The following is a sample contract between Classics Welcome Ltd. (trading as Petrolheads Welcome) and a service provider (e.g. Hotel). It is provided for information only. The flexible terms referenced below will be made individual to each business as appropriate.
This agreement is dated [DATE]
- [FULL COMPANY NAME] incorporated and registered in England and Wales with company number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] (Service Provider)
- Classics Welcome Limited incorporated and registered in England and Wales with company number 11309748 whose registered office is at Greystones, Chew Magna, Bristol, BS40 8RQ (Classics Welcome)
- (A) – Classics Welcome operates one or more websites providing details of accommodation and other services which may be of interest to owners of classic and other specialist cars (“Website”).
- (B) – The Service Provider wishes to be listed on the Website, and is willing to pay Classics Welcome a fee/commission for such listing on the terms of this agreement.
1 – Interpretation
The following definitions and rules of interpretation apply in this agreement.
- 1.1 Definitions:
- Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
- Commencement Date: the date set out in Schedule 1.
- Guest: a person obtaining Services from the Service Provider as a consequence of that person’s use of the Website.
- Listing Category: the category allocated by Classics Welcome to the Service Provider Listing in accordance with Schedule 3;
- Listing Package: the listings package selected by the Service Provider set out in Schedule 2.
- Services Fee: the aggregate advertised fee payable by a Guest to the Service Provider for the Services, less any VAT or sales tax.
- Service Provider Information: the information related to the Service Provider, its facilities and other matters which may be uploaded to the Website in accordance with the Listing Package.
- Services: the accommodation and other services as further described in Schedule 4 provided by the Service Provider together with any other services from time to time offered by the Service Provider and which the Service Provider, by express written notice to Classics Welcome, includes within the scope of this agreement.
- Term: the term of this agreement set out in Schedule 1.
- 1.2 – A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
- 1.3 – The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
- 1.4 – A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and a reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
- 1.5 – A reference to writing or written includes e-mail.
- 1.6 – “Including”. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
Service Provider Listing and Website
- 2.1 – The Service Provider shall be permitted by Classics Welcome to upload to, and display on, the Website, the Service Provider Listing for the Term, on and subject to the terms of this agreement.
- 2.2 – The Service Provider shall:
- (a) – ensure that the Service Provider Listing is true, accurate and not in any way misleading at all times;
- (b) – keep the Service Provider Listing up to date and accurate at all times; and
- (c) – be responsible for ensuring that the Service Provider Listing complies with Classics Welcome’s Acceptable Use Policy from time to time and its directions.
- 2.3 – It is agreed that Classics Welcome shall be entitled to allocate (in its discretion) the Service Provider Listing a Listing Category based on the criteria set out in Schedule 3.
- 2.4 – Classics Welcome reserves the right to alter the Listing Category or suspend or remove the Service Provider Listing at any time in its discretion on the basis of Guest or Website user feedback, inaccuracies in the Service Provider Listing or any other matter which it considers relevant, provided that (except as set out in clause 2.5) Classics Welcome shall consult with the Service Provider and allow it reasonable opportunity to object before taking any such action.
- 2.5 – Classics Welcome shall be entitled to suspend or remove the Service Provider Listing at any time without notice and without being obliged to first consult with the Service Provider where it considers (in its absolute discretion) that:
- (a) the Service Provider Listing is materially inaccurate or fails to comply with this agreement or Classics Welcome’s Acceptable Use Policy in any material respect;
- (b) Guest or Website user merits suspension or removal;
- (c) the Service Provider has failed to pay any fee or commission when due; or
- (d) Classics Welcome suspects that commission is payable but the Service Provider has not notified Classics Welcome of such commission.
In such circumstances, Classics Welcome shall consult with the Service Provider in relation to lifting the suspension or re-listing the Service Provider Listing provided that such decision shall remain at the absolute discretion of Classics Welcome.
Fees and Commissions
- 3.1 – The Service Provider shall pay to Classics Welcome the fees and/or commissions set out in the Listing Package.
- 3.2 – For the avoidance of doubt, the Service Provider shall not be required to pay any commission to Classics Welcome if a booking is made by means of Booking.com or any other 3rd party booking provider from whom Classics Welcome receives commission.
- 3.3 – If there is agreement booking where commission is payable, the amount of commission payable shall be at the percentage rate of the Services Fee set out in the Listing Package.
- 3.4 – Within 7 days of the end of each [third] calendar month, the Service Provider shall promptly notify the Classics Welcome in writing of the payment received for Services in the preceding calendar month and, if so:
- (a) – the commission payable to the Classics Welcome;
- (b) – the payments for Services received and details of any sums due which have not been received; and
- (c) – how the commission has been calculated.
- 3.5 – The Service Provider shall pay all commission payable pursuant to clause 4 to Classics Welcome (whether invoiced or not) within 14 days of the end of the month in which the Service Provider received the corresponding payment for Services. If the Service Provider receives payment for Services in instalments, then commission shall be calculated and paid on such instalments as they are received by the Service Provider.
- 3.6 – Classics Welcome shall invoice the Service Provider for the commission payable in accordance with the Service Provider’s statement submitted pursuant to clause 4, together with any applicable VAT.
- 3.7 – Commission shall be payable to Classics Welcome in the currency in which it is received by the Service Provider.
- 3.8 – All sums payable under this agreement are exclusive of value added tax or other applicable sales tax, which shall be added to the sum in question (if applicable), and shall be paid in full without any deductions or set off.
- 3.9 – If the Service Provider fails to make any payment due to Classics Welcome under this agreement by the due date for payment, then, without limiting Classics Welcome’s remedies under clause 11, the Service Provider shall pay interest on the overdue amount at the rate of 4% per annum above Lloyds Banking Group Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Service Provider shall pay the interest together with the overdue amount.
- 3.10 – If any dispute arises as to the obligation to pay commission or the amount of commission payable by the Service Provider to Classics Welcome, the decision of Classics Welcome shall, in the absence of manifest error, be binding.
4. Rights and Obligations of Classics Welcome
- 4.1 – Classics Welcome shall be entitled at its discretion:
- (a) to make changes to a Service Provider Listing;
- (b) to place the Service Provider Listing in any location on its Website provided that it shall use reasonable endeavours to ensure that all service providers are treated fairly;
- (c) to make changes to the Listing Packages and Listing Categories from time to time;
- (d) to list or link to any (or no) 3rd party booking engine on its Website.
- 4.2 – Classics Welcome shall have no authority, and shall not hold itself out as being authorised to bind the Service Provider in any way, and shall not do any act which might reasonably create the impression that the Classics Welcome is so authorised.
- 4.3 – Classics Welcome shall not make or enter into any contracts or commitments or incur any liability for or on behalf of the Service Provider, including for the provision of the Services or the price for them, and shall not negotiate any terms for the provision of the Services with prospective Guests.
5 – Rights and obligations of the Service Provider
- 5.1 – The Service Provider must at all material times act in good faith towards Classics Welcome.
- 5.2 – The Service Provider shall provide Classics Welcome at all material times with all information Classics Welcome reasonably requires to operate the Website to the extent it relates to the Service Provider Listing and to carry out its obligations under this agreement.
- 5.3 – The Service Provider shall be under no obligation to:
- (a) follow up any enquiry made by a Guest; or
- (b) accept any booking or request for Services.
- 6.1 – Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 2.
- 6.2 – Each party may disclose the other party’s confidential information:
- (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 6; and
- (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- 6.3 – No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this agreement.
- 7.1 – Each party shall at its own expense comply with all laws and regulations relating to its activities under this agreement, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.
8.1 – Definitions.
- (a) Agreed Purposes: (i) for the verification of Commission payments and (ii) for administration purposes.
- (b) Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation in force at the time.
- (c) Data Protection Legislation: (i) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK, and (ii) any successor legislation to the Data Protection Act 1998 and the GDPR, in particular the Data Protection Bill 2017-2019, once it becomes law.
- (d) Permitted Recipients: The parties to this agreement, the employees of each party, any third parties engaged to perform obligations in connection with this agreement.
- (e) Shared Personal Data: the personal data to be shared between the parties under this agreement. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject:
- Personal data of Guests who obtain Services from the Service Provider; and
- Personal data of directors and employees of each party.
8.2 – The provisions which follow set out the framework for the sharing of personal data between the parties as data controllers. Each party acknowledges that one party (the Data Discloser) will disclose to the other party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes. Each party shall:
- (a) ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purposes;
- (b) give full information to any data subject whose personal data may be processed under this agreement of the nature such processing;
- (c) process the Shared Personal Data only for the Agreed Purposes;
- (d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
- (e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by this agreement;
- (f) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
- (g) not transfer any personal data obtained from the Data Discloser outside of the European Economic Area unless the prior written consent of the data subject has been obtained and appropriate protections are put in place.
8.3 – Each party shall comply with the Data Protection Legislation and agrees that any material breach of the Data Protection Legislation shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.
8.4 – Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation.
- 9.1 – Classics Welcome makes no warranty whatsoever as to the Website, including as to its quality, fitness for purpose, or otherwise.
- 9.2 – For the avoidance of doubt, no availability, error, uptime or any other service levels or warranties shall apply to the Website nor does Classics Welcome warrant that use of the Website will be uninterrupted, continuous or error-free.
- 9.3 – The warranties set out in this agreement shall be in lieu of any and all warranties and conditions which may be implied by law, which are hereby excluded to the maximum extent permitted by law.
- 9.4 – Nothing in this agreement shall limit or exclude the liability of either party for:
- (a) Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable).
- (b) Fraud or fraudulent misrepresentation.
- (c) Any matter in respect of which it would be unlawful to exclude or restrict liability.
- 9.5 – Subject to clause 4 above:
- (a) Neither party shall under any circumstances whatever be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, contract, booking, revenue, goodwill, or anticipated savings, or for any indirect or consequential loss or damage.
- (b) The annual aggregate liability of either party to the other in respect of all other loss or damage arising under or in connection with this agreement whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the sums paid by the Service Provider to Classics Welcome in the 12 months period immediately preceding the event giving rise to the liability.
This agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 11, for the Term.
- 11.1 – Either party shall be entitled to terminate this agreement at any time by giving to the other not less than 3 months’ notice in writing. If Classics Welcome terminates the agreement under this provision (but not otherwise), it shall repay to the Service Provider a proportion of any annual fee (but not commission) paid by it proportionate to the time remaining in the Term.
- 11.2 – Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
- (a) the other party fails to pay any amount due under this agreement on the due date for payment;
- (b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified to do so;
- (c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
- (d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 OR (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 OR (being a partnership) has any partner to whom any of the foregoing apply;
- (e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
- (f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);
- (g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
- (h) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
- (i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- (j) the other party (being an individual) is the subject of a bankruptcy petition or order;
- (k) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
- (l) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1(d) to clause 11.1(k) (inclusive).
- 12.1 – On termination of this agreement, the following clauses shall continue in force: clause 1, clause 6 and clause 12 to clause 21 (inclusive).
- 12.2 – Termination of this agreement shall not affect 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.
13. No partnership or agency
- 13.1 – Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
- 13.2 – Each party confirms it is acting on its own behalf and not for the benefit of any other person.
- 14.1 – This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- 14.2 – Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
- 14.3 – Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
- 14.4 – Nothing in this clause shall limit or exclude any liability for fraud.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
- 17.1 – No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
- 17.2 – No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- 18.1 – If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
- 18.2 – If one party gives notice to the other of the possibility that any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- 19.1 – Any notice or other communication given to a party under or in connection with this agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, or by commercial courier, or email.
- 19.2 – A notice or other communication shall be deemed to have been received:
- (a) if delivered personally, when left at the address referred to in clause 1;
- (b) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
- (c) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
- (d) if sent by email, one Business Day after transmission.
- 19.3 – This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
No one other than a party to this agreement shall have any right to enforce any of its terms.
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated at the beginning of it.
|Signed by [signatory] for and on behalf of [NAME OF SERVICE PROVIDER]||………………..
|Signed by [NAME OF DIRECTOR] for and on behalf of Classics Welcome Limited||………………..
Schedule 1 – Agreement details
Commencement Date: [ ]
Term: [ ]
Schedule 2 – Listing Package
Fee: £[ ] per annum, payable on or before the Commencement Date.
Commission: [7.5]% of Service Fee.
Materials/information which may feature in the Service Provider Listing:
- Address, phone number, email address, website
- Details of accommodation/services provided
- Details of why “petrolheads friendly”
- Link to website
- Link to Bookings.com/other 3rd party booking provider, if selected Photo gallery (no specific limit to the number or size of photographs that can be uploaded)
- Video (which must be ‘You Tube hosting standard’)
- Ability to respond to comments from customers (non-enhanced listings cannot do this in their own name).
Materials/information which may feature in the Service Provider Listing:
- Up to 2 photos
- Link to Bookings.com/other 3rd party booking provider
- Such other materials/information as Classics Welcome shall permit, in its absolute discretion
Schedule 3 – Listing Category
As set out on our Website:
- Gold – These venues have been visited by members of the Petrolheads Welcome team. The people there have welcomed us in an extra-special way because of our cars. They understand the needs of the classic, prestige and supercar car owner. We can heartily recommend such places based on our personal experience.
- Silver – These venues may have been visited by the Petrolheads Welcome team or have been recommended to us by people from the Petrolhead world who we know and trust. They will be suitable venues for cherished car owners, but may not be run by people who understand the needs of the classic, prestige or supercar car owner.
- Bronze – These venues have not been visited by members of the Petrolheads Welcome team, although we have undertaken some basic research before publishing their listing. In some cases, the business owners will have uploaded their information in the belief that they would be suitable for the needs of classic, prestige and supercar owners.
Schedule 4 – Services
Services to be covered by this agreement:
- Provision of parking
- In-house activities