GLOBAL does not offer a secure payment system but can examine the possibility of interfacing with such systems. Any work by WHM GLOBAL is invoiced, in the basis of a prior quotation.
7.8: Security for the numbers and debiting of the payment/credit cards of Internet Users
An Internet User enters a payment or credit card number into the WHM GLOBAL SYSTEM to confirm the reservation, and to guarantee the availability of the room.
The CLIENT must ensure the security of the card number and keep it away from any use; the card must only be debited in the following case.
The payment or credit card can only be debited by the CLIENT if the Internet User does not show up to use the room and does not cancel the reservation (“no-shows”), and provided that this option is included in the CLIENT’s General Conditions of Sale and that these were communicated to the Internet Users.
8.1: Operation of the WHM GLOBAL SYSTEM
WHM GLOBAL operates the WHM GLOBAL SYSTEM in accordance with industry good practice and the normally applied standards in the matter.
8.2: Maintenance and upgrading of the WHM GLOBAL SYSTEM
WHM GLOBAL works to ensure the evolution of the WHM GLOBAL SYSTEM. WHM GLOBAL shall be free to assess the method and the frequency of any upgrading, with regard notably to the matter of the stability and regularity of the service, the speed and the range of technical developments and the expectations and uses of the Internet. For the purpose of carrying out the maintenance and/or upgrading of the WHM GLOBAL SYSTEM, WHM GLOBAL can interrupt or suspend access to the WHM GLOBAL SYSTEM, for the time required to make any necessary corrections. Any interruptions to the Access to the WHM GLOBAL SYSTEM, for the purposes of the maintenance and/or upgrading of the WHM GLOBAL SYSTEM notably, are required for the WHM GLOBAL SYSTEM and the CLIENT cannot claim any compensation as a result.
WHM GLOBAL is only liable for damage or share of damage resulting from its own gross and deceitful negligence. WHM GLOBAL cannot be held liable in the following and non- exhaustive list of cases:
Under no circumstance can WHM GLOBAL guarantee any indirect damage, and notably any loss of earnings, loss of customers, loss of reputation.
The WHM GLOBAL guarantee is in any case limited globally with regard to the CLIENT and under the Contract including any extended period and/or renewal of the contract, to the amount of the remuneration paid by the CLIENT to WHM GLOBAL under this Contract.
It is the responsibility of the CLIENT to take all useful steps to understand the specific characteristics of the hardware, software, data processing and telecommunications systems and networks, to obtain such advice as it deems useful in the matter. The CLIENT understands and accepts these characteristics and the constraints and risk generated.
WHM GLOBAL has no control, of any sort, over the nature or the characteristics of the data that may be carried through its server Centre.
The Internet User makes the reservation through the WHM GLOBAL SYSTEM directly with the CLIENT and contracts directly with this letter and WHM GLOBAL is not at any time a party to the contract agreed between them.
10.1: Joining fee and connection fee
The joining fee and connection fee are payable by the CLIENT on signing the Contract, are final and irreducible, and thus retained under all circumstances by WHM GLOBAL.
10.2: Commissions on reservations made through the WHM GLOBAL SYSTEM
Commission rates:The CLIENT agrees to pay to WHM GLOBAL on the reservations made by means of the WHM GLOBAL SYSTEM remuneration in the form of a commission with a rate applicable on the date of the signing of the Contract as stated in the Contract. VAT is additional whenever required by law.Rate reviews:The financial conditions can be revised on 1st January of each year. WHM GLOBAL will then inform the CLIENT of the new price list with the revised commission rates and service provision prices, at the latest one month prior to their entry into force that is prior to 30 November of the current year. The CLIENT has a period of fifteen days as of this communication of the new price list to accept or refuse the new pricing conditions. The failure to respond is deemed as being acceptance of the new price list. In the event of the refusal the previous pricing conditions will continue in force until 31 December of the current year and WHM GLOBAL can, if it so decides, terminates the Contract for that date or for any subsequent date, but subject to the condition, in the second case, of notifying the CLIENT fifteen days in advance.
Commission bracket: Amount of ReservationsThe Amount of Reservations, which forms the bracket for the commissions due to WHM GLOBAL, means the total amount invoiced to the Internet User on the basis of the prices entered by the Hotel in the WHM GLOBAL SYSTEM, for the stay reserved by the Internet User, and including all the options and service provisions selected by this latter on the WHM GLOBAL SYSTEM (such as: flowers, champagne etc.); the commission is due for any reservation confirmed through the WHM GLOBAL SYSTEM and that has not been cancelled such as stated herein below.
The commission does not include:
Changes to the characteristics of the stay within the WHM GLOBAL SYSTEM
In the event of changes by the Internet User to the characteristics of the stay, the CLIENT can enter the changes online by means of the Hotelier Interface. For changes in the characteristics of the stay, made prior to or during the stay, to be taken into account, it is essential that they are entered in the WHM GLOBAL SYSTEM before the end of the month of the date of the end of stay. In any case, the total amount for any corrections for changes in the stay cannot exceed 10% (ten percent) of the amount of commission due before the corrections for the reservations for the month, excluding GDS reservations.
Final nature of the invoices
No cancellation, ‘no-show” or additional changes to the conditions of the stay can be taken into account once WHM GLOBAL has issued the invoices.
WHM GLOBAL draws up an invoice each month containing a list of the reservations consumed in the month, such as produced by the WHM GLOBAL SYSTEM.
The CLIENT must notify WHM GLOBAL in writing of any change of billing address in good time prior to the issuing of the invoicing.
The invoicing currency is the Euro. With the exception of the case as defined in the “Deferred Payment Article, payment of the invoices must be made by the CLIENT in cash as of receipt of the invoice, without discount, by automatic monthly standing order, transfer, cheque or bank card.
All the banking costs associated with the CLIENT’s payment and paid by WHM GLOBAL are re-invoiced in full to the CLIENT as a supplement to the remuneration, against documentary proofs.
11.2: Interest on late payment
If any payment is not paid according to its agreed terms, and unless stated otherwise in the contract, WHM GLOBAL will exercise its statutory right to claim interest (at eight per cent over the Bank of England base rate) and compensation for debt recovery costs under the late payment legislation.
12.1: Respect for the intellectual property rights of WHM GLOBAL
The CLIENT agrees to respect the intellectual property rights of WHM GLOBAL, and notably the intellectual property rights that WHM GLOBAL holds under all names, titles, logos, brands, software, intellectual creations and databases.
The CLIENT agrees not to register, during the period of the Contract, of after its expiry, on whatever grounds, directly or indirectly, through any intermediary, in any country, one or more brands, titles, logos, identical, similar or comparable to the brands, titles, logos of WHM GLOBAL or that could cause confusion in the mind of third parties.
The CLIENT will inform WHM GLOBAL, without delay, of any infringement of the intellectual property rights of WHM GLOBAL of which it becomes aware.
12.2: WHM GLOBAL Software
WHM GLOBAL alone holds and retains, under all circumstances, the ownership of the software which the CLIENT is authorized to use only for its Official internet Site, and solely for the execution of the Contract.
The Contract does not transfer any right of ownership in all or some of the elements of the software to the CLIENT. This latter fully acknowledges the originality, globally and in each of these elements and is prohibited from any claims in this regard.
The CLIENT has no right of access to the software source codes. Unless expressly agreed otherwise by WHM GLOBAL, the CLIENT must leave all copyright statements as complying with the law and practices, on all of the reservation pages of its site on which all or part of WHM GLOBAL SYSTEM appears.
These same provisions apply to any other software, software elements and software developments, already made or that could be made by WHM GLOBAL.
Each of the Parties agrees to comply with the current applicable regulations for the implementation of any process relating to data of a personal nature to which it is subject.
The CLIENT is responsible for any processing of the data of the Internet Users for the requirements of the execution of the Contract and/or at its request.
WHM GLOBAL is the owner of the data resulting from the operation of the WHM GLOBAL SYSTEM and its databases. WHM GLOBAL can specifically use this data as it deems fit for all management, reservation invoicing, statistical processing and data marketing operations, subject to the sole condition in this case of the legal requirements in the matter.
In the event of the failure on the part of the CLIENT in any of its obligations arising under the Contract, WHM GLOBAL can, if it so decides, lawfully terminate the Contract, fifteen days after sending a recorded delivery letter with acknowledgement of receipt giving the CLIENT formal notice to rectify the failure and this remaining without effect within this time period, without prejudice to any damages that WHM GLOBAL may be entitled to as a result of the noted default, and in particular, for the damages of the penalty as stated in the Duration / Expiry” Article because of the early termination of the Contract.
WHM Global reserves the right to terminate this contract, provided a thirty (30) days notice period is submitted in writing.
WHM GLOBAL can decide, in the event of the failure of the CLIENT in any of its obligations, as an initial penalty, and without prejudice to its right to terminate the Contract, to immediately, and without other notice, suspend all or part of its services. The suspension of the WHM GLOBAL services shall result in all outstanding balance becoming immediately due to WHM GLOBAL by the CLIENT, without prejudice for any damages to which WHM GLOBAL may claim.
All information submitted or disclosed by one of the Parties to the other Party in regard to the Contract must be kept confidential by this latter. Each of the Parties takes all necessary measures to protect the confidentiality of the information supplied by the other Party.
Each of the Parties agrees not to disclose to any third party without the express written authorization of the other Party this confidential information or to allow access to such information except:
Any tolerance in the application of this Contract does not imply any abandoning of the enforcement of the Clauses in question or the defaulting on these.
If one or more of the provision of the Contract are held to be null and void, or ruled as such by a final ruling of a competent court, the other provisions shall retain their application and scope and the Parties shall make every effort to substitute clauses with comparable effects for the null and void provisions.
For any notification in execution of the Contract the Parties respectively elect domicile at their head offices. Notice must be given of any changes in these.
THE CONTRACT SHALL BE CONSTRUED AND GOVERNED IN ACCORDANCE WITH THE LAWS OF ENGLAND. ANY DISPUTES ARISING FROM THE INTERPRETATION, EXECUTION OR TERMINATION OF THE CONTRACT SHALL BE SUBMITTED TO THE TRIBUNAL OF LONDON.
The Parties hereby accept the legal value of any fax exchanged between them as being the same as a handwritten document.
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