Terms of Service & Data Processing Agreement

Bokun provides its service to you subject to the following terms

1. Scope of the Service

1.1

Bókun ehf., registration no. 410212-0649, Nóatúni 17, 105 Reykjavík (“Bókun ehf.”), directly or through its subsidiary Bókun International ehf., registration no. 450315-0600, Noatun 17, 105 Reykjavik, Iceland (”Bókun International ehf.“), provides services under these Terms of Services. Whether it is Bókun ehf. or Bókun International ehf. that provides the services and is party to these Terms of Service depends on which of the companies issues invoices for the services. The company that is party to these Terms of Service is hereinafter referred to as “Bokun”

1.2

Bokun provides suppliers and resellers of services in the tourism industry, including but not limited to tours & activities, attractions, accommodation, car rentals, transport and any type of event (“User” or “Users”), with access to a day-to-day management and sales system including but not limited to booking engines of Bokun (“Software”). The booking engines can be added by the Users to websites to manage their services and have them bookable, one or more at a time, with optional add-ons, and to simultaneously sell services from other local or global services providers through the various channels of the Software including but not limited to the Bokun Marketplace with options of commission contracts and packaging of products together as well as through agent and affiliate portals and other channels. The Software assists Users in tracking the commissions, managing multiple rates, offers and currencies, calculating taxes, generating invoices, providing overview of account payables and receivables, receiving payments through payment providers and calculating refunds. The Users can provide their agents with access to the Bokun Marketplace so they can book products directly, with rates and payment methods that can be adjusted for individual agents. The Software assists Users to sell their products through global Online Travel Agencies integrated with Bokun. Distributors that are not yet integrated with Bokun can receive a booking engine widgets which they can embed on websites to start accepting bookings connected with the inventory of Users. These services provided by Bokun now known or hereafter developed are collectively referred to herein as the “Service”. The Service may include certain communications from Bokun, such as service announcements and administrative messages and the User will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to the provisions of these Terms of Service. (Together Bokun and User will be referred to in these Terms of Service as the “Parties”).

1.3

By using all or any portion of the Service or by creating an account with Bokun, the Users represent that they accept these Terms of Service. Users further agree that these Terms of Service are enforceable like any written negotiated agreement signed by the User and the User further agrees to be legally bound and to abide by these Terms of Service. By using all or any portion of the Service, Users agree to use the Service in a manner consistent with all applicable laws and regulations and in accordance with these Terms of Service. If Users do not agree to all the Terms of Service, they shall not use the Service.

1.4

The Service is provided “as-is” and Bokun assumes no responsibility for the timeliness, deletion, miss-delivery or failure to store any user communications, personalisation settings or content, information or other data. Users are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). Users are alone responsible for all such fees. In addition, Users must provide and are responsible for all equipment necessary to access the Service.

1.5

Bokun reserves the right to at any time and from time to time to amend or discontinue, temporarily or permanently, the Service, either partly or fully, with or without notice. Users agree that Bokun shall not be liable to the User or any third party for any such amendments, suspension or discontinuance of the Service.

1.6

Bokun may at any time and from time to time establish general practices and limits concerning use of the Service, including without limitation the maximum disk space, bandwidth, amount of API calls and server processing that will be allotted on Bokun’s servers on the User’s behalf, and the maximum number of times (and the maximum duration for which) Users and their customers may access the Service in a given period. Bokun takes no responsibility or liability for the deletion or failure to retain any messages and other communication or content, information or other data maintained or transmitted by the Service. These general practices may be amended and modified by Bokun from time to time with or without notice to the User.

2. User's Account

2.1

To be able to use the Service, Users will have to create a User's account.

2.2

Users are responsible for maintaining the confidentiality of their password and other account information. Users are fully responsible and liable for all activities on their account.

2.3

Users shall immediately notify Bokun of any unauthorised use of their account, password or any other breach of security.

2.4

Users shall ensure that they exit and log off their account at the end of each usage session. Bokun will not be liable for any loss or damage arising from User’s failure to comply with this Clause 2.

3. Service Fees and Payments

3.1

For the Service Users pay a monthly service fee (the “Service Fee”) in the amount stated in Bokun’s pricelist, which can be found on www.Bokun.io/pricing, i.e. 0,1% of all booking value connected with the Service, including all fees billed by the User to its customers, converted into USD if paid in another currency, up to a maximum amount of USD 2,500, plus tax if applicable. Service Fees are paid monthly.

3.2

Invoices for the Service Fee are sent to Users in the beginning of each month for booking value, based on booking date (not travel date), in the preceding month.

3.3

In case the booking value of a month that has been invoiced for decreases because of cancelations under cancelation policies of the User towards their customers, the User shall earn an amount in credit at Bokun corresponding to the Service Fee that was invoiced for the decrease. This credit shall be used to lower the next invoice of Bokun but not be refundable.

3.4

The invoices submitted by Bokun shall be paid in full by credit cards of the Users. The Users shall submit relevant information on the credit cards timely before invoicing of Bokun.

3.5

Bokun reserves the right to increase the Service Fee from time to time with effect to the following month. If the Service Fee is amended, Users will be notified with a 30 day notice.

3.6

If a User fails to make a payment to Bokun, pursuant to this Clause 3, Bokun is entitled to charge default interests in accordance with Icelandic Act no. 38/2001 on Interest and Indexation on the defaulted payment from its due date and until payment has been made in full.

4. Intellectual Property Rights

4.1

Bokun’s intellectual property rights in or arising out of the Service shall at all times be the property by Bokun. Nothing in these Terms of Service shall be regarded as the assignment of any such intellectual property rights to the User.

4.2

Intellectual property rights in connection with the Service that may be owned by third parties shall at all times remain with such third-party owners.

5. User Content and Reverse Engineering

5.1

Bokun does not claim ownership of User’s content submitted or made available for the use of the Service.

5.2

By using the Service, Users grant Bokun a license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display photos, graphics, documents, videos and all other content submitted or made available on publicly accessible areas of the Service, solely for the purpose for which such content was submitted or made available on a worldwide, royalty-free and non-exclusive license. The license exists only for as long as the User elects to continue to include such content on the Service and will terminate at the time the User removes such content from the Service and notifies Bokun thereof in writing.

5.3

By using the Service the User agrees that Bokun may use the name and logo of the User in presentations, marketing material, client lists, financial reports and on a website listing Bokun’s clients.

5.4

Users agree not to upload, transmit or otherwise make available in connection with the Service any content that is unlawful, subject to third party property rights, harmful, threating, abusive, harassing, torturous, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful, racist or otherwise objectionable.

5.5

If Bokun becomes aware of any content violating Clause 5.4 of these Terms of Service, Bokun reserves the right to remove any such content from publicly accessible areas of the Service.

5.6

The User may not reverse engineer, decompile or disassemble any Bokun software related to the Service, except and only to the extent such activity is expressly permitted by applicable law notwithstanding this limitation.

6. Third Party Content, Software Products and Service

6.1

The Service may provide, or third parties may provide, links to other websites or resources. Bokun takes no responsibility for such links or resources and does not endorse and is not responsible or liable for any such content, advertising, products or other material on or available from such websites or resources.

6.2

Bokun shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or service available on or through any such websites or resources that are referred to in Clause 6.1 of these Terms of Service.

6.3

Bokun may suggest or supply software products and or service from third parties. Bokun takes no responsibility or liability for the performance of any such software and/or services.

7. Data Protection and Data Processing

7.1

In relation with the Service the Parties shall comply with all applicable requirements of relevant data processing laws and regulation (the “Data Protection Legislation”). The Parties acknowledge that for the purposes of the Data Protection Legislation, the User is the data controller and Bokun is the data processor.

7.2

The Parties will enter into a data processing agreement in relation with Bokun’s processing of personal data on behalf of the User. The data processing agreement is an annex to these Terms of Service, see Annex 1.

8. Record Retention

8.1

Bokun will compile and retain records of transactions and data related to the Service provided to the User. Bokun reserves the right to delete such records.

9. Limitation of Liability

9.1

All usage of the Service is at the User’s own risk.

9.2

Neither Bokun nor its affiliates, nor any of their respective officers, directors, members, shareholders, employees, agents, third party content providers, or licensors warrant that the Service or Bokun’s Software will be uninterrupted, timely, secure or error-free, nor do they make any warranty as to the results that may be obtained from the use of the Service or Bokun’s Software including their accuracy, reliability, quality, adequacy, timeliness or authenticity. Nor do they make any warranty as to the accuracy, reliability, quality, adequacy timeliness or authenticity of any ads, information, services, products, merchandise or other material purchased, provided by or through the Service. The Service and Bokun’s Software are provided on an “as is” and “as available” basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, non-infringement or fitness for a particular purpose.

9.3

In no event will Bokun, or any person or entity involved in creating, producing or distributing the Service, be liable to the User or any other person or entity for any indirect, incidental, special, punitive or consequential damages, or loss of profit or revenue arising out of the use of or inability to use the Service. This disclaimer of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortious behaviour, negligence, or under any other cause of action regardless of whether Bokun had notice of the cause or such cause was foreseeable. These disclaimers and limitations shall apply even in the event of a fundamental or material breach or a breach of the fundamental or material terms of these Terms of Service.

9.4

The User agrees to indemnify and hold harmless Bokun, its affiliates, respective officers, directors and employees, from and against any and all claims of third parties relating to, arising out of or resulting from their use of the Service, other than claims arising from gross negligence or wilful misconduct of Bokun, its affiliates, respective officers, directors and/or employees.

9.5

By using the Service and thereby agreeing to these Terms of Service, the User acknowledges that it has not relied on any prior representation, warranty or other assurance made by or on behalf of Bokun and waives all rights and remedies which might otherwise be available to the User in respect of such representation, warranty or other assurance, provided that nothing in this clause shall exclude or limit any liability for fraud.

10. Termination of Service and Closing of User Accounts

10.1

Without affecting any other right or remedy available to it, either Party may terminate the Service by giving the other Party one month’s written notice either by email or ordinary mail.

10.2

Bokun may terminate the Service with immediate effect by giving written notice to the User if:

10.2.1

the User commits material breach of any of the provisions of these Terms of Service; or

10.2.2

the User becomes insolvent, ceases to trade or has a liquidator, receiver, manager, administrator or administrative receiver or similar officer appointed in respect of the whole or part of its business or enters into any arrangement or composition with its creditors, or is made bankrupt, or undergoes a similar or analogous event in any jurisdiction;

10.2.3

the User fails to pay any amount due and payable pursuant to Clause 3, and after Bokun has sent the User a notification of failure of payment;

10.2.4

due to inactivity, no payment has been received from the User for a period of ninety (90) days or more; or

10.2.5

if the User objects to the use of any sub-processor according to the Parties’ data processing agreement.

10.3

Upon termination Bokun will at its sole discretion, be authorised to close the User’s Account and delete any existing data from the account and further all submitting of incoming data may be refused and terminated.

10.4

Upon termination all unpaid Service Fees shall become due and payable.

11. Amendments of these Terms of Service

11.1

Bokun reserves the right to at any time and from time to time to amend, temporarily or permanently, these Terms of Service. Should these Terms of Service be amended, Users will be requested to review the amended Terms of Service and accept them with immediate effect.

11.2

If a User fails to accept amended Terms of Service pursuant to Clause 11.1, within 30 days of a request to accept them, Bokun shall be entitled to terminate the Service pursuant to Clause 10.

12. Force Majeure

12.1

Neither Party shall be in breach of these Terms of Service nor liable for delay in performing, or failure to perform, any of its obligations under these Terms of Service if such delay or failure result from events, circumstances or causes beyond its reasonable control (a force majeure).

13. Notifications

13.1

All notifications according to this Agreement shall be done in writing via email. Bokun’s email address is info@bokun.is.

14. Assignment and other Dealings

14.1

Bokun may at any time assign, subcontract, delegate or deal in any other manner with any or all its rights and obligations related to the Service and these Terms of Service.

14.2

The User shall not assign, transfer, delegate or deal in any other manner with any of its rights and obligations related to the Service and these Terms of Service without the prior written consent of Bokun.

15. Governing Law and Jurisdiction

15.1

The Service and these Terms of Service, and any dispute or claims arising out of or relating to the Service or these Terms of Service shall be governed by, and construed in accordance with the laws of Iceland.

15.2

Each party irrevocably agrees that the District Court of Reykjavík, Iceland, shall have exclusive jurisdiction to settle any dispute or claim arising out of or relating to the Service or these Terms of Service.

These Terms of Service were made available on Bokun’s website on 24 May 2018.

Bókun ehf. reg. no. 410212-0640, Nóatúni 17, 105 Reykjavík, Iceland, or Bókun International ehf., registration no. 450315-0600, Noatun 17, 105 Reykjavik, Iceland, as the case may be according to the Terms of Service, hereinafter referred to as “Processor” or “Bokun”, and the User as defined in the Terms of Service, hereinafter referred to as “Controller”, collectively referred to as the “Parties”, have agreed to enter into the following

DATA PROCESSING AGREEMENT

BACKGROUND AND PURPOSE OF PROCESSING

This Data Processing Agreement (“Agreement”) is an annex to the Terms of Service governing the Controller’s use of Bokun‘s services (“Terms of Service“).

Bokun provides suppliers and resellers of services in the tourism industry, including but not limited to tours & activities, attractions, accommodation, car rentals, transport and any type of event, with access to booking engines of Bokun (“Software”). The Software can be added by the Controllers to websites to manage their services and have them bookable, one or more at a time, with optional add-ons, and to simultaneously sell services from other local or global services providers through the Bokun Marketplace with options of commission contracts and packaging of products together. The Software and Bokun Marketplace assist Controllers in tracking the commissions, managing multiple rates, offers and currencies, calculating taxes, generating invoices, providing overview of account payables and receivables, receiving payments through payment providers and managing refunds. The Controllers can provide their agents with access to the Bokun Marketplace so they can book products directly, with rates and payment methods that can be adjusted for individual agents. The Software and Bokun Marketplace assist Controllers to sell their products through global Online Travel Agencies integrated with Bokun. Distributors that are not yet integrated with Bokun can receive a booking engine widget which they can embed on their website to start accepting bookings connected with the inventory of Controllers. These services provided by Bokun now known or hereafter developed are collectively referred to herein as the “Service”. The Service may include certain communications from Bokun, such as service announcements and administrative messages and the Controller will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be considered part of the Service under this Agreement.

In relation to the Service, the Processor may process information and data, which can be considered Personal Data in the meaning of data protection legislation, i.e. Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 effective from 25 May 2018 (“Data Protection Legislation”), on behalf of the Controller.

Where the Processor processes such Personal Data on behalf of the Controller, the Processor is considered a data processor according to Data Protection Legislation, and the Controller a data controller.

The purpose of this Agreement is to regulate the Parties’ rights and obligations in relation to the Processor’s processing of Personal Data on behalf of the Controller, particularly to ensure the secure processing of the Personal Data and to fulfil the requirement of the Data Protection Legislation.

1. PROCESSING OF PERSONAL DATA AND CATEGORIES OF PERSONAL DATA AND DATA SUBJECTS

1.1

The Processor will process Personal Data related to the Controller’s business activities on behalf of the Controller (the “Data Subjects”).

1.2

The Processor will process the personal data uploaded by the Controller on the Processor’s Software (the “Personal Data”). They may include e.g.:

2. THE PROCESSOR’S OBLIGATIONS

2.1

The Processor is only permitted to process Personal Data on behalf of the Controller in accordance with this Agreement or in accordance with the Controller’s documented instructions, unless the Processor is authorized to do so by law.

2.2

The Processor shall ensure that its employees, and others who have access to the Personal Data, only process the Personal Data according to the instructions given by the Controller.

3. THE CONTROLLER'S OBLIGATIONS

3.1

The Controller warrants that it has the right to process the Personal Data in question, and that it has the right to appoint the Processor to process the Personal Data on the Controller’s behalf.

3.2

The Controller shall be responsible for notifying the processing activities to the applicable data protection authority and/or acquiring a permit for the processing, where applicable.

4. CONFIDENTIALITY AND TRAINING OF EMPLOYEES

4.1

The Processor shall ensure that all employees, and others who may have access to the Personal Data, have committed themselves to confidentiality about everything they learn of while processing Personal Data on behalf of the Controller.

5. SECURITY MEASURES

5.1

The Processor shall ensure that appropriate technical and organizational measures are implemented to ensure a level of security of the Personal Data processed on behalf of the Controller. The measures shall ensure a level of security appropriate to the risk, taking into account the state of the art, the cost of implementation and the nature, scope, context and purpose of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.

5.2

The Processor is responsible for ensuring that the technical and organizational measures adopted at each time are appropriate and sufficient.

5.3

For the purposes of preventing and limiting damage caused by human error, theft, fraud and other abuse, the Processor will implement and maintain:

5.4

The Processor will limit the access to the Personal Data to only those who need it for the purpose of its duties according to this Agreement.

5.5

The Processor will ensure that all employees, who have access to the Personal Data from the Controller, have received appropriate training on the laws relating to the handling of Personal Data and are aware both of the Processors‘ duties, as well as their personal duties and obligations under Data Protection Legislation and this Agreement.

5.6

The Processor shall notify the Controller without undue delay after becoming aware of a Personal Data breach and shall take reasonable steps to mitigate the effects and to minimize any damage resulting from such breach. To assist the Controller in relation to any Personal Data breach notification the Controller is required to make under the relevant Data Protection Legislation, such a notification shall include information the Processor reasonably is able to disclose to the Controller, taking into account the nature of the service, the information available to the Processor and any restriction on disclosing the information, such as confidentiality.

5.7

The Processor shall inform the Controller of where the Personal Data is stored upon request. The Processor may transfer Personal Data outside the European Economic Area, however only if such transfer is to an entity in a country that provides an adequate level of personal data protection within the meaning of Data Protection Legislation or the entity: (a) is part of the EU-U.S. Privacy Shield Framework; or (b) uses Standard Contractual Clauses adopted by the European Commission. If the mechanism used by the parties for the transfer of Personal Data to third countries should become invalid, the Parties will promptly put in place an alternative mechanism for the transfer of Personal Data to third countries. Bokun primarily hosts the Personal Data at Amazon Web Services.

6. INTERNAL AUDIT

6.1

The Processor shall conduct an internal audit of the processing of Personal Data to make sure the Personal Data is processed in accordance with applicable law and that appropriate security measures have been implemented.

6.2

The internal audit shall be conducted regularly. The frequency and scope of the audit shall be decided depending on the risk involved by the processing, the nature of the data being processed, the technique being used to ensure the security of the data and the cost of the audit. The audit shall be performed at the least once a year.

6.3

The Processor shall prepare a report on the performance of the internal audit. The report shall describe the outcome of each element of the audit. The reports shall be securely stored.

7. SUBPROCESSORS

7.1

The Controller accepts the Processor’s use of sub-processors to perform specific processing activities according to this Agreement. A list of the Processors sub-processors shall be available upon reasonable request. The Controller can always object to the use of sub-processors within 30 days from receipt of such list.

7.2

The Processor shall impose materially the same data protection obligations as set out in this Agreement and the Data Protection Legislation on any sub-processor.

7.3

The Processor shall always remain fully liable to the Controller for the performance of the sub-processor’s obligations.

8. DATA SUBJECT’S REQUESTS AND THIRD PARTY RIGHTS

8.1

The Processor shall assist the Controller by appropriate technical and organizational measures, to the extent reasonable possible, to respond to requests for exercising the Data Subject’s rights in accordance with the Data Protection Legislation, e.g. access to Personal Data, rectification or erasure of data and portability of data. The same applies to any requests and enquiries by relevant supervisory authorities.

8.2

The Processor shall refer any Data Subjects’ requests which relate to the Controller’s data to the Controller.

9. DURATION OF AGREEMENT

9.1

The Agreement shall be valid as long as the Terms of Service are in force.

10. ERASURE OR RETURN OF PERSONAL DATA

10.1

The Processor shall, in consult with the Controller, erase the Personal Data where the data is no longer necessary in relation to the purposes for which they were collected, unless otherwise required by law.

10.2

The Controller can at any time instruct the Processor to erase or return Personal Data to the Controller. The Processor shall respond to such instructions as soon and to the extent reasonably possible.

10.3

Upon the termination of this Agreement the Processor shall, at the Controller’s choosing, erase or return all Personal Data it stores or has access to, to the Controller. The Processor shall also erase all copies of the Personal Data, unless the Processor is obligated by law to store the data.

11. INDEMNITY AND COSTS

11.1

Each Party will hold the other Party harmless of any claims, damages, penalties and any costs or fees, of whatever nature incurred by the Party or for which the Party may become liable due to any failure by the other Party or its employees or agents to comply with any of its obligations under this Agreement or any Data Protection Legislation.

11.2

The Controller shall indemnify and keep indemnified the Processor against all costs that relate to the Processor’s assistance to the Controller based on this Agreement.

12. ACCESS TO INFORMATION ON PROCESSING

12.1

The Processor shall make available to the Controller all information necessary to demonstrate compliance with the obligations laid down by Data Protection Legislation and this Agreement, upon request from the Controller.

13. CONTACTS

13.1

All notifications according to this Agreement shall be done in writing via email. Bokun’s email address is info@bokun.is.

14. OTHER

14.1

This Agreement shall prevail over other agreements in relation to the Processor’s processing of Personal Data on behalf of the Controller and other related obligations. Any other provisions of the Terms of Service shall remain in effect.

14.2

The Processor confirms that it has the ability and competence to fulfil the obligations set out in this Agreement.

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