- The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement: these Terms of Service together with any Order Forms and Statements of Work agreed between the parties and any ancillary agreements or documents referred to herein.
Affiliate: any entity directly or indirectly controlling or controlled by or under direct or indirect common control with another entity; and “control” means the power, directly or indirectly, to direct, or cause the direction of the management and policies of an entity through the ownership of voting securities, by contract or otherwise.
Authorised Users: those employees, contractors, subcontractors, and agents who are authorised by Client to use the Services.
Business Day: a day other than a Saturday, Sunday or public holiday in Ireland when banks in Dublin are open for business.
Business Hours: 9.00 am to 5.30 pm local Irish time, each Business Day.
Client: the client identified in the Order Form.
Client Data: the information and data inputted by Client, Authorised Users, or Trave on Client’s behalf for the purpose of using the Services or facilitating Client’s use of the Services.
Confidential Information: all documentation, technical information, software, business information, feedback, trade secrets or know how or other materials of a confidential nature or that are disclosed in confidence by either party to the other during the term of this Agreement.
DPA: the Data Processing Agreement attached at Schedule 1.
Data Protection Laws: the provisions of the EU General Data Protection Regulation 2016/679 (the “GDPR”) and all national legislation implementing or supplementing the foregoing and all associated codes of practice and other guidance issued by any applicable data protection authority, all as amended, re-enacted and/or replaced from time to time, and any other applicable legislation relating to the collection, processing, transfer, or retention of personal data.
Effective Date: the date as set out on the Order Form.
Fees: the fees for the Services as set out in the Order Form.
Initial Term: the initial term of this Agreement as set out in the Order Form.
Intellectual Property Rights: patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, source code and all intellectual property rights concerning a technology application, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action).
Order Form: the form signed by Client confirming the order for the Services subject to these Terms of Service. Order Form shall include any subsequent ordering document for services that is signed by the parties specifically referring to this Agreement.
Renewal Term: the periods of twelve (12) months each as described in clause 11.1.
Services: access to the Trave Platform and any other services as more particularly described in the Order Form.
Platform: the cloud-based software-as-a-service currently known as “Trave,” including, without limitation, Trave’s software platform, systems, servers, APIs, website, mobile application(s), and associated Trave Technology that is owned, licensed, or operated by Trave or Affiliates and made commercially available pursuant to this Agreement.
Term: means the Initial Term together with any subsequent Renewal Terms.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
- Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. A reference to writing or written includes e-mail.
- Subject to the terms and conditions of this Agreement, Trave hereby grants to Client a non-exclusive, non-transferable right, without the right to grant sublicences, of access to and use of the Services during the Term.
- Client may designate an Authorised User as an administrator (or “master” administrator) with control over Client’s service account, including management of Authorised Users and Client Data. Client is fully responsible for its choice of administrator and any actions they take. Client agrees that Trave’s responsibilities do not extend to the internal management or administration of the Services for Client.
- In relation to the Authorised Users, Client undertakes that:
- Each Authorised User shall keep a secure password for their use of the Services and that each Authorised User shall keep his password confidential; and
- If through any investigation it is revealed that any password has been provided to any individual who is not an Authorised User, then without prejudice to Trave’s other rights, Client shall promptly disable such passwords and shall not issue any new passwords to any such individual.
- Certain additional services requested by Client may be agreed in a Statement of Work. Client will give Trave timely access to any Client materials reasonably necessary for these services, and if Client fails to do so, Trave’s obligation to provide these services will be excused until access is provided. Trave shall provide these services with reasonable skill and care in accordance with the agreed Statement of Work.
- If Client receives access to the Services on a free or trial basis or as an alpha, beta or early access offering (“Trials and Betas”), use is permitted only for Client’s evaluation during the period designated by Trave or agreed in the Order. Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be incomplete or include features that Trave may never release, and their features and performance information are Trave’s Confidential Information. Notwithstanding anything else in this Agreement, Trave provides no warranty or indemnity for Trials and Betas and its liability for Trials and Betas will not exceed €100.
- CLIENT’S OBLIGATIONS
- Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Trave.
- Client shall be responsible for the acts and omissions of its Affiliates and Authorised Users who access the Services, as though they were the acts and omissions of Client. Client shall defend, indemnify and hold harmless Trave and its officers, employees, agents and subcontractors against all claims, demands, damages, awards of damages, losses, liabilities, costs and expenses (including any reasonable legal fees) that result or arise in connection with the acts or omissions of Client’s Affiliates and Authorised Users.
- Client shall not during the course of its use of the Services access, store, distribute or transmit any Viruses, or any material that: (i) is unlawful, harmful, threatening, discriminatory, defamatory, obscene, infringing, harassing or racially or ethnically offensive; or (ii) facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence; or (iii) is discriminatory or otherwise illegal or causes damage or injury to any person or property; (iv) contains any unsolicited or unauthorized advertising, promotional or marketing materials; or (v) encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation.
- Client shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement; (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Services; (iii) access all or any part of the Services in order to build a product or service which competes with the Services; or (iv) work around any technical limitations in the Services.
- Client shall: (i) comply with all applicable laws and regulations with respect to its activities under this Agreement; (ii) obtain and shall maintain all necessary licences, consents, and permissions necessary for Trave, Affiliates and subcontractors to perform their respective obligations under this Agreement; and (iii) ensure that its network and systems comply with specifications provided by Trave and will be solely responsible for procuring and maintaining its network connections and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Client's network connections or telecommunications links.
- Without prejudice to Trave’s other rights in law or equity, Trave reserves the right, without liability to Client, to suspend or disable Client’s or any Authorised Users access to the Services where Client breaches the provisions of this clause 3 and Client shall not thereby be entitled to claim any refund or compensation for such suspension. Given the nature of the obligations in this clause 3 and the impact a breach of same could have on Trave, the Services and Platform, no remedy period shall be granted to Client prior to Trave exercising the suspension rights herein.
- FEES AND PAYMENT
- Trave shall invoice Client and Client shall pay the Fees in accordance with the provisions of the Order Form and this clause 4. Fees for Renewal Terms are as specified in the Order Form or if not specified shall be at Trave’s then-current rates, regardless of any discounted pricing in a prior Order.
- If Trave has not received payment of undisputed Fees within fifteen (15) days after the due date in accordance with the payment terms set out in the Order Form, and without prejudice to any other rights and remedies of Trave, Trave may subject to providing a further fifteen (15) days’ written notice, without liability to Client, disable Client’s password, account and access to all or part of the Services and Trave shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid. In addition, interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8 percentage points above the European Central Bank’s reference rate or if such rate shall exceed any applicable permissible legal interest rate, then at the highest legally permissible rate, commencing on the due date and continuing until fully paid, whether before or after judgment.
- All amounts stated or referred to in this Agreement are non-cancellable and non-refundable unless stated elsewhere in the Agreement and are exclusive of all sales, use, value-added, withholding and other taxes and duties which shall be added to Trave's invoice(s) at the appropriate rate. Client will pay all taxes and duties (including withholding tax) assessed in connection with this Agreement. Client shall pay all Fees in full without set off or counterclaim.
- Trave reserves the right to change the Fees and/or to institute new charges and fees at the end of the Initial Term or then-current Renewal Term, upon thirty (30) days prior notice to Client.
- SUPPORT AND MAINTENANCE
- Client may contact Trave for support in relation to the Services during Business Hours by contacting firstname.lastname@example.org.
- From time to time it may be necessary for Trave to complete maintenance on the Trave systems and Platform. If the maintenance is likely to result in unavailability of the Services then Trave will endeavour to advise Client in advance. Unscheduled maintenance in respect of a significant event may be required to be performed at any time without notice.
- WARRANTIES AND DISCLAIMER
- Each party warrants that it has the full corporate power (i) to enter into this Agreement, (ii) to carry out its obligations hereunder, and (iii) to grant the rights herein granted to the other party.
- Client warrants that Client Data, material, content or links provided to Trave by or on behalf of Client: (i) are owned by Client or are provided with the express consent from the third party holding any ownership rights (including copyright) over such material, or, alternatively, are in the public domain, and are not owned by any third party or otherwise covered by copyright laws; (ii) do not breach the rights of any person or entity, including rights of publicity, privacy, or under applicable Data Protection Laws or direct marketing laws and are not defamatory; and (iii) do not result in consumer fraud (including being false or misleading), product liability, tort, breach of contract, breach of Intellectual Property Rights, injury, damage or harm of any kind to any person or entity.
- Other than with respect to the express warranties set forth herein, the Services are provided “as is” and all warranties express or implied, representations, conditions and all other terms of any kind whatsoever implied by statute or common law, including those of non-infringement, merchantability and fitness for a particular purpose, all are, to the fullest extent permitted by applicable law, are hereby disclaimed and excluded by Trave from this Agreement. Client is solely responsible for determining the suitability of the Services for its use in light of any applicable legislation or regulations including without limitation Data Protection Laws.
- Trave does not warrant that Client’s use of the Services will be uninterrupted or error-free or that the Services will operate in combination with third party services used by Client save where otherwise agreed. The Service may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. Trave is not responsible for any delays, delivery failures, or other damage resulting from the transfer of data over communications networks and facilities, including the internet.
- Client may choose to use the Services with third-party platforms, and details of any agreed implementation to be carried out by Trave shall be set out in the description of Services or an SOW. Use of third-party platforms is subject to Client’s agreement with the relevant provider for that platform and not this Agreement. Trave does not control and has no liability for third-party platforms, including their security, functionality, operation, availability or interoperability or how the third-party platforms or their providers use Client Data. If Client enables a third-party platform with the Services, Trave may access and exchange Client Data with the third-party platform on Client’s behalf.
- Trave reserves the right to introduce new or enhanced features and functionalities to the Services which do not negatively impact the Services.
- In providing its Services under this Agreement, Trave may be required to process personal data on Client’s behalf. In such circumstances, the parties record their intention that Client and its Affiliates (as applicable) shall be the controller and Trave shall be a processor and each party shall comply with the DPA.
- Client acknowledges and agrees that Trave may collect and use anonymised data from the Platform relating to outcomes, usage data and other information. To the extent relevant in the context of Data Protection Laws and personal data, this data shall be irreversibly anonymised and shall therefore no longer be considered personal data under Data Protection Laws.
- INTELLECTUAL PROPERTY RIGHTS
- Client acknowledges and agrees that Trave and/or its licensors own all Intellectual Property Rights in the Services and Platform (including any modifications or enhancements thereto howsoever arising). Except as expressly stated herein, this Agreement does not grant Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services and Platform.
- Client shall own all right, title and interest in and to all of Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data. Client hereby grants to Trave a non-exclusive, royalty free, sub-licensable and perpetual licence to use the Client Data to the extent reasonably required for the performance of this Agreement including to the extent required to train future machine learning models.
- Trave will indemnify Client in respect of any and all damages, awards of damages, losses, costs, expenses, fees (including reasonable legal fees, fines and penalties) to the extent arising out of claims by third parties that the Services infringes a third-party’s copyright, trademark existing or patent granted as of the date of delivery in any country in which the Services are delivered. If Services are or are likely to be held to be infringing, Trave will at its expense and option either: (i) procure the right for Client to continue using it; (ii) replace it with a non-infringing equivalent; (iii) modify it to make it non-infringing; or (iv) terminate this Agreement and refund to Client fees paid for any unused portion of the Services.
- Notwithstanding the above, Trave shall have no liability to Client to the extent that any claim is based upon: (i) modifications to the Services made by anyone other than Trave or a party authorised by Trave; (ii) combination of the Services with software not provided by Trave or specified in an agreed SOW; (iii) Client’s failure to use modifications to the Services provided by Trave to avoid infringement or misappropriation; (iv) unauthorised use or misuse of the Services; or (v) any Trials and Betas or other free or evaluation use.
- The rights granted to Client under Clause 9.1 shall be Client’s sole and exclusive remedy and Trave’s entire liability for any alleged or actual infringement of Intellectual Property Rights of any third party.
- Client shall defend, indemnify and hold harmless Trave and its officers, employees, agents and subcontractors from and against all claims, demands, damages, awards of damages, losses, costs, expenses and liabilities (including all reasonable legal fees) that result from or arise in connection with Client or its Authorised User’s: (i) unauthorised use of the Services; (ii) infringement or violation of Trave’s Intellectual Property Rights; (iii) breach of applicable law; (iv) violations of third party rights due to Client’s use of the Services; or (v) material breach of this Agreement including any warranties or representations.
- If any action shall be brought against one of the parties hereto in respect to which indemnity may be sought against the other party (the "Indemnifying Party"), the Indemnifying Party’s obligation to provide such indemnification will be conditioned on prompt notice of such claim (including the nature of the claim and the amount of damages and nature of other relief sought) being provided to the Indemnifying Party by the party against which such action is brought (the "Indemnified Party"). The Indemnified Party shall cooperate with the Indemnifying Party in all reasonable respects in connection with the defense of any such action at the expense of the Indemnifying Party. The Indemnifying Party will, upon written notice to the Indemnified Party, conduct all proceedings or negotiations in connection with the action, assume the defense thereof, including settlement negotiations in connection with the action, and will be responsible for the costs of such defense, negotiations and proceedings. The Indemnifying Party will have sole control of the defense and settlement of any claims for which it provides indemnification hereunder, provided that the Indemnifying Party will not enter into any settlement of such claim without the prior approval of the Indemnified Party, which approval will not be unreasonably withheld. The Indemnified Party shall have the right to retain separate counsel and participate in the defense of the action or claim at its own expense.
- LIMITATION OF LIABILITY
- Nothing in this Agreement limits or excludes liability of either party in respect of any claims for death or personal injury caused by negligence, fraud or any other liability which cannot be excluded or limited by law.
- To the maximum extent permitted by applicable law, Trave will not have any liability to Client for any loss of profits, loss of business, loss of revenue, loss of data, reputational damage, or for any indirect, special, incidental, punitive, or consequential damages however caused and under any theory of liability whether or not Trave has been advised of the possibility of such.
- Subject to clauses 10.1 and 10.2, to the maximum extent permitted by applicable law, Trave’s and its Affiliates total aggregate liability arising out of or related to this Agreement or the Services under any theory of law (including liability for negligence or breach of statutory duty or an indemnity claim) shall not exceed the total amount of the Fees paid by Client in the three months preceding the claim under which the liability has arisen.
- TERM AND TERMINATION
- This Agreement shall commence on the Effective Date and shall unless otherwise terminated as provided in this Clause 11 continue for the Initial Term. Thereafter, this Agreement shall automatically renew for the Renewal Terms unless either party notifies the other party of termination, in writing, at least ninety (90) days before the end of the Initial Term or any Renewal Term, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Term or otherwise terminated in accordance with the provisions of this Agreement. The Initial Term together with any subsequent Renewal Terms shall constitute the Term. If Trave wishes to modify pricing for the Services for such a Renewal Term it may do so in accordance with clause 4.
- Trave may terminate the Agreement on written notice in the event Client fails to discharge any undisputed Fees due and owing following written notice to discharge same.
- Either party shall be entitled, without prejudice to the rights and remedies otherwise available under this Agreement or by law to terminate the Agreement on written notice in the event of:
- a material breach of this Agreement by the other party which, if capable of remedy, is not remedied by the defaulting party within fifteen days of its receipt of written notice of the breach from the non-defaulting party;
- fraud or wilful default of the other party; or
- the other party becoming insolvent or unable to pay its debts when due (as defined by applicable law) or has a liquidator, receiver or manager appointed to it, or a winding-up order instituted against it.
- On termination of this Agreement for any reason:
- Client shall discharge all fees due up to the date of termination;
- all licences and rights of access granted under this Agreement shall immediately terminate;
- each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
- Upon receipt of a written request, Trave shall use reasonable commercial endeavours to deliver a back-up of Client Data to Client within 30 days of its receipt of such a written request, provided that Client has at that time paid all fees and charges outstanding at and resulting from termination. If Trave does not receive any such request within thirty (30) days of the date of termination, it may destroy or otherwise dispose of any of Client Data in its possession; and
- any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
- Trials and Betas shall run for the period indicated on an Order Form. Where Trials and Betas end and the parties wish to contract for the continued provision of the Services, a new Order Form shall be agreed.
- Each party (the “Receiving Party”) acknowledges that, in the course of this Agreement, it may obtain Confidential Information from the other Party, (the “Disclosing Party”). The Receiving Party shall keep in confidence and protect the Confidential Information of the Disclosing Party from unauthorised disclosure or dissemination and use no less than that degree of care it uses to protect its own like information, and in any event no less than reasonable care. The Receiving Party shall not use such Confidential Information except in furtherance of this Agreement.
- The Receiving Party shall not disclose any Confidential Information to any person without the Disclosing Party’s prior written consent except that the Receiving Party may disclose the Confidential Information to its officers, employees, independent contractors and agents (“Representatives”) on a “need-to-know” basis, provided that such Representatives are bound by a written agreement with materially the same terms and conditions as this clause 12 and the Receiving Party remains ultimately liable for any breach thereof. In addition, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any audit, financing transaction, regulatory or due diligence inquiry provided the recipients are subject to obligations of confidentiality at least as restrictive as those contained herein. Except as expressly provided in this Agreement, no ownership or license rights are granted in any Confidential Information.
- The obligations of confidentiality shall continue during the term of this Agreement and thereafter, unless and until such Confidential Information falls within one of the exceptions outlined in clause 12.4.
- This clause 12 shall not apply with respect to information the Receiving Party can document: (a) is in the public domain as a result of no act or omission of the Receiving Party or its employees or agents; (b) is received by the Receiving Party from third parties without restriction and without breach of a duty of nondisclosure by such third party; (c) was independently developed by the Receiving Party without reliance on the Confidential Information; or (d) is required to be disclosed by operation of law or by order of a court or administrative body of competent jurisdiction (provided that, where permitted under law, prior to such disclosure, the Receiving Party shall first give notice to the Disclosing Party such that the Disclosing Party has the opportunity to contest such order or requirement of disclosure or seek appropriate protective order).
- Any breach or threatened breach by the Receiving Party of an obligation under this Agreement may cause the Disclosing Party immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently, the Disclosing Party has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the Receiving Party or to compel specific performance of this clause.
- A Receiving Party must notify the Disclosing Party in writing, giving full details known to it immediately, when it becomes aware of any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information, or any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
- FORCE MAJEURE
- Neither party shall have any liability to the other party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic, epidemic, provided that the party notified of such an event and its expected duration. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three (3) months, the party not affected may terminate this Agreement by giving one calendar month written notice to the other party. Force Majeure shall not prevent or delay the payment of any sum due or to be due by either Party.
- Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law, or a single or partial exercise of such right or remedy, shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
- Invalidity. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
- Entire Agreement. This Agreement (which includes all Order Forms and the DPA), and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Additional Order Forms may be agreed between the parties referencing this Agreement, each of which shall form part of the Agreement.
- Assignment. Either party may assign on written notice all of its rights and obligations under this Agreement to (i) an Affiliate, (ii) a purchaser of all or substantially all assets related to this Agreement, or (iii) a third party participating in a merger, acquisition, sale of assets or other corporate reorganization in which a party is participating. Any attempt to assign this Agreement in violation of this provision shall be void and of no effect. This Agreement will bind and inure to the benefit of the parties and their respective permitted successors and assigns.
- Publicity. Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by applicable laws. However, Trave may include Client and its trademarks in Trave’s customer lists and promotional materials but will cease this use at Client’s written request.
- No agency. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between the parties, or authorize either party to act as agent for the other.
- Notice. Any notice to be given by either party for the purposes of the Agreement shall be sent by mail/email to the contact party whose details are set out in the Order Form. A notice delivered (i) by hand shall be deemed to have been received when delivered or if delivery is not in Business Hours, at 9am on the first Business Day following delivery, (ii) by post if correctly addressed by prepaid registered delivery shall be deemed delivered two days from the date of posting and five days for pre-paid registered airmail, and (iii) by email shall be deemed to have been received at 9.00am on the next Business Day after transmission.
- Survival. The following Clauses shall survive the termination or expiration of this Agreement: clause 3, 6, 7, 8, 9, 10, 11, 12, 13, and this clause 14.
- Amendment. No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.
- Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement.
- Dispute Resolution. The Parties shall do their best acting in good faith to settle amicably any dispute, controversy or claim arising out of or in connection with the existence, validity, construction, performance and termination of the Agreement (or any terms thereof). Escalation to the senior management of the Parties shall be the preferred dispute resolution methodology. If senior management cannot resolve the dispute within 30 days of first notification of the dispute the matter shall be referred to the courts of Ireland in accordance with clause 14.12.
- Governing Law and Jurisdiction. This Agreement and any disputes or claims arising out of or in connection with it are governed by and construed in accordance with the laws of the Republic of Ireland. The parties irrevocably agree that the courts of the Republic of Ireland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
DATA PROCESSING AGREEMENT
This Data Processing Agreement (“DPA”) sets out the additional terms, requirements and conditions on which Trave will process Personal Data when providing the Services and contains the mandatory clauses required by Article 28(3) of the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) for contracts between controllers and processors.
- In providing the Services under the Agreement, Trave may be required to process Personal Data on Client’s behalf. The parties record their intention that Client and its Affiliates (as applicable) shall be the Controller and Trave shall be a Processor.
- Client and its Affiliates shall, at all times, comply with their respective obligations as Controller and shall be responsible for Processing of all Personal Data processed under or in connection with the Agreement by their respective contractors or agents and Authorised Users in accordance with their obligations under applicable Data Protection Laws.
- Client shall ensure that Authorised Users and all relevant third parties have, been informed of, and have given their consent, as required by Data Protection Laws to the specific Processing as contemplated by this DPA.
- Annex 1 to this DPA sets out certain information regarding Trave and its subprocessors Processing of the Personal Data as required by article 28(3) of the GDPR.
- Client hereby instructs Trave (and consents and authorises Trave to instruct each subprocessor) to process Client Personal Data as reasonably necessary for the provision of the services and consistent with this DPA.
- The terms "Controller", "Processor", "Data Subject", "Personal Data", “Personal Data Breach” and "Process/Processing" have the same meaning as described in GDPR and shall be construed accordingly.
- DATA PROTECTION OBLIGATIONS
- To the extent that Trave Processes Client Personal Data pursuant to the Agreement, Trave warrants, represents and undertakes to Client that it shall:
- not process, disclose to or source from any third party, any Personal Data except to the extent, and in such a manner, as is reasonably necessary for the provision of the Services and then only where Trave is acting on and in accordance with the express written instructions of Client and/or its Affiliates, and at all times in accordance with all Data Protection Laws;
- implement and maintain appropriate technical and organisational measures to protect Client Personal Data including but not limited to against accidental unauthorised or unlawful loss, destruction, damage, alteration, access, disclosure or other Processing;
- not transfer or Process any Client Personal Data outside the European Economic Area, including any transfer via electronic media, without the express prior written consent of Client (and subject then in any event to the execution of an appropriate data transfer agreement);
- cooperate as reasonably requested by Client to enable Client to (i) comply with any exercise of rights by a Data Subject under the Data Protection Laws in respect of Personal Data processed by Trave under this DPA and shall implement and maintain appropriate technical and organisational measures to assist Client in responding to such requests from Data Subjects and shall notify Client promptly upon receipt of any such request from a Data Subject; and (ii) comply with any assessment, enquiry, notice or investigation under the Data Protection Laws which includes assisting Client where required in its obligations under Articles 35 and 36 of GDPR (including but not limited to the completion of a data protection impact assessment) to the extent this relates to the Services. Any such reasonable assistance shall be at the cost of Client;
- maintain proper up to date records of any Client Personal Data Processed by or on behalf of Trave pursuant to this DPA;
- ensure that all Trave Personnel engaged in the provision of the Services have entered into a confidentiality agreement with Trave and shall further ensure that such Trave Personnel are made aware of and observe Trave's obligations under this DPA with regard to the security and protection of Personal Data;
- at Client's option within thirty (30) days in writing to Trave, either (i) return to Client, or, (ii) delete from its systems, or destroy and make permanently unusable, all Client Personal Data and any copies, records, analysis, memoranda or other notes to the extent containing or effecting any Personal Data and Trave shall provide a certificate of confirmation from a senior authorised representative of Trave that this paragraph 2.1.7 has been complied with in full in accordance with Trave extract, return and deletion procedures and no longer than thirty (30) days from receipt of the request;
- appoint and identify to Client a named individual within Trave to act as a point of contact for any enquiries from Client relating to Personal Data and cooperate in good faith with Client concerning all such enquires within a reasonable time period;
- only sub-contract any element of the data Processing provided that (i) Client has given its express prior written consent to the use of such a sub-contractor or (ii) has given its prior general consent to sub-contracting of the data Processing by Trave from time to time. In the case of (ii), Trave will maintain a list of subcontractors used from time to time in relation to the data Processing and will make such list available to Client with any proposed additional or replacement sub-contractors prior to the introduction of any such addition or replacement. Client may acting reasonably object to the Trave or replacement of any particular sub-contractor proposed by Trave. If no written objections have been received within ten (10) days, the proposed subprocessor shall be deemed accepted. Trave shall ensure that (i) the terms governing the engagement between Trave and any subcontractors are not less protective with respect to Processing of Client Personal Data compared to the provisions of this DPA and any other relevant provisions of the Agreement to the extent those requirements are applicable to the nature of the services provided by the subprocessor; and (ii) Trave will remain responsible for the sub-contractor’s compliance with its obligations and for any acts or omissions of such subcontractor.
- PERSONAL DATA BREACH
Without prejudice to the other provisions of this DPA, Trave shall promptly upon becoming aware of any Personal Data Breach (and in any event within twenty four (24) hours of becoming aware of the Personal Data Breach) notify Client of the Personal Data Breach by telephone and by email, and where the Personal Data Breach directly affects Client Personal Data or the Services being offered to Client. Trave shall, at no additional cost to Client (save that Client shall reimburse Trave's reasonable costs where Trave has complied fully with its obligations under this DPA and such Personal Data Breach is not due to Trave default or neglect), provide Client with all resources and assistance as required by Client for Client to notify the Office of the Data Protection Commissioner and/or Information Commissioners Office (or analogous body in any other relevant jurisdiction and/or any bodies which may succeed or replace them from time to time and any other relevant Regulatory Authorities) of the Personal Data Breach and for Client to provide such reports or information as may be requested by it in relation to such Personal Data Breach and/or for Client to notify the relevant Data Subjects of such Personal Data Breach, as applicable.
- SUBPROCESSORS AND DATA TRANSFERS
- Client acknowledges and confirms it prior general consent to sub-contracting of the data Processing by Trave from time to time to its subprocessors, an up to date list of which is maintained by Trave and available on request, and which may be changed in accordance with Clause 2.1.9.
- Trave shall process Client Personal Data in the EU/European Economic Area (EEA) and Client Personal Data shall not be transferred outside of EU/EEA to a country that the European Commission has not determined has adequate protection for Personal Data, without Client’s prior written consent. Where Client Personal Data for EEA data subjects is transferred outside of the EU/EEA, the parties shall enter into appropriate data transfer agreements.
- CHANGES IN DATA PROTECTION LAWS
- Should changes to applicable Data Protection Laws, including the interpretation thereof, entail increased costs for Trave or its Subprocessors, Trave may, subject to providing written notice to Client, increase the rates charged to Client to reflect the increased costs. The increase to Client should be fair and reasonable and should be proportional to what other similar Trave clients are being asked to pay.
- Trave may propose variations to this Appendix which Trave reasonably considers to be necessary to address the requirements of any Data Protection Laws. The Parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified as soon as is reasonably practicable. Client shall not unreasonably withhold or delay agreement to any consequential variations to this Appendix proposed by Trave to protect Trave and the Subprocessors against additional risks associated with the variations proposed.
Upon 30 days written request by Client, not more than once per year, Client may conduct an audit of Trave systems, processes, and procedures relevant to the protection of Personal Data at locations where Personal Data is Processed. Trave will work cooperatively with Client to agree on an audit plan in advance of any audit. If the scope of the audit is addressed in an ISO 27001/27701 or similar audit report performed by a qualified third party auditor within the prior 12 months, and Trave data protection or other relevant officer certifies in writing there are no known material changes in the controls audited, Client shall agree to accept those reports in lieu of requesting an audit of the controls covered by the report. Trave will reasonably cooperate with and assist Client where a Regulator requires an audit of the data processing facilities from which Trave process Personal Data in order to ascertain or monitor Client’s compliance with Data Protection Laws.
Trave shall indemnify Client from and against any and all third party claims, suits, demands and actions and for resulting damages, awards of damages, losses, costs, and expenses (including but not limited to any regulatory fines and reasonable legal and professional fees) incurred by Client that result or arise from any breach by Trave of the terms and conditions of this DPA and/or Data Protection Laws. Trave shall be liable on a comparative basis for the portion of those damages directly attributable to its breach of its obligations and the indemnity shall be subject to the limitations of liability in the Agreement.
ANNEX 1: DETAILS OF PROCESSING OF CLIENT AND AUTHORISED USER PERSONAL DATA
This Annex 1 includes certain details of the Processing of Client and Authorised User Personal Data as required by Article 28(3) GDPR.
- Subject matter and duration of the Processing of Client and Authorised User Personal Data
The subject matter is Client Personal Data and Authorised User Personal Data and the duration of the Processing of Client Personal Data and Authorised User Personal Data is set out in the Agreement
- The nature and purpose of the Processing of Client and Authorised User Personal Data
Trave will Process Personal Data as necessary to perform the Services pursuant to the Agreement and as further instructed by the Client and/or Authorised User in its use of the Services.
- The types of Personal Data to be Processed
Client and Authorised User Personal Data relating to the following type of data categories:
- General Information: First name, last name, and contact information (email, phone, work location).
- User Credentials: Login details, passwords, security questions, and other authentication-related data.
- User Activity: Data about user interactions with the platform, such as timestamps, actions taken, and features accessed.
- User Preferences: Customizable settings or preferences within the platform.
- Communication Data: Messages, feedback, or other communications transmitted via the platform.
- Technical Data: IP addresses, device identifiers, browser types, and other relevant technical information.
- Financial Data: Invoices, purchase orders, payment records, and other related financial information.
- Employee Records: Training documents, certifications, qualifications, and other relevant employment-related records.
- Profile Data: Profile pictures (selfies) and any other user-submitted media or documents for profile personalization.
The types of Personal Data may change from time to time, according to any additional or amended Services to be provided by Trave.
- The categories of Data Subject to whom Client and Authorised User Personal Data relates
Client Personal Data relating to the following type of Data Subjects:
- Client employees; and
- Authorised Users (as defined in the Agreement)
- The obligations and rights of Client
These are as set out in the Agreement and this DPA.
Trave may provide notice of change to these provisions where an update is required due to changes to services or changes required due to applicable Data Protection Laws, including the interpretation thereof.