In this Agreement and the Recitals:
Affiliate means a company owned by, or under the common ownership of another company such that they are in the same group of companies with each other (and for such purposes, a “Pattern Affiliate” means an Affiliate of PATTERN).
Business Day means a day that is not a Saturday, Sunday or public, federal or state holiday in the country in which the Services are initiated by PATTERN or the Pattern Affiliate, unless otherwise agreed in writing and incorporated into this Agreement.
Confidential Information means information received or accessed by one Party from the other Party in connection with this Agreement which is designated ‘confidential’, is by its nature confidential, or which a Party knows or reasonably ought to know is confidential.
Consumer means a person who is purchasing Products for their own use via the Travel Agency or PATTERN (or Pattern Affiliate) as applicable.
Contract Year means a period of 12 consecutive months commencing from the Effective Date and thereafter a period of 12 consecutive months commencing from the end of the previous Contract Year.
Data Protection Legislation: means, as applicable, all data protection and privacy laws and regulations which apply in the Territories to a Party and to the extent that a Party is processing personal data, on behalf of the other Party, the Parties agree that they will comply with data protection and privacy laws and regulations in that Territory under the terms of the data processing agreement as is found at www.patterninsurance.com/dataprocessing, and for such purposes “personal data”, “data breach”, highly sensitive personal “information”, data processor” and “data controller” shall be interpreted according to Data Protection Legislation.
Fees means the fees payable by PATTERN to the Travel Agency, all as set out in Schedule 1.
Go-Live means the first date on which PATTERN advises the Travel Agency that PATTERN Products are actually available to the Travel Agency at the SELCO Platform for introduction to the Consumers.
Gross Non-Insurance Premium means the Net Premium paid by the Consumer for the non-insurance Product(s), plus any applicable Tax.
Gross Insurance Premium means the Net Premium paid by a Consumer for the insurance Product(s) plus any applicable Tax.
Insolvency Event means, in respect of a Party, if that Party becomes insolvent or bankrupt (or otherwise enters into any equivalent arrangement) or unable to pay its debts within the meaning of applicable laws in the jurisdiction in which it is domiciled or makes a petition in respect of any of the foregoing.
Insurance Provider means a third-party insurance provider, producer or broker for whom PATTERN, or a Pattern Affiliate, are an appointed broker, producer or representative and who provides the insurance for the applicable insurance related Products.
Net Premium means the price of the relevant Product prior to calculating applicable Tax on that Product, as notified by PATTERN to the Travel Agency.
Products means the insurance and/or non-insurance products that are created for the Travel Agency or Travel Agency Affiliate by PATTERN or the Pattern Affiliate, as further described and shown from time to time in any applicable Territory according to the Product Description.
Product Description means the description of the Products, the cancellation policy and the claims handling and applicable contact details, all as described from time to time at www.patterninsurance.com//AVIUK
Selling Point means the location where the Products (or group of Products) are actually offered to the Consumer for purchase as described in Schedule 1.
Services means the services provided by PATTERN (or a Pattern Affiliate) under this Agreement, consisting of making the Products available for the Travel Agency’s Consumers to book through the Selling Point.
Tax means any and all sales tax, imposts, duties and insurance and other related taxes.
Term means the term of this Agreement, as stated in Schedule 1.
Territory means the state, country or territory(ies) in which the Travel Agency may receive the Services, as are described in Schedule 1 or as PATTERN may otherwise specify from time to time.
2. TERM AND PROVISION OF PRODUCTS
2.1 This Agreement commences on the Effective Date and continues for the Term unless terminated earlier in accordance with section 8 or Schedule 1.
2.2 PATTERN (or the Pattern Affiliate) will enable the provision of the Products to the Travel Agency (or Affiliate of the Travel Agency, as stated in Schedule 1 or in any other document agreed between the Parties) from the Go-Live provided that the ability of the Travel Agency to introduce the Products shall only be for so long as the Travel Agency can access and make use of the SELCO Platform.
2.3 Where a Pattern Affiliate is providing the Products then these terms and conditions shall apply as between that Pattern Affiliate and the Travel Agency (or Travel Agency Affiliate).
2.4 PATTERN and the Pattern Affiliates will regularly look at optimizing the Product portfolio to make the best and most appropriate Products available to the Consumer taking into account market conditions and the legal and regulatory environment. The available Product portfolio can be found at www.patterninsurance.com/AVIUK products, as updated by PATTERN from time to time. In the event that PATTERN (or a Pattern Affiliate) is required to withdraw a Product, PATTERN (or the Pattern Affiliate) shall use commercially reasonable endeavours to find a substitute to such Product with a replacement that the Travel Agency (acting reasonably) deems suitable, and if substitution is not possible or commercially viable then the Travel Agency may terminate this Agreement within 30 days of PATTERN (or the Pattern Affiliate) confirming no such alternative Product is available, on written notice to PATTERN.
3. INDEMNITY AND LIABILITY
(a) Neither Party shall be liable to the other Party, whether in contract, tort (including any liability for negligence) or otherwise, for any loss of revenue, business, opportunity, data, contracts and anticipated savings or profits (whether or not arising in the normal course of events or the other Party has been advised of the possibility of such loss) or for any indirect or consequential losses and damages.
(b) The total aggregate liability of either Party to the other Party under this Agreement whether in contract, tort (including negligence), under statute or otherwise including all loss or claim(s), shall be limited to an amount equivalent to one point five times the total amount of Fees paid by PATTERN to the Travel Agency under this Agreement in the Contract Year prior to the relevant incident or incidents.
(c) Notwithstanding the provisions of Sections 3(a) and 3(b), there shall be no limitation of either Party’s liability for death or personal injury caused by the negligence of the relevant Party. Notwithstanding Section 3(b), PATTERN shall be fully liable for any breach by it of its own regulatory obligations and the Travel Agency shall be fully liable for any breach by it of its legal and regulatory obligations in respect of this Agreement.
4. GENERAL OBLIGATIONS
PATTERN will, when providing the Products, comply with its own legal and regulatory obligations. In the event that a Travel Agency has any query or complaint related to the Products or Services, they shall contact PATTERN or the Pattern Affiliate using the contact details CS@PatternInsurance.com and PATTERN shall acknowledge such query or complaint within two Business Days of its receipt. PATTERN shall use reasonable endeavors to resolve any query or complaint as soon as is reasonably possible and seek to provide further detail within 7 Business Days of its receipt. PATTERN will close any issue or complaint within 3 months of receipt, unless it is subject to an ongoing legal or arbitration process.
5. THIRD PARTIES
The Travel Agency acknowledges that neither PATTERN nor a Pattern Affiliate will be responsible for any failure to access the Products if the SELCO Platform is unavailable to the Travel Agency or in the event of an infrastructure failure which has not been caused by PATTERN (or the Pattern Affiliate).
In consideration of the sale of the Products, PATTERN shall pay the Fees as set out in Schedule 1 or an Annex. Such Fees shall be paid at such times and in such manner as set out in Schedule 1. The Fees stated in Schedule 1 may, where expressly stated, be subject to Tax which, where applicable, shall be charged in addition to the Fees at the applicable rates. PATTERN will pay the Fees to the Travel Agency by electronic transfer to the bank account nominated in writing by the Travel Agency from time to time.
7. CONFIDENTIAL INFORMATION
Each Party shall hold the Confidential Information of the other Party in strict confidence during the Term of this Agreement and for one year after its termination. A Party may disclose Confidential Information of the other Party to the extent required by applicable law or regulations. Notwithstanding any other provision of this section 7, either Party may disclose the terms of this Agreement to its Affiliates, professional legal advisors, investors (and potential future investors or acquirers but subject to confidentiality undertakings being obtained), auditors, Insurance Providers, regulators and accountants and only for the purposes contemplated by this Agreement. PATTERN may refer to the Travel Agency as a customer of PATTERN (and/or its Pattern Affiliate) in its marketing materials.
This Agreement will continue for the Term unless terminated in accordance with Schedule 1 or as follows: A non-defaulting Party (the “Terminating Party”) may terminate this Agreement upon written notice where there has been a material breach by the other Party (the “Defaulting Party”) of any of the Defaulting Party’s obligations under this Agreement, and the Terminating Party has provided the Defaulting Party with prior written notice specifying the breach: (i) where that breach is capable of remedy, if it has not been remedied within 14 days of the date of that notice; or (ii) immediately if the breach is not capable of remedy. Notwithstanding the foregoing, in the event of an Insolvency Event, the other Party may terminate this Agreement forthwith upon written notice.
(a) Neither Party may assign or transfer any of its rights and obligations under this Agreement without the prior written consent of the other Party, such approval not to be unreasonably withheld or delayed, except that: (i) PATTERN may assign this Agreement to an Affiliate of PATTERN and (ii) with respect to the Travel Agency, in the event of a sale of all or substantially all its assets, or of a change of control through stock sale, merger, or change of management company for a property or similar transaction, this Agreement shall be automatically assigned to the acquiring entity or management company, as applicable, and the Travel Agency shall upon written request provide such information as reasonably required by PATTERN in respect of the same in order for PATTERN to meet its legal and regulatory obligations.
(b) This Agreement is governed by the laws of the state of Delaware and each Party submits to the non-exclusive jurisdiction of the courts of Wilmington, Delaware, United States of America. Where Services and Products are being provided in a different Territory by a Pattern Affiliate, the governing law shall be the law of the Territory in which that Pattern Affiliate’s legal entity is domiciled. This Agreement contains the entire agreement of the Parties with respect to its subject matter and supersedes all prior understandings between the Parties with respect to that subject matter.
(c) Rights under this Agreement cannot be waived, except in writing signed by the Party granting the waiver. This Agreement is binding upon the Parties when executed by the Travel Agency.
(d) All notices provided for in this Agreement must be in writing, marked to the attention of the recipient’s contact person and sent to the addresses for notices set out in this Agreement or to such other address(es) as are subsequently notified in writing for such purposes. Notices sent by hand are taken to be received when delivered; and notices by post are taken to be received by the fifth Business Day after posting.
(e) No change to any part of this Agreement may be implemented except by way of an amendment to the Agreement in writing signed by a duly authorised representative of each Party.