Terms of Service & Data Processing Agreement
Bokun provides its service to you subject to the following terms
Bokun provides its service to you subject to the following terms
TripAdvisor LLC, a Delaware limited liability company located in the United States of America (which we refer to in these Terms of Service as “Bokun”), provides services under these Terms of Service.
Bokun provides suppliers and resellers of touristic services (including but not limited to tours, activities, attractions, accommodation, car rentals, transport and/or any type of event) (“User”) with access to a day-to-day management and sales system including but not limited to booking engines (“Software”). The booking engines can be added to websites by the User to manage its services and to make them bookable (one or more at a time, with optional add-ons), and to simultaneously sell services from other local or global service providers through the various Software channels including but not limited to the “Bokun Marketplace”, with the option of entering into commission contracts and of packaging products together through agent and affiliate portals, and other channels. The Software allows the User to track commissions; manage multiple rates, offers and currencies; calculate taxes; generate invoices; provie an overview of account payables and receivables; receive payments through payment providers, and calculate refunds. The User can provide its 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 allows the User to sell its products through global online travel agencies integrated with Bokun. Distributors that are not yet integrated with Bokun can receive 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 Service shall be subject to the provisions of these Terms of Service. (Together, Bokun and the User will be referred to in these Terms of Service as the “Parties”).
By using all or any portion of the Service and/or by creating an account with Bokun, the User represents that it accepts these Terms of Service. The User further agrees 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, the User agrees to use the Service in a manner consistent with all applicable laws and regulations and in accordance with these Terms of Service. If the User does not agree to these Terms of Service, it shall not use the Service.
The Service is provided “as-is” and Bokun assumes no responsibility for the timeliness, deletion, misdelivery or failure to store any User communications, personalisation settings or content, information or other data. The User is responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). The User is alone responsible for all such fees. In addition, the User must provide and is responsible for all equipment necessary to access the Service.
Bokun reserves the right, 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. The User agrees that Bokun shall not be liable to the User or any third party for any such amendments, suspension or discontinuance of the Service.
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, volume 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) the User and its customers and/or agents 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.
To be able to use the Service, the User will have to create a User account.
The User is responsible for maintaining the confidentiality of its password and other account information. The User is fully responsible and liable for all activities on its account.
The User shall immediately notify Bokun of any unauthorised use of its account, password or any other breach of security.
The User shall ensure that it exits and logs off its account at the end of each usage session. Bokun will not be liable for any loss or damage arising from the User’s failure to comply with this Clause 2.
For the Service, the User shall pay a monthly service fee in the amount stated in Bokun’s pricelist, which can be found on www.Bokun.io/pricing (the “Service Fee”). The Service Fee ispayable monthly.
Bokun shall send an invoice for the Service Fee to the User at the beginning of each month, based on booking value and booking dates (not travel dates) in the preceding month.
If the booking value for a month that has already been invoiced subsequently decreases because of cancelations under the User’s cancelation policies, the User shall earn an amount in credit at Bokun corresponding to the Service Fee that was invoiced in respect of the booking value that subsequently decreased. This credit shall be used to lower Bokun’s next invoice but no amount already invoiced shall be refundable.
Each invoice submitted by Bokun shall be paid in full by the User by credit card. The User shall submit its credit card details before being invoiced by Bokun.
Bokun reserves the right to increase the Service Fee from time to time with effect from the following month by providing the User with no less than 30 days’ notice.
Bokun’s intellectual property rights in or arising out of the Service shall at all times be the property of Bokun. Nothing in these Terms of Service shall be regarded as the assignment of any such intellectual property rights to the User.
Any intellectual property rights in or arising out of the Service that may be owned by third parties shall at all times remain with such third party owners.
Bokun does not claim ownership of the User’s content that is submitted or made available for the use of the Service.
By using the Service, the User grants Bokun a worldwide, royalty-free and non-exclusive 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 by or on behalf of the User. 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.
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 websites listing Bokun’s clients.
The User agrees 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.
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 the Service.
The User may not reverse engineer, decompile or disassemble any Software.
The Service may provide, or third parties may provide, links to other websites or resources (“Third Party Resources”). Bokun takes no responsibility for such Third Party Resources and does not endorse and is not responsible or liable for any content, advertising, products, services and/or any other materials (“Third Party Materials”) on or available from such Third Party Resources.
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 the use of or reliance on any Third Party Materials available on or through any Third Party Resources.
In relation with the Service, each Party shall comply with all requirements of applicable data processing laws and regulations (the “Data Protection Legislation”). Each Party acknowledges that, for the purposes of the Data Protection Legislation, the User is the data controller and Bokun is the data processor.
The Parties agree to the terms of the data processing agreement set forth in Annex 1 in relation with Bokun’s processing of personal data on behalf of the User.
Bokun shall compile and retain records of transactions and data related to the Service provided to the User. Bokun reserves the right to delete such records.
All usage of the Service is at the User’s own risk.
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 the Software will be uninterrupted, timely, secure or error-free, nor do they provide any warranty as to (a) the results that may be obtained from the use of the Service or the Software including their accuracy, reliability, quality, adequacy, timeliness or authenticity; or (b) the accuracy, reliability, quality, adequacy, timeliness or authenticity of any advertisements, information, services, products, merchandise and/or other material that is purchased through or provided via the Service. The Service and the 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.
In no event will Bokun, or any person or entity involved in creating, producing or distributing the Service or Software, 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 or Software. 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.
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 use of the Service and/or Software, other than claims arising from gross negligence or wilful misconduct of Bokun, its affiliates, respective officers, directors and/or employees.
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.
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.
Bokun may terminate the Service with immediate effect by giving written notice to the User if:
the User commits material breach of any of the provisions of these Terms of Service; or
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;
the User fails to pay any amount due and payable pursuant to Clause 3, after Bokun has sent the User a notification of payment failure;
due to inactivity, no payment has been received from the User for a period of ninety (90) days or more; or
if the User objects to the use of any sub-processor according to the Parties’ data processing agreement.
Upon termination, Bokun may in its sole discretion close the User’s Bokun account, delete any existing data from such account, and refuse any future submission of data.
Upon termination, all unpaid Service Fees shall become due and payable.
Bokun may update or replace these Terms of Service without prior notice to the User and at our sole discretion at any time by posting a new version to the Bokun website. The User’s continued access to or use of the Service and/or Software indicates the User’s acceptance of the current published version of the Terms of Service.
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).
Please note that TripAdvisor LLC does not accept legal notices or service of legal process by any means other than hard copy post delivered to TripAdvisor LLC, 400 1st Avenue, Needham, MA 02494, USA. For the avoidance of doubt and without limitation, TripAdvisor LLC therefore does not accept notices or legal service deposited upon any of its affiliates or subsidiaries.
All other notifications given in connection with these Terms of Service may be in writing via email. Bokun’s email address is email@example.com.
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.
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.
These Terms of Service and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of the Commonwealth of Massachusetts, USA. Each party hereby consents to the exclusive jurisdiction and venue of courts in Massachusetts, USA and stipulates to the fairness and convenience of proceedings in such courts for all disputes, both contractual and non-contractual, arising out of or relating to the use of the Services. All claims against TripAdvisor LLC arising from or relating to the Services must be heard and resolved in a court of competent subject matter jurisdiction located in the Commonwealth of Massachusetts. Use of the Services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including, without limitation, this paragraph. Nothing in this clause shall limit the right of TripAdvisor LLC to take proceedings against a User in any other court, or courts, of competent jurisdiction. The foregoing shall not apply to the extent that applicable law in a User’s country of residence requires application of another law and/or jurisdiction.
In relation to the Service, Bokun (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 User (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 Data Processing 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.
The Processor will process Personal Data related to the Controller’s business activities on behalf of the Controller (the “Data Subjects”).
The Processor will process the personal data uploaded by the Controller on the Processor’s Software (the “Personal Data”). They may include e.g.:
The Processor is only permitted to process Personal Data on behalf of the Controller in accordance with this Data Processing Agreement or in accordance with the Controller’s documented instructions, unless the Processor is authorized to do so by law.
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.
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.
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.
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.
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.
The Processor is responsible for ensuring that the technical and organizational measures adopted at all times are appropriate and sufficient.
For the purposes of preventing and limiting damage caused by human error, theft, fraud and other abuse, the Processor will implement and maintain:
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 Data Processing Agreement.
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 Data Processing Agreement.
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.
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.
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.
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.
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.
The Controller accepts the Processor’s use of sub-processors to perform specific processing activities according to this Data Processing 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.
The Processor shall impose materially the same data protection obligations as set out in this Data Processing Agreement and the Data Protection Legislation on any sub-processor.
The Processor shall always remain fully liable to the Controller for the performance of the sub-processor’s obligations.
The Processor shall assist the Controller by appropriate technical and organizational measures, to the extent reasonable possible, to respond to requests for exercising any 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.
The Processor shall refer any Data Subjects’ requests which relate to the Controller’s data to the Controller.
The Data Processing Agreement shall be valid as long as the Terms of Service are in force.
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.
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.
Upon the termination of this Data Processing 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.
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 Data Processing Agreement or any Data Protection Legislation.
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 Data Processing Agreement.
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 Data Processing Agreement, upon request from the Controller.
All notifications according to this Data Processing Agreement shall be done in writing via email. Bokun’s email address is firstname.lastname@example.org.
This Data Processing 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.
The Processor confirms that it has the ability and competence to fulfil the obligations set out in this Data Processing Agreement.
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