Your Provider Agreement with Switch Lifestyle ME FZ LLC
1. ACCEPTANCE OF THIS AGREEMENT; KEY TERMS
1.1 The Platform (as defined below) is provided to you on the terms and subject to the conditions set out in this Agreement. By accessing the Platform, you accept that you have read, understood and agree to be bound by this Agreement. For the purpose of this Agreement, and wherever the context so requires, the terms "you" and "your" shall mean or refer to any person who is using the Platform as a Service Provider, or is otherwise exercising rights under this Agreement.
1.2 The following definitions apply throughout this Agreement, unless the contrary intention appears:
means a day (except Fridays, Saturdays and public holidays) on which banks in the UAE are open for normal banking business;
has the meaning given in clause 2.5.1(a) and "Booking Statements" shall be construed accordingly;
has the meaning given in clause 11.1;
has the meaning given in clause 2.4.1;
means 15% (or such other percentage as may be agreed between Switch and a Service Provider from time to time);
has the meaning given in clause 14.1;
has the meaning given in clause 5.1.1;
means the Dubai International Financial Centre;
means a customer or attendee of one or more Experiences and/or Events;
End User Booking
has the meaning given in clause 2.7.2;
End User Data
has the meaning given in clause 2.7.1;
means any interactive health, fitness or wellness event to be hosted by a Service Provider at a Facility or any other location and "Events" shall be construed accordingly;
means any interactive, single or multi-day health, fitness or wellness activity or other related consultation session or service to be hosted by a Service Provider at a Facility or any other location and "Experiences" shall be construed accordingly;
- the unexpected death or serious illness of key personnel employed or otherwise mandated by a Service Provider to host the relevant Experience(s) and/or Event(s) booked by an End User;
- serious injury of key personnel employed or otherwise mandated by a Service Provider to host the relevant Experience(s) and/or Event(s) booked by an End User; or
- the loss of any Facility to be used by a Service Provider in order to host the relevant Experience(s) and/or Event(s) booked by an End User.
means the physical location or premises made available by Switch at which the relevant Experience(s) and/or Event(s) shall take place;
means, in relation to either party, any total or partial failure of performance by it of all or some of its duties and obligations under this Agreement to the extent such failure is occasioned by any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo or prevention from or hindrance in obtaining any energy or other similar supplies;
has the meaning given in clause 2.2.1;
Intellectual Property Rights
means any patent, copyright, inventions, database rights, design right, registered design, trade mark, trade name, brand, logos, service mark, know-how, utility model, unregistered design or, where relevant, any application for any such right, know-how, trade or business name, domain name (under whatever extension, e.g. .com, .nl, .fr, .eu, etc.) or other similar right or obligation whether registered or unregistered or other industrial or intellectual property right subsisting in any territory or jurisdiction in the world;
has the meaning given in clause 2.5.1(c);
means the offering of Experiences and/or Events by a Service Provider and "Offerings" shall be construed accordingly;
has the meaning given in clause 14.2.2;
means the website(s), mobile applications, tools, platforms or other devices of Switch on which the System is made available;
has the meaning given in clause 2.5.1(b);
means any health, fitness or wellness related merchandise (or any part of such merchandise), which is supplied by a Service Provider and made available for purchase by End Users at a Facility or any other location in conjunction with any Experiences and/or Events taking place there and hosted by that Service Provider and "Products" shall be construed accordingly;
has the meaning given in clause 5.1.1;
means the same or better rates for the same Event, Experience and/or Product as are available on the websites, applications, platform, tools or other devices owned or operated by or on behalf of the Service Provider, with any competitor of Switch (which includes any online or offline reservation or booking system or intermediary) and/or with any other (online or offline) third party that is a business partner of or in any other way related with or connected to the Service Provider.
has the meaning given in clause 10.1;
has the meaning given in clause 15.8;
means a person who creates an Offering via the Platform and "Service Providers" shall be construed accordingly;
means the online booking system of Switch through which:
- Service Providers can make their Offerings available and list any of their Products available for purchase by End Users at any Experiences and/or Events; and
- End Users can make bookings of Experiences and/or Events comprised in such Offerings.
has the meaning given in clause 11.1;
has the meaning given in clause 2.5.1(e);
Third Party Platforms
means platforms that publish information and/or content that are not owned or managed by Switch;
means the United Arab Emirates;
means value added tax and any similar sales or turnover tax applicable in the UAE; and
means 9:00am to 5:00pm on a Business Day.
2. YOUR OBLIGATIONS
2.1 Performance Standards
2.1.1 You shall:
(a) using all reasonable skill and care, provide the Experiences and/or Events booked by End Users from the Commencement Date for the Term; and
(b) use reasonable endeavours to ensure that such provision is:
(i) in compliance with reasonable performance standards or principles discussed and agreed with Switch, from time to time; and
(ii) in compliance with the performance standards and/or qualifications criteria issued by any external, regulatory or other certifying body applicable to you.
2.2.1 Information provided by you for inclusion on the Platform (the "Information") shall, at your sole discretion, comprise (without limitation) images, photos, videos and business listings/information, and will include:
(a) information about your Offering (for instance, a service description, booking rates (including all applicable taxes, levies, surcharges and fees), the identity of the Facility or other location and calendar availability);
(b) any deficiencies, restrictions and requirements that apply (for instance, any minimum age, proficiency or fitness requirements relevant for attendance of an Experience or Event);
(c) listings of any Products to be made available by you for purchase by End Users at a Facility or any other location in conjunction with any Experiences and/or Events taking place there and hosted by you (for instance, a product specification, price (including all applicable taxes, levies, surcharges and fees), materials, workmanship and design description); and
(d) other pertinent details as may be reasonably requested by Switch, from time to time.
2.2.2 Switch shall agree the content of the Information from time to time with the Service Provider and mutually agree such changes as may be necessary to correct inaccurate or misleading information.
2.2.3 You represent and covenant that the Information shall, at the time it is provided, is true, accurate and not materially misleading. You shall, periodically review and update such information to maintain its accuracy. You shall update the Information in a timely manner and may, at any time, change via the Platform:
(a) the booking rate per available Experience or Event;
(b) the number of available Experiences or Events that can be booked by End Users and the allocated time slots for each such Experience or Event; and
2.2.4 The information provided by you for the Platform shall remain your exclusive property.
2.2.5 Unless Switch otherwise agrees, all updates of, changes and/or amendments to the Information (including booking rates, prices and availability of Experiences, Events and/or Products) shall be made by you directly either online through the Platform, or via any mobile application, or by such other means as Switch may reasonably indicate.
2.3 Rate Parity
2.3.1 You shall, for the Term of this Agreement, give Switch Rate Parity and the restrictions and conditions (including the booking rate per Experience and/or Event or price per Product) for Experiences, Events and Products made available by you via the Platform shall, at all times, be in accordance with this clause 2.3and make sense for all parties involved (including End Users).
2.3.2 Within the spirit of this Agreement and subject, at all times, to Rate Parity, you are encouraged to provide Switch with fair access to your relevant Experiences and Events (Services) comprised in your Offering and the rates and prices available during the Term of this Agreement (during periods of low and high demand).
2.4.1 For all:
(a) Experiences and/or Events hosted by you at Switch Spaces (e.g. partner hotels) and booked by End Users on the Platform;
(b) Experiences and/or Events hosted by your location, or at locations other than Switch Spaces and booked or attended by End Users coming through the Switch app; and
(c) Products purchased by End Users at a Facility or any other location in conjunction with any Experiences and/or Events booked through the Switch app.
Switch shall charge you a service fee, calculated in accordance with clauses 2.4.2or 2.4.3(15%) (the "Commission").
2.4.2 Unless agreed otherwise between you and Switch, the aggregate Commission for Experiences, and/or Events hosted by you and booked or attended by the End User booked on the Platform, is equal to the multiple of:
(a) the number of Experiences, and/or Events hosted by you and booked or attended and paid for by the End User booked on the Platform;
(b) the booked rate per Experience or Event (as at the time the booking was made by the End User); and
(c) the Commission Percentage (15%).
2.4.3 Unless agreed otherwise between you and Switch, the aggregate Commission for Products purchased by the End User at a Facility or any other location in conjunction with any Experiences and/or Events booked on the Platform is equal to the multiple of:
(a) the number of Products purchased by End Users at a Facility or any other location in conjunction with any Experiences and/or Events booked on the Platform;
(b) the price per Product (as at the time the purchase was made by the End User); and
(c) the Commission Percentage (15%).
2.5 Payment of Commission
2.5.1 Subject to clause 2.8, the Commission for bookings and purchases made through the platform in any one calendar month (the attendance date of the End Users of such bookings being within that same month) will be remitted in accordance with the following terms:
(a) a statement of Experiences and/or Events hosted by you and booked by End Users on the Platform, in addition to any Products purchased and the corresponding Commission will be issued to you electronically by Switch on a bi-weekly basis (the "Booking Statement");
(b) Switch will deduct the Commission from the total monies received from End Users that have booked one or more Experience(s) and/or Event(s) with you via the Platform ("Platform Proceeds");
(c) if the Commission is less than the Platform Proceeds, the remaining balance after deduction of the Commission ("Net Amount") will be paid out to you in United Arab Emirates dirhams, on the 5thand 20thday of each calendar month following the issuance of each Booking Statement;
(d) payment of the Net Amount shall be made by Switch directly to you by wire transfer (to such bank account as identified by you) and you shall bear all costs as charged by your bank for the transfer of the Net Amount;
(e) if the Commission is greater than the Platform Proceeds, Switch will issue you with an invoice (which shall be sent by mail or email), and you will be required to remit to Switch, in accordance with the terms of this Agreement and each such invoice, any additional Commission payable by you by way of a top-up payment (the "Top-Up") in United Arab Emirates dirhams, within 14 days of the invoice date; and
(f) payment of the Top-Up shall be made by you directly to Switch by wire transfer (to such bank account as identified by Switch) and you shall bear any costs as charged by your bank (where applicable) for the transfer of the Top-Up.
2.6.1 Any sum payable or calculated under this Agreement shall be deemed to be exclusive of any VAT which is chargeable on the supply for which that sum is consideration for VAT purposes. The person receiving the supply shall pay any amounts of VAT in addition to any amounts payable under this Agreement upon the delivery of a valid VAT invoice.
2.6.2 Without prejudice to clause 2.6.1, any amounts of VAT that are chargeable in respect of the sale of the Products shall be borne by you. To the extent that Switch becomes liable to account for such VAT, you shall pay to Switch an amount equal to 100 per cent of the VAT so chargeable (together with an amount equal to 100 per cent of any interest, penalties, fines or surcharges imposed in connection therewith), on demand, as soon as reasonably practicable after being notified of the related liability by Switch and shall fully indemnify Switch for any interest, penalties, fines or surcharges imposed in connection therewith. To the extent that you become liable to account for such VAT, you shall pay such amounts directly to the relevant taxing or other authority by no later than five Business Days prior to the latest date on which such VAT can be paid to the relevant taxing or other authority in order to avoid a liability to interest or penalties accruing. To the extent that Switch becomes liable for and pays any amounts of VAT that are chargeable in respect of the sale of the Products and for which you are liable to account to the relevant taxing or other authority, you shall fully indemnify Switch for the amount of such VAT and for any interest, penalties, fines or surcharges imposed in connection therewith.
2.7 Bookings and Complaints
2.7.1 When a booking is made by an End User on the Platform, you will receive a confirmation, which shall include the date and number of Experiences and/or Events booked, the Experience/Event type and booking rate, the End User’s contact details (collectively the "End User Data") and such other specific requests made by the End User. Switch is not responsible for the correctness and completeness of the End User Data.
2.7.2 By making a booking through the Platform, a direct contract and legal relationship is created between you and the End User (the "End User Booking").
2.7.3 The binding nature of the End User Booking and other Service Provider obligations shall only arise as and when the relevant notification is received by the Service Provider or the information has been correctly reflected on the Platform. If availability or other details of the Event have changed or have not been updated in a timely fashion on the Platform, all costs and/or any responsibility for such failure shall be for the account of Switch, as operator of the Platform.
2.7.4 Subject to clause 2.7.3 above, you are bound to accept the End User as your contracting counterpart and to handle the End User Booking in compliance with the Information (including the booking rate) contained on the Platform at the time the booking was made and the booking confirmation, including any supplementary information and/or requests made known by the End User.
2.7.5 To the extent possible, all correspondence and communications between you and the End User shall be made through the Platform and within the context of this Agreement.
2.7.6 Other than the fees, extras and (sur-)charges set out in the confirmed booking or price (as displayed on the Platform), you shall not charge the End User any transaction or administration fee or charge for the use of any payment method.
2.7.7 Complaints or claims in respect of your Offering, your supply of Products or specific requests made by End Users are to be dealt with by you, without mediation by or the interference of Switch. Switch is not responsible for and disclaims any liability in respect of such claims from the End Users. oduct in perfect resale-able conditio
2.8 Booking Modifications, Cancellations and Refunds
2.8.1 You shall provide the Experiences and/or Events booked by End Users and in the event that you are unable to meet your obligations under this Agreement, for any reason whatsoever, you shall promptly notify Switch and, to the extent affected, the End User.
2.8.2 You are responsible for any modifications to a booking that are made via the Platform and agree to liaise directly with the End Users in respect of any additional fees, extras and (sur-)charges, which Switch has prescribed, in any modification, cancellation or refund policy issued by Switch, from time to time, as being applicable thereto.
2.8.3 In the event that no Experience and/or Event is available to an End User due to an overbooking, you shall:
(a) find a suitable alternative Experience and/or Event of an equal or superior standard to the Experience(s) and/or Event(s) holding the End User’s guaranteed booking; and
(b) reimburse and compensate Switch and/or the End User for all reasonable costs and expenses made, suffered, paid or incurred by Switch and/or the End User due to or caused by the overbooking. Any amount charged by Switch in this respect shall be paid within 14 days after receipt of the relevant invoice.
2.8.4 In the event that you are unable to meet your obligations under clause 2.8.3(a), the End User will receive a full refund from Switch and you will reimburse and compensate Switch and/or the End User for all reasonable costs and expenses made, suffered, paid or incurred by Switch and/or the End User due to or caused by the overbooking, limited to 100 aed per event. Any amount charged by Switch in this respect shall be paid within 14 days after receipt of the relevant invoice.
2.8.5 You are not permitted to cancel any booking made by an End User on the Platform, unless:
(a) both Switch and the End User have been notified of such cancellation at least 24 hours before the End User’s scheduled attendance date of the Experience and/or Event; or
(b) cancellation is made for one or more Extenuating Circumstances.
Unless another resolution can be reached, and the End User is happy to continue with the booking on amended terms or for a rescheduled session and whatever refund can be agreed with the End User.
2.8.6 Any booking made by an End User on the Platform that is cancelled by you pursuant to clauses 2.8.5(a)or 2.8.5(b)will not attract Commission and the End User will receive a full refund from Switch.
2.8.7 Any booking made by an End User on the Platform that is cancelled by you and not in compliance with clauses 2.8.5(a)or 2.8.5(b)will attract Commission (which shall be payable by you in accordance with the terms and subject to the conditions of this Agreement) and the End User will receive a full refund from Switch.
2.8.8 Any booking made by an End User on the Platform that is cancelled by such End User at least 24 hours before that End User’s scheduled attendance date of the Experience and/or Event, will not attract Commission and the End User will receive a full refund from Switch.
2.8.9 Any booking made by an End User on the Platform that is cancelled by such End User less than 24 hours before that End User’s scheduled attendance date of the Experience and/or Event, or cases of no-show, will attract Commission, you will receive your payment and the End User will not receive any refund from Switch.
2.8.10 The requirement to accept returns of and give refunds in relation to Products purchased by End Users shall be determined in accordance with any internal policies and/or procedures issued by you, from time to time, provided always that such internal policies and procedures reflect all rights and remedies implied by any applicable laws and consumer protection regulations. Commission received for Products purchased by End Users will not be affected by any return of or refund due to faults or defects with products and will remain payable by you in accordance with the terms and subject to the conditions of this Agreement, unless a refund is issued within 14 days or purchase to and End User who is returning a product in perfect resale-able condition.
2.9 Direct Marketing to End Users
You agree not to specifically target end users that have been obtained via switchto by-pass the switch booking platform to book your services. You are however permitted to promote your services to end users acquired by switch, in either online or offline marketing promotions.
You will gain access to the Platform by way of a user ID and password, which shall be generated by you. You shall safeguard and keep the user ID and password confidential and safely stored and shall not disclose such information to any person other than those who need to have access to the Platform for the purpose of this Agreement. You shall immediately notify Switch of any (suspected) security breach or improper use.
3.1 You hereby grant Switch a non-exclusive, royalty free and perpetual worldwide right and license:
3.1.1 to use, reproduce, have reproduced, distribute, communicate and make available in any method and display those agreed upon elements of your Intellectual Property Rights as provided to Switch by you pursuant to this Agreement and which are necessary for Switch to exercise its rights and perform its obligations under this Agreement;
3.2 In the event that any use of the license does not comply with your brand guidelines or quality standards, you reserve the right to request that the necessary corrective measures be taken as soon as possible by Switch or for the item in question to be removed from public channels.
4. RANKING, REVIEWS AND MARKETING
4.1.1 The order in which you are listed on the Platform (the "Ranking"), is determined automatically and unilaterally by Switch. Ranking is based on and influenced by various factors, including but not limited to, the minimum availability stated by you, the number of bookings related to the number of visits to the relevant services page on the Platform (the "Conversion"), the volume realised by you, the ratio of cancellations, End User review and overall satisfaction scores, End User geolocation, service history and previous bookings/purchases, End User popularity and preferences, the number and type of complaints received from End Users and your on-time payment record.
4.1.2 Switch will actively engage with the Service Provider to find appropriate ways of profiling their offering and, where relevant, ranking them in a promotional location on the website. Any ranking and/or profiling will be at Switch’s discretion, but mindful of the particular model of the Service Provider (i.e. lower volume, specialist product offering).
4.2 End User Reviews
4.2.1 End Users, who have attended Experiences and/or Events hosted by you will be asked by Switch to comment on their experience with you and to provide a score for certain aspects of their experience.
4.2.2 Switch reserves the right to publish these comments and scores on the Platform.
4.2.3 Switch undertakes to use its reasonable efforts to monitor and evaluate, in particular, negative End User reviews where the Service Provider shall be afforded the opportunity to address the issues (either for accuracy, reasonableness or directly with the End User), before such review is published.
4.2.4 Switch shall monitor all reviews in respect of obscenities, false information or the mention of an individual's name. Switch reserves the right to refuse, edit or remove unfavourable reviews in the event that such reviews include obscenities, inaccurate or false information or mention an individual's name.
4.2.5 Switch shall not have and disclaims any liability and responsibility for the content and consequences of (the publication or distribution of) any comments or reviews howsoever or whatsoever where such review has been published in accordance with and in compliance with the above procedures.
4.2.6 The End User reviews are for exclusive use by Switch and can be made available on the Platform. Switch exclusively retains ownership of all rights, title and interest in and to the End User reviews. You are entitled to re-publish, market, promote, link to, integrate or share the End User reviews with the prior written approval of Switch.
4.3.1 Switch is entitled to promote you using your name(s) and branding (including, without limitation, all and any files, images, photos, videos, sounds, social media and/or business listings/information and directory information or any other material made available by you on the Platform) for the purpose of both offline and online marketing, including email marketing and/or pay-per-click (PPC) advertising. Switch runs online marketing campaigns at its own costs and discretion. As per clause 3.2, you reserve the right to request edits or removal of any marketing content that does not comply with your brand guidelines.
4.3.2 You agree not to specifically target the Switch brand directly through keyword purchases (Google Adwords or App Store Ads) that use Switch’s Intellectual Property Rights.
5.1 You undertake to obtain and maintain, at your own expense, a policy or policies of insurance with reputable insurers, valid and enforceable in each of the jurisdictions in which you are making an Offering and (where applicable) selling your Products, against potential liabilities under or in relation to this Agreement.
6. PLATFORM DATA AND OPERATION
6.1 Switch endeavours to maintain 100% uptime, but acknowledges that from time to time, this might not be possible due to factors including;
6.1.1 Server maintenance;
6.1.2 Telecoms service provider; or
6.1.3 System bugs or crashes.
In the event that any Platform downtime is experienced, all End User bookings and enquiries will be routed through the Switch customer support line and relayed to the Service Provider. In the instance that Platform downtime prevents an End User from making, amending or cancelling a booking, Switch will take full responsibility for corrective measures (limited to the cost of re-booking an Event or Experience with the Service Provider on behalf of the End User for another date/time).
6.2 In the event that the Platform does not effectively deliver the required End User booking information, Switch takes full responsibility for corrective measures (limited to the cost of re-booking an Event or Experience with the Service Provider on behalf of the End User for another date/time).
6.3 All payment data processed on the Platform is done so via a third party payment gateway which is fully PCI DSS compliant. Switch does not process or store any payment information and therefore cannot take responsibility for the processing of payments.
7. REPRESENTATIONS AND WARRANTIES
7.1 You represent and warrant to Switch that for the Term:
7.1.1 you have all necessary rights, power and authority to use, operate, own, sell (as applicable), (sub)license and have Switch make available and/or advertise on the Platform:
(a) the relevant Experiences, Events and Products; and
(b) the Intellectual Property Rights,
in respect of, as set out or referred to in the Information made available on the Platform.
7.1.2 you comply with all applicable laws, and hold all permits, licenses and other governmental authorisations and requirements necessary for conducting, carrying out and continuing your operations and business, making the Experiences and Events available on the Platform for booking by End Users and (where applicable) selling the Products to End Users at a Facility or any other location in conjunction with any Experiences and/or Events;
7.1.3 you and your directors and (direct, indirect and ultimate (beneficial)) owners (and their directors) are not in any way connected to, part of, involved in or related to or under the control, management or ownership of:
(i) listed as (special) designated nationals/entities or blocked person/entities; or
(ii) otherwise subject to trade embargo, or financial, economic and trade sanctions; or
(b) parties/persons guilty of money laundering, bribery, fraud or corruption.
7.2 Each party represents and warrants to the other party that for the Term:
7.2.1 it has the full corporate power and authority to enter into and perform its obligations under this Agreement;
7.2.2 it has taken all corporate action required by it to authorise the execution and performance of this Agreement;
7.2.3 this Agreement constitutes legal valid and binding obligations of that party in accordance with its terms; and
7.2.4 each party shall comply with all applicable governmental laws, codes, regulations, ordinances and rules of the country, state or municipal under which law the relevant party is incorporated with respect to the products (to be) offered and/or services (to be) rendered by such party.
7.3 Except as otherwise expressly provided in this Agreement, neither party makes any representations or warranties, express or implied, in connection with the subject matter of this Agreement and hereby disclaims any and all implied warranties, including all implied warranties of merchantability or fitness for a particular purpose regarding such subject matter.
8.1 Each party agree to defend, indemnify and hold each other, and each others’ lenders, parent companies, affiliates, officers, directors, agents and employees, harmless from and against any claims, losses, damages and liabilities (including, but not limited to, reasonable attorneys fees and court costs, but excluding consequential damages) on account of any claim by a third party for bodily injury or property damage against the indemnified party to the extent caused by the negligent act or omission, or wilful misconduct of, or breach of this agreement by, the indemnifying party or the indemnifying party’s employees, contractors, subcontractors or agents, in connection with the performance of their respective obligations under this agreement.
9. LIMITATION OF LIABILITY
9.1 Neither Party nor its directors, officers, employees, agents, affiliated companies or subcontractors are liable to the other Party for any damages, costs or losses to any person, any diminution in value, or any liability whatsoever, unless directly caused by its or their negligence, wilful default or fraud.
9.2 Switch is never liable to you for:
9.2.1 any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising from any cause beyond Switch’s reasonable control and the effect of which is beyond Switch’s reasonable control to avoid; or
9.2.2 any damages, costs or losses to any person, any diminution in value, or any liability whatsoever that Switch could not reasonably have anticipated when you gave Switch an instruction; or
9.2.3 any loss of business, loss of goodwill, loss of opportunity or loss of profit.
9.3 You are never liable to Switch for:
9.3.1 any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising from any cause beyond Your reasonable control and the effect of which is beyond Your reasonable control to avoid; or
9.3.2 any damages, costs or losses to any person, any diminution in value, or any liability whatsoever that You could not reasonably have anticipated when you gave Switch an instruction; or
9.3.3 any loss of business, loss of goodwill, loss of opportunity or loss of profit.
9.4 Nothing in this Agreement will exclude or limit any duty or liability that applicable laws do not allow to be excluded or limited.
10. SERVICE MANAGEMENT AND ESCALATION
10.1 With effect from the date of this Agreement, each of the parties shall appoint a representative (the "Representative") who shall be:
10.1.1 generally responsible for managing the overall performance of that party's obligations under this Agreement;
10.1.2 authorised to agree to any minor variation to, and/or minor waiver in respect of, this Agreement that may be requested from time to time; and
10.1.3 generally available during (and in exceptional circumstances outside) Working Hours to discuss (whether in person or otherwise) any aspect of this Agreement.
10.2 Each party may replace its Representative from time to time (on written notice to the other party) with a person of equivalent business seniority.
10.3 Each party shall notify the other of the contact details of its Representative and shall thereafter promptly notify the other of any temporary or permanent change to the contact details of the Representative.
10.4 Any dispute or difference which arises between the parties, shall if not first resolved by the relevant operational managers, be referred to the parties' Representatives for determination.
11. TERM, TERMINATION AND SUSPENSION
11.1 Unless agreed otherwise, this Agreement shall commence on the date hereof ("Commencement Date") for an indefinite period of time (the "Term"). Each party may terminate this Agreement at any time and for any reason, by written notice to the other party with due observance of a notice period of 30 days.
11.2 Each party may terminate this Agreement (and close the Experiences and/or Events on the Platform) or suspend this Agreement in respect of the other party, with immediate effect and without a notice of default being required in case of:
11.2.1 a material breach by the other party of any term of this Agreement (e.g. delay of payment, insolvency, the provision of wrong information or receipt of a number of End User complaints); or
11.2.2 (filing or submission of request for) bankruptcy or suspension of payment (or similar action or event) in respect of the other party.
11.3 Any notice or communication by Switch of "closure" ("close", "closed") of the Experiences and/or Events on the Platform (or similar wording) shall mean termination of the Agreement. After termination, suspension or closure, the Service Provider shall honour outstanding bookings for End Users and shall pay all Commission (plus costs and expenses, if applicable) due on those bookings in accordance with the terms and subject to the conditions of this Agreement.
11.4 In the event of termination of this Agreement, all the rights and obligations of the parties shall forthwith cease, except for those provisions with expressly or by implication are intended to continue without limit in time. Termination of this Agreement shall not affect any rights, liabilities or remedies arising under this Agreement prior to such termination.
12. BOOKS AND RECORDS
12.1 The systems, books and records of Switch (including the Platform, Booking Statements and any related emails) shall be considered conclusive evidence of the existence and receipt by you of the End User Booking and the amount of the Commission or damages or costs due to Switch under this Agreement.
12.2 You shall upon first request of Switch fully cooperate and assist Switch with (and, within 10 Business Days of such first request, disclose):
12.2.1 all information in respect of the identification of your (ultimate) owner, manager and/or controller; and
12.2.2 such full and accurate records of all Experiences and Events provided by you and all charges incurred in relation to such Experiences and Events as are necessary for Switch to audit and verify the accuracy of the Commission and other fees it has levied.
13. FORCE MAJEURE
13.1 No party shall in any circumstances be liable to the other party for any loss of any kind whatsoever by reason of any failure or delay in the performance of its obligations hereunder to the extent resulting from a Force Majeure event.
13.2 If a party shall become aware of circumstances of Force Majeure which give rise to or which are likely to give rise to any such failure or delay on its part it shall forthwith notify the other party. If the Force Majeure event continues for more than 40 Business Days after the day on which the Force Majeure event starts, then the other party may terminate the affected services by giving not less than 10 Business Days' written notice to the other party and to the extent that a party does not receive the services due to a Force Majeure event, it shall have no obligation to pay the charges for that service and may engage at its own cost such third parties as it wishes to provide alternative services.
14.1 The parties understand and agree that in the performance of this Agreement, each party may have access to or may be exposed to, directly or indirectly, confidential information of the other party (the "Confidential Information"). Confidential Information includes End User Data, transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information that either a disclosing party designates as being private or confidential or of which a receiving party should reasonably know that it should be treated as private and confidential.
14.2 Each party agrees that:
14.2.1 all Confidential Information shall remain the exclusive property of the disclosing party and the receiving party shall not use any Confidential Information for any purpose except in fulfilling this Agreement;
14.2.2 it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties and agents (the "Permitted Persons") to maintain, the confidentiality and secrecy of the Confidential Information;
14.2.3 it shall disclose Confidential Information only to those Permitted Persons who need to know such information in furtherance of this Agreement;
14.2.4 it shall not, and shall use prudent methods to ensure that the Permitted Persons do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information; and
14.2.5 it shall return or destroy all ((hard and soft) copies of) Confidential Information upon written request of the other party.
14.3 Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it:
14.3.1 is or becomes part of the public domain through no act or omission on the part of the receiving party;
14.3.2 was possessed by the receiving party prior to the date of this Agreement;
14.3.3 is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or
14.3.4 is required to be disclosed pursuant to law, court order, subpoena or governmental authority.
14.4 Nothing in this Agreement shall prevent, limit or restrict a party from disclosing this Agreement (including the any technical, operational, performance and financial data (but excluding any End User Data)) in confidence to an affiliated (group) company that is owned and controlled by either party.
14.5 The parties shall use commercially reasonable efforts to safeguard the confidentiality and privacy of End User Data and to protect it from unauthorised use or release. Each party agrees to comply with all applicable (data and privacy) laws, rules and regulations of the jurisdiction where such party is incorporated.
15.1.1 Switch may make changes to the Agreement and will provide you with prior notification for your consideration and written acceptance.
15.1.2 If any future changes to this Agreement are unacceptable to you, you should discontinue using the Platform and immediately destroy the user ID and password.
15.2.1 Neither party shall:
(a) mortgage, charge, pledge, declare any trust over or otherwise encumber, deal with or dispose of any one or more of its rights under this Agreement; or
(b) assign any one or more of its rights under this Agreement,
without the other party's prior written consent.
15.3.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
(a) delivered by hand or by a pre-paid next working day delivery service or sent by email; and
(b) sent to:(i) Switch at:
Marina Plaza,Level 29, Office 65,
Dubai, United Arab Emirates
Attention: Gary Blowers
(ii) You, at:
The details provided in the signed Agreement.
or to any other addresses as are notified in writing by one party to the other, from time to time.
15.3.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time it is left at the relevant address;
(b) if sent by a pre-paid next working day delivery service, on the second Business Day after posting; or
(c) if sent by email, at the time of transmission.
15.3.3 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.
15.4 Entire Agreement
15.4.1 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.
15.4.2 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.
15.4.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
15.4.4 Nothing in this clause shall limit or exclude any liability for fraud.
15.5.1 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.
15.5.2 If 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.
15.6 No Partnership or Agency
15.6.1 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.
15.6.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
15.7 Governing Law
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 laws of the UAE.
15.8 Dispute Resolution
Any dispute between the parties arising out of or relating to this Agreement (including any question regarding its existence, validity or termination and any dispute relating to any non-contractual obligations arising out of or in connection with this Agreement) shall be finally resolved by arbitration under the DIFC/LCIA Rules (the "Rules"), which Rules shall be deemed to be incorporated by this clause. The number of arbitrators shall be three. The claimant shall nominate one arbitrator, the respondent shall nominate one arbitrator and the third arbitrator, who shall act as chairman, shall be jointly nominated by the other arbitrators so nominated. The seat, or legal place, of arbitration shall be the DIFC and the language to be used in the arbitral proceedings shall be English.
This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.