SERVICE AGREEMENT
This AGREEMENT is entered into on this 21st day of November, 2020 at New Delhi.
By and between
M/s Bliss Inns Private Limited, a company duly incorporated under the provisions of Companies Act, 2013 having its duly registered office at C-351/9, Masjid Park, New Delhi-110033 (hereinafter referred to as “Veekend”) represented through Aditi Balbir who has been duly authorized to sign this MOU through a board resolution dated ………………… which shall include its executers, assigns and successors hereinafter referred to as party of the First Part;
AND
M/s …………………………………………. …., a company duly incorporated under the provisions of Companies Act, 2013 having its registered office at ……………………………….. (hereinafter called the “HOTEL”) represented through XXX who has been duly authorized to sign this MOU through a board resolution dated 01 Nov, 2020 which shall include its executers, assigns and successors hereinafter referred to as party of the Second Part;
(And The Hotel, as detailed further in Annexure A) ( Description of Hotel in Annexure and in the body as contracting party)
VEEKEND & the HOTEL are individually referred to as ‘Party’ and collectively as ‘Parties’. VEEKEND is also referred to hereinafter as ‘Facilitator’.
PREAMBLE
DATA STORAGE LOCATION
Whereas Facilitator is engaged in the business of providing travel and tourism related services and runs an eco-tourism platform with the dominant purpose of promoting eco-tourism where eco-tourism contributes to conservation, preservation and sustainability of development of the natural resources and promotes stewardship of natural and cultural resources. Objective of such eco-tourism is to see that local residents accrue economic and social benefits thereby contributing to project’s long-term success.
And whereas the facilitator is in the business of certifying and measuring the impact on the local level of the ecotourism in association with its partners like UNWTO, GIST etc and for the aforesaid requires data and support from the Hotel.
And whereas facilitator also provides Learning Management Systems and training to various bodies related to hospitality industry particularly those associated with ecotourism and desirous of following ecotourism and sustainability development programs.
And Whereas the Hotel is in the business of providing accommodation services and has represented to Facilitator that it has the necessary legal, technical, and business setup to procure the service of arranging hotel accommodation from Facilitator as defined in this Agreement.
And Whereas Facilitator and the Hotel desire to enter into this Agreement to bind themselves with their mutual obligations as prescribed hereunder, and this Agreement supersedes all prior understanding of the Parties with respect to their dealings with each other on the Scope of Services.
NOW, THEREFORE, IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERE TO AS UNDER:
1. SCOPE OF SERVICES
1.1 The Hotel will provide access to the required information with respect to the availability of its rooms, the services and amenities, and their rates to Facilitator and its Affiliates on a direct connection (API Linking), through a third party channel manager or a similar interface, extranet or reserve certain rooms for booking through Facilitator as may be decided between the Parties. Veekend shall, howewever, have the the right to work out packages based on rates provided by the hotel, although some of such packages may be exclusive to Veekend. In other words, Veekend shall not, at all times be bound by the rates provided by the Hotel and packages as worked out by the Hotel. This will enable the Facilitator and its Affiliates to host the availability of the Hotel’s rooms on their websites and other online and offline sales channels (including mobile applications or browsers, branch offices, and other channel partners etc.). Accordingly, all benefits, rights and obligations under the Agreement will apply to each Affiliate as if the Affiliate is a contracting party to the Agreement. It is hereby clarified that an Affiliate can issue Hotel vouchers (confirming the booking), issue invoice(s) to the Hotel for its commission, receive booking confirmation and collect accommodation charges (inclusive of all fees and taxes) on behalf of the Hotel. However, the invoice capturing the tax details for hotel accommodation services shall, in all cases, be generated and issued by Hotel directly on the customer for the gross amount collected by the Facilitator towards the booking. Facilitator are not required to issue an ‘invoice’ (capturing tax details) for the Hotel accommodation services on customers under any circumstances unless law specifically requires Facilitator to do so. Further, the tax charged in respect of Hotel accommodation services shall be discharged by the Hotel in all cases where Hotel is registered under the respective tax laws. For the purpose of this Agreement, Affiliates includes persons which are controlled by, or control, or under common Control of a person in whose context the word Affiliate is being determined. Control means ability to, directly or indirectly, direct or cause the direction of the management or policies of a person, whether through the ownership of voting securities, by contract.
1.2 The Hotel shall ensure the availability of information with respect to the rooms on real-time basis and further ensure that at no point of time the room is available for booking with some other online travel agents (OTAs) but not with the Facilitator. The Hotel shall be solely responsible for rates made available on extranet or any other medium owned or managed by Facilitator. Facilitator shall have no responsibility with respect to the rates provided by the Hotel.
1.3 The Hotel shall maintain rate parity, and room availability parity between Facilitator and other travel agents, other sales channels of third parties and the Hotel itself.
1.4 Bookings of the Hotel rooms against the customer reservations communicated by the Facilitator will be purely at the choice of the customers and will be as per the user agreement available at the website of VEEKEND (‘VEEKEND User Agreement’). The User Agreement forms an integral part of this Agreement and is incorporated in this Agreement by reference. The Parties agree to deliver their obligations accordingly.
1.5 VEEKEND would be rendering services as a facilitator i.e. arranging hotel accommodation services between the hotel and customers. Accordingly, the Hotel only would be responsible for provision of Hotel accommodation services to the customers booking Hotel rooms through Facilitator. The Hotel shall provide services to the customers booking through Facilitator as per best industry practices. The room rate applicable for any customer making the booking through Facilitator shall be as per the Hotel’s policies depending upon the seasonality, supply and demand factors.
1.6 Hotel agrees and undertakes that it shall at all times act in good faith and shall not in any way commit acts prejudicial to the interest of Facilitator or the customers booking through Facilitator including without limitation, acts which in sole discretion of the Facilitator may amount to defrauding Facilitator or its customers such as misuse or abuse of any benefits, accruals or offers made available by Facilitator, in violation of the applicable laws etc.
1.7 At all times, the Facilitator will be liable to pay to the Hotel only for those bookings which are booked by the customers through Facilitator for genuine utilization by themselves and for which room rate is collected from the customers on behalf of the Hotel. The Hotel will not engage in fictitious booking of its rooms for the purpose of unduly enriching itself with the promotional schemes of Facilitator.
1.8 The amount refundable to the customers in case of cancellation of booking shall be as per the cancellation policy as informed by the Hotel to Facilitator from time to time in writing. No cancellation retention shall be payable to the Hotel in case of cancellation of reservations due to Force Majeure events. The cancellation policy provided in respect of bookings made through Facilitator shall be no less favourable than the policy provided by the Hotel in respect of booking through any other third party or in its own website.
1.9 During the currency of the Agreement, the Parties may agree on the Commercial Terms (which include the commission, validity period of such Terms, and any amendments thereof) from time to time over email or in writing. All such emails and written documents will be deemed to be part of and bound by the terms of this Agreement.
1.10 The Hotel permits Facilitator to translate the Hotel information into any regional language and use the same for its business purposes. Such translated data will be the exclusive property of the Facilitator.
1.11 This Agreement will be valid subject to the Hotel submitting the KYC documents as may be required by the Facilitator prior to the signing of the Agreement, and from time to time as and when should the need arise .
1.12 All descriptions of the services and amenities at Hotel’s website should be consistent with the information as provided by Hotel pursuant to this Agreement, and all such services and amenities should be actually provided for by the Hotel. In case the specified amenities and services are not provided by the Hotel, the Hotel shall be solely responsible to the customer for any complaint in respect of the same.
1.13 Any adverse change(s) in the booking terms as provided by the Hotel, including the cancellation policy, refund policy etc. shall only be applicable with prospective effect for bookings made after the implementation of the revised terms.
1.14 Facilitator shall have the right to solicit reviews of and feedback on the Hotel and services provided to customers or guests who have completed a stay at the Hotel room booked through Facilitator, and may publish these comments and scores on the website/s of the Facilitator and/or its Affiliates. Feedback and reviews may relate to specific feedback with respect to eco-tourism related parameters and Facilitator shall have the right to rate the Hotel on their eco-tourism initiatives based on such feedback received from customers. Facilitator will use its best efforts to monitor guest reviews with respect to certain reasonable criteria of genuineness and proper language, and further reserves the right to remove these reviews. Facilitator will not enter into any discussion, negotiation or correspondence with the Hotel in respect of the content or consequences of the publication or distribution of the guest reviews. However, the Facilitator will use all reasonable methods to procure removal from the website(s) of any comments about the Hotel which have been already posted provided that the Hotel can show by reasonable evidence that such comments are false or are not a genuine expression of that guest’s opinion. The Hotel acknowledges that Facilitator and/or its affiliates are the medium for expression of such opinions and comments and not the creators themselves of such comments. All liability for the content of any such comments is excluded to the extent permitted by law.
1.15 Facilitator may provide customer/s’ information to the Hotel ‘as is’ in the form and content provided by the customer. However, Facilitator does not warrant or vouch for the accuracy or completeness of such information as that is provided by a third person outside the control of Facilitator. Such information shall always be the property of the Facilitator. The Hotel agrees that it shall not solicit reservations directly from those customers booked through Facilitator, and shall not market the Hotel to those persons directly.
1.16 The Hotel permits Facilitator to display the name, brand name, logo, trademark and any other information as supplied by the Hotel to enable Facilitator to fulfill its rights and obligations under this Agreement. If the Hotel is offering any promotional sales of rooms at discounted prices, the same discounted prices shall be offered to customer booking through Facilitator.
1.17 The Hotel shall endeavor to resolve all customer grievances directly with the customer, including those grievances related to quality of rooms, rates, services etc. Facilitator may at its discretion operate a customer service facility to resolve the grievances of the customers over phone and by coordinating with the Hotel, but in all cases the ultimate responsibility shall lie with the Hotel to resolve the grievances.
1.18 The Facilitator reserves the right to levy penalties on the Hotel based on customer feedback with respect to Eco-tourism parameters laid down by Veekend and if the Hotel is found transgressing the eco-tourism norms as laid down by the Facilitator the Hotel shall pay a 10% fine or 10% of the sum of money received from the customer on account of his/her booking in the Hotel.
1.19 Veekend shall have the flexibility to create and use its own content for the hotel (textual, pics and videos), after seeking prior approval from the hotel owner. Veekend shall have exclusive proprietary control and ownership of the contents so developed by Veekend. It is understood and acknowledged by both the parties that Veekend shall have exercise exclusive copyright over the same and the Hotel shall not claim any right whatsoever over the same.
2. COMMERCIAL TERMS
2.1 The room night availability and booking facility provided by the Hotel shall be on commission basis. The Hotel will pay certain commission to each Facilitator (for all the bookings made by the customers through Facilitator) on the gross room rate (including any applicable government taxes and Goods and Services Tax) notified by the Hotel to Facilitator as the listing price of the Hotel room. For the avoidance of doubt, it is clarified that the Facilitator do not have the right to alter the Sell Rate notified by the Hotel. Such commission may be set-off by the Facilitator in its payment to the Hotel, or may be paid separately by the Hotel as the Parties may mutually agree in writing. Accordingly, Facilitator would issue a tax invoice for the commission amount along with applicable taxes, if any. The commission payable to Facilitator shall be 15% on the invoiced value. The Hotel shall raise an invoice on the customer for the gross amount and discharge tax liability. 2.2 At the time of check-in by the customer, the hotel will receive the balance amount, i.e. net of advance paid by customer to Veekend.
2.3 The Facilitator shall be entitled to a fee of Rs 2000/- (Rupees Two Thousand per room per year as its fee for promoting the Hotel as a eco-tourism hotel). The fee will be pro-rated as per commencement date of the agreement with the Hotel and shall be paid in arrears within 15 calendar days at the end of each calendar quarter On non-receipt of the fee within the prescribed time, Facilitator shall have the option of removing/hiding the Hotel listing till receipt of the outstanding fee.
2.4 If the Hotel is offering any promotional sales of room nights at discounted prices compared to usual Sell Rate, the same discounted prices shall be offered to the customers booking through Facilitator.
2.5 Facilitator may offer certain promotions over the room nights of the Hotel to the customers, except on any specific dates duly informed by the Hotel to the Facilitator at least five working days in advance. Irrespective of the discount offered by Facilitator, the Hotel would be required to raise an invoice on the customer for the gross amount and discharge tax liability accordingly.
2.6 Notwithstanding anything mentioned above, Facilitator at its own discretion can charge the customer booking through the respective Facilitator, a service fee for its services, over and above the Sell Rate. For the service fee (if any) charged, Facilitator shall issue a tax invoice on the customer/s only for the amount of service fee along with applicable taxes and Hotel will not have any responsibility to raise an invoice on customer towards such service fee.
2.7 The Hotel fully understands and acknowledges in no uncertain terms the importance of guest feedback on sustainability of ecotourism and thus for the purpose aforesaid agrees to sustainability audit of its infrastructure, standard operating procedures, involvement of local dishes, cuisines and employment of locals in its operation and management of hotel by to the facilitator. The Hotel fully understands and acknowledges the importance of adherence eco-tourism and undertakes to pay a penalty at the rate of 10% of the booking amount if the Eco-tourism feedback rating of the Hotel is found to be is below 3.5.
2.8 If it is so warranted and required by facilitator that a team is required to visit the site of Hotel to carry out the sustainability audit, the Hotel in that case shall defray the expenses of the such team and the team need not pay for food, lodging and transport.
2.9 Notwithstanding what is agreed to in the foregoing, VRersorts shall have the the right to work out packages based on rates provided by the hotel, although some of such packages may be exclusive to Veekend. In other words, Veekend shall not, at all times be bound by the rates provided by the Hotel and packages as worked out by the Hotel and shall have the right to offer its own package to customers and the Hotel hereby acknowledges and agrees to abide by the packages developed and offered by Veekend.
3. TERM AND TERMINATION
3.1 The Agreement shall commence from the Effective Date and shall continue to be valid unless terminated without cause with a notice of 30 days by VEEKEND or the Hotel.
3.2 In case of breach of the terms of this agreement and in case of a breach by a Party capable of being cured the same shall be endeavored to be cured with genuine intent and effect first. However, in case of continued breach and failure to rectify the breach the First Party may terminate this Agreement with immediate notice if the Second Party fails to cure the breach within 15 (fifteen) days from the date the Second Party notifies the other party of the breach. However, the accrued obligations of the Parties prior to the termination shall continue to be fulfilled post termination.
4. INDEMNITY
4.1 Once a booking has been confirmed to the customer, booking through Facilitator pursuant to this Agreement, the Hotel will honour the reservations without fail. In extreme cases where accommodating the customer in the Hotel is not possible for any reason what so ever, the Hotel shall provide customer with an alternate accommodation in same or higher category hotel in the same or nearest locality at no extra cost, including logistics management and expenses incurred in such transfers. In addition, Hotel agrees that in the event that the customer is not satisfied with such alternate accommodation provided by the Hotel and Facilitator is required to provide refund to the customer, then the Hotel shall pay an amount equal to double the per room night cost to Facilitator for each instance of such default.
4.2 Each Party agrees to indemnify and hold the other Party, its officers, directors, employees, successors, and assigns harmless against all losses, damages, liabilities, costs or expenses of whatever form or nature, including, without limitation, attorney’s fees and expenses and other costs of legal defense whether direct or indirect, that they, or any of them, may sustain or incur as a result of any acts or omissions of the former Party or any of its directors, officers, employees, or agents, including, but not limited to, (1) breach of any of the provisions/obligations of this Agreement (2) negligence, misconduct or other tortuous conduct, or (3) misrepresentations made herein.
4.3 Neither Party shall be liable to the other party for any direct, indirect, incidental, punitive, special or consequential damages or losses (including without limitation loss of profit or revenue etc.), whether under contract or in tort, and even if the other party had been advised of the possibility of such damage or loss. Notwithstanding anything to the contrary in this contract, in case of any dispute (including third party claims) the maximum liability of Facilitator under this Agreement is limited to the Commission paid by the Hotel to Facilitator during the period of 12 months preceding the date of dispute for that specific property or unit of the Hotel which is the subject of the dispute.
5. REPRESENTATIONS AND WARRANTIES
5.1 Each Party represents and warrants that: i. It has full legal right, power and authority to carry on its business and to enter into this Agreement and perform all of its obligations, terms and conditions hereunder;
and
ii. Neither the execution nor delivery of this Agreement, nor the fulfilment nor compliance with the terms and provisions hereof, will conflict with, or result in a breach of terms, conditions or provisions of, or constitute a default under, or result in any violation of its charter documents or by laws, if any, or any agreement, restrictions, instrument, order, judgment, decree, statute, law, rule or regulation to which it is subject, or require any consent, approval or other action by any court, tribunal, administrative or governmental body.
5.2 The Hotel additionally represents that:
i. It is operating in compliance with all the applicable laws, regulations and statues, and it has the requisite licenses in place to operate its business.
ii. It has full right, title and interest in and to all trade names, trademarks, service marks, logos, symbols, proprietary marks and other intellectual property marks (“IPR”) which it provides to Facilitator, for use related to the Services, and that any IPR provided by a Party will not infringe the marks of any third party; Hotel shall permit the usage of its logo, trademarks, symbols, service mark etc. to enable Facilitator to fulfill its rights and obligations under this Agreement which shall be upon the specific permission availed by Facilitator in writing from Hotel.
iii. It shall at no time charge any extra charges, taxes and/or levies (except where there is a statutory change in tax rate or any legislation governing taxation laws), over and above what has been specified at the time of booking. Hotel shall only charge the guest for any additional facility used by the guest which was not included while making the booking.
iv. The information provided by it to Facilitator in any form and manner whatsoever, is accurate, complete and true representation of the details of the Hotel.
6. TAXES
6.1 Pursuant to this Agreement each Party, with respect to the services rendered in its individual capacity, would be solely responsible for the compliance of all applicable laws including but not limited to legislations regarding Goods and Services Tax (GST), central, state or local levies with respect to payment of tax, duties, levies, charges, cess, etc. Thus, the tax collected by Facilitator as part of the room charges shall be remitted to the Hotel and it shall be sole responsibility of the Hotel to deposit the same to the concerned authority under the applicable law. Further, Facilitator shall not be liable to deposit such amount unless specifically mandated by law. In cases where the law requires Facilitator to deposit tax, the Hotel shall not be eligible to collect any GST from the customer through Facilitator. Further, Facilitator shall deduct/ collect/ withhold any tax to be levied under applicable tax laws, in such manner as may be prescribed, from the amount payable to the Hotel (i.e. the amount collected from the customer and to be remitted to the Hotel) and shall furnish appropriate documentation for the same.
6.2 All payments for commission made by the Hotel to Facilitator under the Agreement would be subject to withholding tax as per the law applicable on the date of payment. The Party withholding the tax would be responsible for providing appropriate proof, certificate, documents, etc. to enable the other Party claim the benefit of the same.
6.3 The Parties would be responsible for their own tax assessments, audits, inquires, etc. and would keep the other Party indemnified from any additional tax demand arising out of the same.
6.4 The Hotel undertakes to provide Facilitator with necessary documents, as may be required by law from time to time, to prove the Hotel’s compliance with the applicable tax laws with respect to this Agreement including its obligations to deposit the necessary taxes with the authorities. Any interest, penalties or recoveries from Facilitator by any authority on account of default by the Hotel will be solely borne by the Hotel on its own account.
6.5 The Hotel authorizes Facilitator to collect the taxes (under the applicable laws) on behalf of the Hotel from the customers at the time of booking and remit the same to the Hotel for depositing the same with the government.
7. CONFIDENTIALITY
7.1 The Parties agree that any information (including any written, tangible and/ or intangible information) exchanged between or disclosed by either Party to the other Party from time to time, which by its inherent nature is confidential or is specifically mentioned as confidential, shall be the confidential information of the said Party and either Party shall not disclose the same to the public without taking the prior written approval of the other Party.
7.2 The obligation of confidentiality contained under this Clause shall not apply to information which:
i. At the time of the disclosure is or already was in the possession of the other Party as evidenced by written documents; or
ii. At the time of the disclosure was already in the public domain as evidenced by written documents; or
ii. At the time of the disclosure was already in the public domain as evidenced by written documents; or
iii. After the disclosure became generally available to the public through no fault of the other Party; or
iv. Was subsequently disclosed to the other Party by a third party having a lawful right to disclose the information and being under no obligation of confidentiality with regard to a Party; or
v. Has been developed by the other Party independently on its own and without reliance on any information provided by the disclosing Party; or
vi. Is required to be disclosed by a Party to comply with applicable laws or governmental regulations, provided that the said Party provides prior written notice of such disclosure to the other Party and takes reasonable and lawful actions to minimize the extent of such disclosure.
8. GENERAL
8.1. Headings in this Agreement are inserted for convenience only and shall not be used in its interpretation. The recitals and Annexures form part of this Agreement and shall have the same force and effect as if expressly set out in the body of this Agreement, and any reference to this Agreement shall include any recitals and Annexures to it.
8.2. The Hotel will be hosted as per Clause 1 at the sole discretion of Facilitator; the Hotel shall not have any rights to insist specific performance by facilitator.
8.3 This Agreement is governed by the laws of India and Parties agree to the exclusive jurisdiction of courts of New Delhi, India.
8.4. The waiver of any right in this Agreement shall be in writing and signed by the Party against whom enforcement is sought, and shall not be a waiver of any other right in this Agreement.
8.5. The Hotel shall not assign this Agreement to any other person without the Facilitator prior written consent.
8.6 Any notices under this Agreement by a Party to the other Party shall be issued to the respective Party’s address mentioned in Annexure A.
8.7. Modifications to this Agreement shall be done by (1) means of a separate amendment as an agreement signed by both Parties, or (2) by way of a mutually accepted email, or (3) by means of a revised link sent by Facilitator and acceptance of the same by the Hotel, or (4) by means of a written communication via email or otherwise by Facilitator and deemed acceptance by means of conduct by the Hotel.
8.8. Unless as otherwise specified in the Agreement, neither Party shall be responsible for any failure to comply with its respective obligations under this Agreement, where such failure or delay is due to events of Force Majeure (as defined below provided that the affected Party notifies the non-affected Party within reasonable time of the commencement of the event of Force Majeure. Force Majeure events shall mean any circumstances beyond the reasonable control of Parties like war, riot, flood, fire, Acts of God, epidemic, explosion, disease, earthquake, hijacking, sabotage, crime.
8.9. This Agreement and Annexure A, if any, constitute the complete and exclusive statement of the Agreement between the Parties, and supersedes all proposals, and all other prior or contemporaneous communications between the Parties relating to the subject matter hereof, whether written or oral.
8.10. The Parties acknowledge and agree that the relationship between them is solely that of principal and agent (to the extent of collection of payment on behalf of the hotel for further remitting to the same), operating independently and nothing in this Agreement is to be construed as employer/employee, franchise/franchisee, partners, joint ventures, co-owners, or otherwise participants in joint or common undertaking. Facilitator shall be responsible for collecting the concerned amount from the customer as an intermediary in the fiduciary capacity, which amount shall be duly remitted to the Hotel as per the arrangement contained in this Agreement.
9. DISPUTE RESOLUTION
9.1 All or any of dispute/s arising out of or in connection with this agreement shall be by referred to arbitration conducted exclusively at New Delhi under the provisions of the Arbitration and Conciliation Act, 1996.
9.2 The arbitration proceedings shall be conducted by the sole arbitrator. Such sole arbitrator shall be appointed by the First party and Second party shall have no objection to the appointment of the same. The arbitration proceedings shall be conducted only in English language. The decision of sole arbitrator shall be final and binding for both the parties. The arbitrator so appointed shall be entitled for his arbitration fees which shall be borne by both the parties equally.”
IN WITNESS WHEREOF the Parties have signed this agreement to be duly executed on the day, month and year first above written in the presence of the following witnesses:
| For Bliss Inns Pvt. Ltd. | For |
| By: ______________________________ | By: _ |
| Name: | Name: _____________ |
| Title: ______ | Title: _ |
| Date: _______ | Date: |
| WITNESSES: | |
|---|---|
| 1. Signature | ___________________________ |
| Name | ___________________________ |
| Designation | ___________________________ |
| Company name | ___________________________ |
| 2. Signature | ___________________________ |
| Name | ___________________________ |
| Designation | ___________________________ |
| Company name | ___________________________ |
Annexure A
Date Of Effect
Details of the Hotel
Hotel Name:
Address:
City Pin or Zip Code:
State:
Country: India
Star Rating:
Email Id: