We are Fixers Travel Limited a company incorporated in England with company number 09245218 and registered office address at 34 High Street, Aldridge, Walsall, West Midlands, England, WS9 8LZ (“Fixers”, “we” or “us”).
By accepting these Terms you are agreeing to their content and these Terms form the basis of the contract between us.
1. The Services
1.1. These Terms of Service (“Terms”) cover the provision to you of our software, platform and tools (together the “Platform”) and any related services which are provided by Fixers to you (the Platform and such services being referred to as the “Services”).
1.2. The Services will enable you to market and sell products and services online on your own branded ecommerce site (the “Site”) that is provided using our Platform.
1.3. These terms set out the obligations that both Fixers and you have in relation to the Services and your Site.
1.4. We may update, modify or supplement these Terms from time to time. The current version of our Terms shall be available on our website.
2. Sign up process
2.1 You will be required to follow our sign up process and your application is subject to approval by Fixers at our discretion. We will confirm to you once your application has been approved.
3. Your Responsibilities
3.1. Our ability to carry out the Services is dependent upon your full and timely co-operation as well as the accuracy and completeness of any information and data provided by you. You shall provide us with access to, and use of, all information (including descriptions, graphics and images), data and documentation (the “Content”) reasonably required by us to perform the Services.
3.2. You shall be responsible for the accuracy and completeness of the information and materials on the Site. You shall be responsible for updating the Site.
3.3. You shall be responsible for uploading and maintaining Content on the Site, including listing of all products and services and all related Content, including all images, descriptions, pricing, updates and corrections.
3.4. You shall ensure that the information (including text, design and imagery) on the Site does not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”).
3.5. You acknowledge that we have no control over any content placed on the Site and we are not responsible for monitoring the content of the Site. We reserve the right to remove content from the Site where we suspect, in our opinion, such content is Inappropriate Content.
3.6. You shall indemnify us against all damages, losses and expenses arising out of or in connection with any action or claim relating to the Content or any other information contained on your Site, including (without limitation) any Inappropriate Content.
4. Your eCommerce and Sales
4.1. We acknowledge that you may use the Site for certain sales and ecommerce activities (namely selling experiences and holidays) or any other products or services. We have no responsibility for any products, services or sales made on the Site. All sales are made by you and all contractual relationships are between you and the customer. We have no contractual relationship or liability to your customers.
4.2. Your activities on the Site shall be in compliance with all laws, regulations and industry standards in any jurisdiction that you make sales. You shall be responsible for the following:
…(i) Ensuring that customers are provided with the services or products that you sell;
…(ii) Maintaining appropriate customer services and having sufficient resources to deal with customer queries, complaints, refunds and cancellations;
…(iii) Making sure that your Site has suitable customer terms and policies required by applicable law and regulations;
…(iv) To the extent applicable, compliance with The Package Travel and Linked Travel Arrangements Regulations 2018 (or similar regulations). Including all information to be provided to consumers under the regulations, provision of customer services, refunds and security (insolvency protection);
…(v) Compliance with any industry specific regulation or guidance applicable for the service or product that you are selling or advertising;
…(vi) Ensuring your Site complies with all other applicable consumer laws;
…(vii) Payment of taxes (including all sales taxes and VAT);
4.3. Restriction. You agree not to sell or advertise any products or services which in our opinion are fraudulent, counterfeit, stolen, abusive, infringes our or a third party’s intellectual property, is adverse to our reputation, prohibited or fails to comply with any applicable laws. If we find that you are advertising or selling such products or services we shall without having to give notice to you and at our discretion suspend Services to you and disable your Site.
4.4. You shall indemnify us against all damages, losses and expenses arising out of or in connection with any action or claim (i) in respect of any product or service sold on the Site; (ii) by or on behalf of any customer or user of the Site; (iii) any failure to comply with any applicable laws, regulations or industry guidance; (iii) any failure to comply with Clauses 4.2 or 4.3 or any other part of these Terms.
5. Charges and Payment
5.1. In consideration for the Services, you will pay the charges set out in our standard published price list or otherwise agreed with you in your account dashboard (the “Fees”).
5.2. If we have not received payment within 5 day safter the date payment was expected, and without prejudice to any other rights and remedies of Fixers:
…(i) we may terminate the Service or we may disable your account and access to all or part of the Services or Site. Fixers shall be under no obligation to provide any or all of the Services or the availability of the Site while the invoice(s) concerned remain unpaid; and
…(ii) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
5.3. All amounts and fees payable by you stated or referred to in this agreement:
…(i) shall be payable in the currency selected on the Site. Please note, monthly subscription fees will be charged in USD;
…(ii) are non-cancellable and non-refundable, irrespective of any cancellation by or refund to your customers;
…(iii) are exclusive of value added tax, which shall be added by Fixers’ at the appropriate rate;
…(iv) shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.4. The Fees shall accrue on the initial sale from the Site. If there is any cancellation or any refund is made to a customer, in each case for any reason, such cancellation or refund shall not affect Fixers’ Fees that has accrued on such transaction.
6. Provision of Fixer’s Platform for Your Sales
6.1. As part of the Services, we will provide a platform which will enable us as your agent to collect payments related to your products and services provided by you to your customers (which may integrate an appropriately regulated third party payment processor) Fixers will act as your agent andany payment received by us from the customer on your behalf will discharge the customer’s obligations to make payment to you. Our relationship with any third party payment processor is governed by its terms and conditions. The actions of the third party payment processors are beyond our control and we shall not be liable to you for any of their actions. While we will try to provide advance notice, you agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, restrict or disable access to or remove from the Services, any payment processor, without any liability to you or your customers, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses (except where prohibited by applicable law). The third party payment processors may provide invoices for any transaction fees associated with transactions that you will be liable for.
6.2. You agree to us deducting and setting off our Fees and all other amounts due to us from any amounts paid by your customers on the platform. If you have to issue a refund such refund shall not affect the fees due or paid to Fixers by you. The balance of any amounts we hold on your behalf will be paid to you in accordance with the timeframes we have agreed with you, but we will not be responsible for any delays or transfer failures due to any third parties.
6.3. If at any time there is a negative balance on the account, Fixers reserve the right to deduct any outstanding sums from the credit card provided or otherwise set off from any other balance held by Fixers or otherwise recovered through direct debit or invoiced to you to clear the negative balance without any further consent from you.
6.4. If Fixers incurs any credit card recharges (or similar fees) as a result of receiving payments from your customers and making refunds to your customers, such costs will be for your account and payable by you to Fixers and you agree to fully indemnify Fixers for such amount.
6.5. For any currency conversions, Fixers shall add its standard exchange rate fee from time to time in place, as amended by Fixers from time to time. This shall be added on to the price being paid by the customer for the product or service.
7. Intellectual Property
7.1. For the purpose of these Terms, “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
7.2. All of the Intellectual Property Rights in the Content is your property. When you provide Content to the Site or provide such Content to us for us to carry out any of the Services, you grant us (and any of our sub-contractors or third party providers working on our behalf) a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of, communicate, publish, publicly display, publicly perform and distribute the Content.on the Site and to perform the Services and to comply with any of our legal obligations.
7.3. You shall indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Content infringes the Intellectual Property Rights of a third party.
7.4. Any Intellectual Property Rights in the Services and Site (other than the Content you have provided) is Fixers’ property. Subject to you paying the applicable Fees and all other amounts due to Fixers, we grant you a non-exclusive license of such Intellectual Property rights for the purpose of operating the Site.
7.5. We shall indemnify you against all damages, losses and expenses arising as a result of any action or claim that the Site (excluding the Content) infringes the Intellectual Property Rights of a third party.
7.6. The indemnities above are subject to the following conditions:
…(i) the indemnified party promptly notifies the indemnifier in writing of the claim;
…(ii) the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
…(iii) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
…(iv) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
For the purposes of this clause, “group” means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
8.1. Each party undertakes that it shall not at any time during the course of the agreement and after the Site ceases to be used or the Services provided, disclose to any person any confidential information concerning the business, affairs, customers, clients of the other party or any member of the group to which the other party belongs, except as permitted by this clause or with the written agreement of the other party.
8.2. Each party may disclose the other party’s confidential information:
…(i) to its employees, officers, representatives, sub-contractors, members of its group, or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Terms. Each party shall ensure that its employees, officers, representatives, sub-contractors or advisers to whom it discloses the other party’s confidential information comply with this clause; and
…(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3. Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Terms.
9. Data Protection
9.1. For the purpose of these Terms:
…9.1.1.“Agreed Purposes” means all uses relating to or in connection with (i) the provision of software systems and services allowing event and experience companies, tour operators and holiday/travel agencies to market effectively to, and communicate with, their customers; (ii) advertising and marketing to customers and offering products and services; (iii) providing after-sales support and services.
…9.1.2.“Controller”, “processor”, “data subject”, “personal data”, “personal data breach”, “processing” and “appropriate technical and organisational measures” have the meaning given in the UK Data Protection Legislation in force at the time.
…9.1.3.“Data Discloser” means a party that discloses Shared Personal Data to the other party.
…9.1.4.“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
…9.1.5.“Data Protection Legislation” means the UK Data Protection Legislation and any other applicable European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time in any relevant jurisdiction which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
…9.1.6.“Permitted Recipients” means the parties to this agreement, the employees of each party, any third parties engaged to perform obligations in connection with this agreement.
…9.1.7.“Shared Personal Data” means the personal data obtained by the parties pursuant to the Site and the Services including (without limitation) the following categories of information relevant to a data subject:names and contact details;
……a) payment and address details; ……b) marketing preferences; ……c) browser or device information; and ……d) information about use of the Site.
9.2. Effect of non-compliance with UK Data Protection Legislation. Each party shall comply with all the obligations imposed on a controller under the UK Data Protection Legislation, and any material breach of the UK Data Protection Legislation by one party shall, if not remedied give grounds to the other party to terminate this agreement with immediate effect.
9.4. Particular obligations relating to data sharing. Each party shall:
…(i) ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
…(ii) give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
…(iii) process the Shared Personal Data only for the Agreed Purposes;
…(iv) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
…(v) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this agreement;
…(vi) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
…(vii) not transfer any personal data received from the Data Discloser outside the EEA unless the transferor:
……a) complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and
……b) ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the GDPR; or (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) Binding corporate rules are in place or (iv) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
9.5. Mutual assistance. Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:
…(i) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
…(ii) promptly inform the other party about the receipt of any data subject access request;
…(iii) provide the other party with reasonable assistance in complying with any data subject access request;
…(iv) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
…(v) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the UK Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators;
…(vi) notify the other party without undue delay on becoming aware of any breach of the UK Data Protection Legislation;
…(vii) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the personal data;
…(viii) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
…(ix) maintain complete and accurate records and information to demonstrate its compliance with this clause 9; and
…(x) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the UK Data Protection Legislation.
9.6. Indemnity. Each party shall indemnify the other against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the indemnified party arising out of or in connection with the breach of the Data Protection Legislation by the indemnifying party, its employees or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it. The liability of Fixers under this clause shall be subject to the limits set out in clause 11.
10.1. Each of the parties warrants to the other that it has full power and authority to enter into these Terms and carry out the obligations set out within.
10.2. Each of the parties warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms and the operation of the Site.
10.3. The Fixers’ Services are provided to you on an “as is” basis. We do not warrant that the Services or the Site will be uninterrupted or error free. We shall not be responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities. We shall not be responsible for any acts or omissions of any third parties, including any of our sub-contractors.
11. Limitation of Liability
11.1. Fixers shall have no liability for any damage caused by errors or omissions in any Content, information, instructions or scripts provided to Fixers by you in connection with the Services or Site, any modifications that you (or any third party on your instructions) make to the Site, or any actions taken by Fixers at your direction. Fixers shall also have no liability in relation to any products or services provided to customer by you.
11.2. These Terms set out the full extent of our obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into these Terms or any collateral contract (whether by statute or otherwise) are hereby expressly excluded to the fullest extent permitted by applicable law.
11.3. Nothing in this agreement excludes the liability of Fixers:
…(i) for death or personal injury caused by Fixers’ negligence; or
…(ii) for fraud or fraudulent misrepresentation.
- 11.4. Subject to clause 11.3:
…(i) Fixers shall not be liable whether in tort (including for breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms (including any loss of revenue suffered by you if the Site is unavailable); and
…(ii) Fixers’ total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the fees that Fixers has received from the you during the 12 months immediately preceding the date on which the claim arose.
12.1. Without affecting any other right or remedy available to it, either party may terminate it with immediate effect by giving written notice to the other party if:
…(i) the other party commits a material breach of any Term where such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
…(ii) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
…(iii) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
12.2. Without affecting any other right or remedy available to it, Fixers mayterminate with immediate effect if: (i) you fail to pay any amount due to Fixers within 5 (five) days;
…(ii) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil its obligations under this agreement has been placed in jeopardy; or
…(iii) you undergo a change of control. For the purposes of this clause “change of control means” change of the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
12.3. On termination of the Terms for whatever reason:
…(i) you shall pay to us any and all outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, Fixers may submit an invoice, which shall be payable immediately on receipt;
…(ii) any provision of the Terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Terms shall remain in full force and effect;
…(iii) you shall continue to provide any services or deliver any products in relation to customer orders on the Site that you accepted prior to the date of termination; and
…(iv) termination or expiry of the Terms shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Terms which existed at or before the date of termination or expiry.
13. Force Majeure
Fixers shall have no liability to you under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Fixers or any other party), failure of a utility service or transport or telecommunications network, Act of God, war, riot, civil commotion, malicious damage, threat of the spread of any illness or disease or any epidemic or pandemic, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Fixers or sub-contractors, provided that you are notified of such an event and its expected duration.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15. Rights and Remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
16.1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
16.2. If any provision or part-provision of this agreement is deemed deleted under clause 16.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
17. Entire Agreement
17.1. These Terms constitute 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.
17.2. Each party acknowledges that in entering into the agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
17.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
17.4. Nothing in this clause shall limit or exclude any liability fo rfraud.
18.1. You shall not without our prior written consent assign, transfer, charge, sub-contractor deal in any other manner with all or any of its rights or obligations under these Terms.
18.2. We may at any time assign, transfer, charge ,sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
19. Third Party Rights
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third parties) Act 1999.
Any notice or other communication given to a party under or in connection with these Terms shall be in writing and send by email, in the case of Fixers to and for you to the email address that is associated with your account.
21. Governing Law
This Agreement will be construed in accordance with and governed by the laws of England and the Parties submit to the exclusive jurisdiction of the English courts.