We are EPICO VIAJES S.L. trading as “EPICO” registered in Spain under company number NIF B67542845 with its registered office at Pt. Merce Rodoreda, 1, 08860, Castelldefels, Barcelona, Spain have agreed with the company described on OPERATOR AGENT AGREEMENT form “Operator” that EPICO will act as Operator’s agent and cash collector in order to offer for sale of Travel Experience (the “Travel Experience”) through EPICO’s internet website.
These General Terms and Conditions, the Operator Agent Agreement and the attached Schedule make up “Agreement”.
- In this Agreement, unless the context otherwise requires the following expressions shall have the following meanings:
- Commission: means the amount paid to EPICO by the Operator for procuring the reservation of Travel Experience by Customers and the provision of associated booking and Customer support services. It’s calculated according to section 3.3 and 3.4 and agreed in OPERATOR AGENT AGREEMENT form;
- Customer(s): any person with whom the Operator enters into a contract for the sale and purchase of Travel Experience via EPICO’s internet website and/or other Distribution Channels;
- Distribution Channels: means new media and digital distribution channels including without limitation www.epico.life, Facebook EPICO’s account, Instagram EPICO’s account, other third party websites;
- Intellectual Property: means any patent, copyright, registered design, trade mark or other industrial or intellectual property right subsisting in respect of the Travel Experience, and applications for any of the foregoing;
- Regulations: means any and all relevant consumer legislation, health and safety legislation and conduct codes relevant for the sale of the Travel Experience; and
- Restricted Information: means any information which is disclosed to a receiving party by the other pursuant to or in connection with this Agreement (whether orally or in writing, and whether or not such information is expressly stated to be confidential or marked as such) and includes (without limitation) information regarding either Party’s business and procedures.
Appointment and payments
- The Operator hereby appoints EPICO as its disclosed agent for the promotion of, and solicitation of, Customers for Travel Experience, and EPICO hereby agrees to act in that capacity, subject to the terms and conditions of this Agreement.
- The appointment and entering this Agreement is done by the Operator clicking on the (“Signature”).
- This Agreement shall come into force on signing and shall be for 12 calendar months from the date of Signature unless sooner terminated in accordance with this Agreement.
- This Agreement will be automatically renewed for an additional 12 calendar month period unless no later than 30 days prior to the expiration of the initial term, either party notifies the other in writing of its decision not to renew.
- This Agreement shall be terminable by either Party giving the other 30 days prior written notice at any time.
- Either Party shall be entitled forthwith to terminate this Agreement by written notice to the other if: (a) that other Party commits any breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; (b) an encumbrance takes possession or a receiver is appointed over any of the property or assets of that other party; (c) that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order; (d) that other party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other party under this Agreement); (e) anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that other party; or (f) that other party ceases, or threatens to cease, to carry on business.
- The Operator shall not during the continuance of this Agreement directly or indirectly prevent EPICO working with any third party supplier of any nature. The Agreement does not grant EPICO with exclusivity to the Operator’s inventory unless agreed between the Parties.
- The Operator will provide EPICO with rates for EPICO to distribute in-path on the Distribution Channels. In consideration for procuring the sales of such Travel Experience in-path to Customers, the Operator will pay EPICO a commission as stated in COMMERCIAL INFORMATION on the OPERATOR AGENT AGREEMENT and it will be calculated on the rate. Such commission may be deducted from the value of the rate that EPICO will remit to the Operator. Commission is calculated and paid on the net Travel Experience revenue and is not paid on taxes.
- All sums payable under this Agreement will be made in Euro (unless otherwise agreed) and are exclusive of any value added tax or other applicable sales tax, which shall be added to the sum in question or otherwise included in any relevant calculation, and where any withholding tax or similar deduction is required to be made, the sum in question shall be paid net of that deduction.
- If either party fails to pay when due any amount payable by it under this Agreement its liability shall be increased to incur interest on the overdue amount from the due date to actual payment (after as well as before judgment) at the rate of 2% per annum above the base rate from time to time of Bank of Scotland.
- Such interest to accrue on a daily basis until full payment of the overdue amount is received by the other party in cleared funds.
- During the term of this Agreement, EPICO will:
- promote, market and conclude sales of the Travel Experience online through one of such Distribution Channels
- promptly submit to the Operator an automatically generated e-mail, in respect of each order obtained by EPICO for the Travel Experience;
- in the event of any claim, complaint or dispute being made or arising by or with a Customer in respect of any of the Travel Experience, refer the details of such claim, complaint or dispute to the Operator; and
- be responsible for obtaining all licences which are necessary to operate the Distribution Channels.
- EPICO shall refer all customer complaints to the Operator and Operator shall recognize all complaints, and have responded to the Customer, within 48 hours of Operator’s receipt of any complaint (whether that receipt has come directly from the Customer or from EPICO).
- Operator will pay EPICO a commission of 10% on all sold Travel Experiences and any other services that were booked and paid via EPICO.
- EPICO will transfer the amount received from the Customer for the Travel Experiences purchased minus the Commission. This payment will be done within a maximum of 14 working days from the day when EPICO receives money from the Customer.
The Operator shall:
- provide EPICO with a working API sharing all the required information related to the Travel Experience in order to be validly intermediated by EPICO through Tour Form too.
- provide EPICO with terms and conditions that apply which EPICO will show to the Customer, especially cancellation policy; in particular, the Operator shall share the information required by EPICO to complete the “Tour Form” meaning a smart recap of the services included in the Travel Experience including, price and Operators Terms & Conditions.
- not change the price of Travel Experience without giving EPICO at least 14 days prior written notice and shall where applicable, continue to accept bookings for Travel Experience which were purchased via the Distribution Channels prior to the price increase with no additional charge for the Travel Experience accruing to the Customer or EPICO;
- ensure that prices, allocations and other relevant details are correct and up to date at the time they are provided to EPICO. The Operator agrees that the rates for the Travel Experiences that it makes available to EPICO hereunder shall be, at all times during the term, less than or equal to the lowest rates provided to any EPICO competitor.
- honour any contracts for the sale of the Travel Experience to Customers concluded on the Operator’s behalf by EPICO in accordance with the terms of this Agreement; the Operator shall ensure that all bookings and sales of Travel Experience are binding (and shall be honoured by the Operator) from the time of acceptance by Customers via the Distribution Channels. In the event Operator have double booked a Travel Experience or it is not available to the Customer for any reason whatsoever after they have booked via the Distribution Channels, Operator shall find an alternative appropriate Travel Experience to the Customer’s reasonable satisfaction.
- promptly deal with any sales enquiries, matters or issues relating to Travel Experience made through EPICO and all post-sales fulfilment including dealing with requests for a tax invoice and where application, any refunds to credit or debit cards for any charges arising beyond the product description of the Travel Experience, changes to bookings or other Customer complaints;
- comply with all the applicable laws and regulations relating to the nature, and sale of the Travel Experience including without limitation, the Regulations;
- supply to EPICO bank details and inform EPICO of any changes which may arise from time to time to facilitate the business accounting process;
- not, at any time, do anything which will harm the reputation of EPICO or cause a derogation of the EPICO brand including any illegal act. The Operator agrees to treat all Customers with due care and respect as those customers that have booked directly with the Operator. Any verifiable instances of EPICO brand derogation by the Operator will be treated as a material breach of the provisions of this Agreement and shall entitle EPICO to immediately terminate this Agreement;
- clearly state on the Tour Form, its cancellation policy, to include the length of time it requires written notice to effect a cancellation, its cancellation charge (if any), check in / out times, and shall only change that policy (or any elements thereof) on written notice to EPICO;
- ensure that all other administration details as specified on the Tour Form are accurate and up to date at all times.
- The Operator must provide EPICO with a guaranteed allocation of Travel Experience to sell, where such allocation shall be notified to EPICO in writing (e-mail). For the avoidance of doubt, EPICO will act solely on written information from Operator – all alterations to allocation details, opening hours or pricing must be made in writing via email.
Intellectual Property Rights
- All rights to the EPICO Website and the content on it remain vested in EPICO at all times.
- The Operator agree to provide EPICO a worldwide, non-exclusive, right and licence to
- use, publish, and advertise Operator’s name, logo and any other brand features through the Distribution Channels for all purposes connected with the sale of Travel Experience (unless stated otherwise in writing);
- display, utilize, adapt and distribute relevant sales and marketing materials including (without limitation) graphics and appropriate visuals required to promote Travel Experience through the Distribution Channels. Any adaptation will first be agreed with Operator; and
- team up Operator’s supplier with any other product potentially available on the Distribution Channels.
- Nothing in this Agreement shall give the Operator any rights in respect of any trade names or trade marks used by EPICO in relation to the Distribution Channels or of the goodwill associated therewith, and the Operator hereby acknowledges that, except as expressly provided in this Agreement, it shall not acquire any rights in respect thereof and that all such rights and goodwill are, and shall remain, vested in EPICO.
- For the purposes of this clause, where terms and expressions used are not defined in this Agreement, they will have the meaning assigned to them by the Regulation (EU) 2016/679 and laws, regulations or statutory instruments enacted thereunder (the “GDPR”) and Data Protection Act 2018 (“DPA”) or otherwise applicable.
- According to Opinion 1/2010 on the concepts of “controller” and “processor” adopted on 16 February 2010 by ARTICLE 29 DATA PROTECTION WORKING PARTY, the Parties acknowledge that for the purposes of data protection law, EPICO and The Operator act as independent Data Controllers of any personal data provided to The Operator by EPICO, its Affiliates including Booking Data and vice versa.
- The Operator shall process the personal data only to the extent, and in such a manner, as is strictly necessary for the purpose of fulfilling and managing Bookings and in accordance with EPICO’s instructions from time to time and any applicable data protection laws. For the avoidance of doubt The Operator shall not under any circumstances use any booking data supplied by EPICO (including email or postal addresses) for any marketing activity.
- The Operator shall ensure that all employees are informed of the confidential nature of the personal data and are bound to confidentiality obligations in respect of that data which are no less protective than those found herein.
- The Operator agrees to process the personal data, that EPICO will pass to The Operator in the context of the execution of the Agreement, only for the purpose to perform its contractual obligations and not to use the personal data for other purposes.
- Each Party shall promptly provide the other party such reasonable cooperation, information and assistance as required from time to time to enable such other party to comply with its obligations under applicable data protection legislation.
- The Parties shall not knowingly perform their obligations under this clause in such a way as to cause the other party to breach any of its obligations under applicable data protection legislation.
- More information about data protection at EPICO can be obtained from [email protected]
- More information about data protection at the Operator can be obtained from the Operator’s website
Representations and Warranties
- Each Party represents and warrants that it has the corporate or other legal right, power and authority to enter into this Agreement and to perform all of the obligations to be performed by it hereunder, and that this Agreement constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
- Without limiting the foregoing, the Operator represents and warrants that it has the corporate or other legal right, power and authority to enter into this Agreement on behalf of and to bind all applicable properties hereunder, and that this Agreement constitutes the legal, valid and binding obligation of and is enforceable against all such properties and their respective owners or management companies.
- The Operator also represents and warrants that:
- it shall fully comply with all applicable national and local laws, rules, legislation and trade regulations relating to the nature and booking of the Travel Experiences including without limitation, and any all applicable anti-slavery and human trafficking laws, consumer legislation; fire, health and safety legislation and conduct codes relevant to the booking of the Travel Experiences, such as Council Directive 90/314/EEC on Package Travel, Package Holidays and Package Tours, and
- it has and shall maintain liability insurance coverage from a reputable insurance carrier, with a minimum coverage equal to an amount consistent with industry standards for similarly situated properties.
Exclusion of Warranties / Limitation of Liability and Damages
- EXCEPT AS SPECIFICALLY PROVIDED HEREIN, NEITHER PARTY MAKES, AND EACH PARTY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, UNINTERRUPTED SERVICE, ANY WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS ESTABLISHED BELOW, OR AS OTHERWISE SET OUT IN THIS CLAUSE, NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES INCURRED BY THE OTHER PARTY, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, EVEN IF THE OTHER PARTY HAS ADVISED THAT SUCH DAMAGES ARE POSSIBLE. IN ADDITION AND EXCEPT AS SET OUT IN THIS CLAUSE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY DIRECT OR INDIRECT DAMAGES OR INDEMNIFICATION OBLIGATIONS IN EXCESS OF EUR 1,000,000. FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS AGREEMENT SHALL ACT TO LIMIT EITHER PARTY’S LIABILITY IN RESPECT OF DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE.
- The Operator shall indemnify, defend and forever hold EPICO, and all of their respective present and former officers, members, shareholders, directors, employees, representatives, and their successors, heirs and assigns), harmless from and against any and all losses, liabilities, costs, damages and expenses (including, without limitation, fines, forfeitures, attorneys’ fees, disbursements and administrative or court costs) (collectively, “Losses”) arising directly or indirectly out of, or relating to, claims of third parties regarding ((i) the failure to honour a valid reservation for a Travel Experience made pursuant hereto, (ii) a Travel Experience provided by the Operator or (iii) the use or display by EPICO of any data provided by the Operator, or (iv) violation or alleged violation of the intellectual property rights of others in the licensed marks and/or licensed content.
- EPICO shall indemnify, defend and forever hold the Operator, and all of their respective present and former officers, members, shareholders, directors, employees, representatives, and their successors, heirs and assigns), harmless from and against liabilities, costs, damages and expenses arising directly out of, or relating to claims by third parties regarding its gross negligence or willful misconduct in the provision of its agency services hereunder.
- The Parties shall notify the other in writing of the nature of the claim as soon as practicable after receiving notice thereof; provided, however, that the failure to give prompt notice shall not relieve the Parties of their obligations except to the extent that the notifying Party does not receive actual notice and is damaged as a result.
- The Parties shall have the right at their own expense to employ separate counsel and to participate in (but not control) any such action. Neither Party shall be liable for any settlement of an action effected without its written consent (such consent not to be unreasonably withheld or delayed) unless such settlement includes as an unconditional term thereof the giving by the claimant to the Party a release from all liability with respect to the claim.
- The Operator agrees to notify EPICO and include in the Tour Form and in any relevant API all taxes imposed for the Travel Experiences booked hereunder or otherwise payable by the Customer. The Operator agrees to remit any and all such taxes to the appropriate taxing authorities as required by law.
- The Operator and EPICO will reasonably and in good faith cooperate with each other in the determination and administration of each party’s tax collection and remittance responsibilities.
- If any deduction for taxes or similar charges is required by the applicable legislation to be made by the Operator on the Commission, the amount of payment due by the Operator will be increased to an amount which, after making these deductions, leaves the payment equal to the agreed Commission.
- Each Party shall at all times during the continuance of this Agreement and after its termination: (a) use its best endeavours to keep all Restricted Information confidential and accordingly not to disclose any Restricted Information to any other person; and (b) not use any Restricted Information for any purpose other than the performance of its obligations under this Agreement.
- Any Restricted Information may be disclosed by the receiving party to: (a) any Customers or prospective customers; (b) any governmental or other authority or regulatory body; or (c) any employees of receiving party or of any of the aforementioned persons, to such extent only as is necessary for the purposes contemplated by this Agreement, or as is required by law and subject in each case to the receiving party using its best endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure is made.
- Any Restricted Information may be used by the receiving party for any purpose, or disclosed by the receiving party to any other person, to the extent only that: (a) it is at the date hereof, or hereafter becomes, public knowledge through no fault of the receiving party (provided that in doing so EPICO shall not disclose any Restricted Information which is not public knowledge); or (b) it can be shown by the receiving party, to the reasonable satisfaction of the disclosing party, to have been known to the receiving party prior to its being disclosed by disclosing party to receiving party.
- Neither Party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations hereunder to the extent that such delay or non-performance is due to any reason beyond its reasonable control (a ‘force majeure’ event) of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.
- If the event of force majeure prevails for a continuous period of 2 calendar months, the Parties shall enter into bona fide discussions with a view to alleviating its effects, or to agreeing upon such alternative arrangements as may be fair and reasonable.
- Notices hereunder shall be given in writing by email to the contacts set out at terms and conditions, or alternatively addressed, in the case of the Operator, to its address indicated on OPERATOR AGENT AGREEMENT form and, in the case of EPICO, to the address detailed at the beginning of this document, Attn: Legal Department. All such notices shall be deemed to have been given and received (a) upon receipt if personally delivered or sent by certified or registered mail and (b) when delivery is confirmed if sent by overnight or other courier or delivery service.
Amendment and Waiver
- Any amendment to this Agreement must be in writing and signed by the Operator and EPICO.
- Notwithstanding the foregoing, EPICO may update the terms and conditions of this Agreement by providing the Operator with thirty (30) days’ written notice. If the Operator does not notify EPICO before the expiration of such thirty (30) day period that it chooses not to accept such updated terms and conditions, the Operator shall be deemed to have accepted the same. In the event that the Operator chooses not to accept such updated terms and conditions, EPICO shall have the option to terminate this Agreement.
- No term or condition of this Agreement shall be deemed waived, and no breach shall be deemed excused, unless such waiver or excuse is in writing and is executed by the Party against whom such waiver or excuse is claimed.
- This Agreement contains the entire agreement and understanding between the Parties with regards to the subject matter hereof, and supersedes all prior and contemporaneous oral or written agreements and representations.
- The provisions contained in the present Agreement shall prevail over any competing provisions contained in any other document(s) as well as any future ones so long as they were adhered to whilst the Agreement was still in force and to the extent permitted by law.
- Neither this Agreement nor the cooperation of the Parties contemplated hereunder shall be deemed or construed to create any partnership or joint venture between the Parties.
- The Parties consent to the electronic signature of this Agreement via click through the Signature which shall be deemed by the Parties as valid execution of the Agreement.
- Neither Party shall assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed). Notwithstanding the foregoing, EPICO may assign this Agreement or any of its rights and obligations hereunder without such consent to any of its corporate affiliates or as part of a merger, consolidation, corporate reorganisation, sale of all or substantially all of its assets, sale of stock or other ownership interests, change of name or like event.
- In the event that any provision of this Agreement is determined to be invalid, unenforceable or otherwise illegal under applicable law, such provision shall be deemed restated to reflect as much as possible the original intentions of the Parties and shall not, in any event, affect any other provision hereof.
- Section headings and brief summaries are for convenience only and shall not be considered in construing this Agreement.
- This Agreement has been fully reviewed and negotiated by the Parties having had the opportunity to be assisted by counsel. Accordingly, in interpreting this Agreement, no weight shall be placed upon which Party (or its counsel) drafted the provision or language being interpreted.