Channel Partners These Channel Partner Terms and Conditions (“Online T&C”) along with the Services Agreement including but not limited to any attachments, schedules, addendums attached thereto (“Contract Commercials”), are applicable to you (“You” or “Hotel Owner”) and your employees’ and agents’ use of services offered by CheckIn. (“CheckIn”). (Online T&C, Contract Commercials together with schedules, addendums and exhibits collectively defined as this “Agreement”). (CheckIn and You together, the “Parties”). The Agreement creates legally binding obligations, and You should review it carefully before using any of the Services. If You are using the Services on behalf of a company or other entity, you represent and warrant that You are authorized to bind such entity to the provisions herein. CheckIn may amend the Online T&C from time to time.
YOU ACCEPT AND AGREE TO THESE ONLINE T&C BY ACCESSING THE CHECKIN OPERATING SYSTEM (“CHECKIN OS”) OR USING THE SERVICES DESCRIBED BELOW. THESE ONLINE T&C REPLACE ANY PREVIOUS AGREEMENTS OR TERMS OF USE BETWEEN YOU AND CHECKIN. By agreeing to these Online T&C, you also agree to abide by the terms of CheckIn’s Privacy Policy (www.oyorooms.com/us/privacy-policy) which are incorporated into these Online T&C and are subject to change from time to time.
1. DEFINITIONS & INTERPRETATIONS
1.1 INTERPRETATION
Save where set out expressly below, all terms shall have the meanings as that contained in the Agreement to which these Terms and Conditions are annexed and form part. Provided that, in the event of inconsistency between the commercial terms of this Online Terms and Conditions and the Services Agreement executed between CheckIn and the Hotel Owner, the commercial terms of the Services Agreement shall prevail.
In this Agreement, unless the context otherwise requires, the recitals shall be construed as part of this Agreement; the words importing singular shall include the plural and vice versa, and the words denoting natural persons shall, where the context admits, include partnerships, firms, companies, corporations, associations, organizations or other entities (whether or not having a separate entity); the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”; any reference herein to any “Person” or “person” includes any individual, partnership firm, trust, body corporate, Government, governmental body, authority, agency, unincorporated body of persons or association and shall be construed to include such Person’s permitted successors, transferees and assigns; words importing a particular gender shall include all genders.
This Terms & Conditions and Agreement shall:
(a) be binding upon and inure to the benefit of all successors and assigns of the Hotel Owner (including any transferee of all or a substantial part of the business/Hotel/assets of the Hotel/group company of the Hotel and/or any direct or indirect successor by assignment, novation or by merger or consolidation or otherwise by operation of law); and (b) be binding on and shall inure to the benefit of the heirs, personal representatives, executors and administrators of the Directors/Independent Directors.
In the event of any conflict or inconsistencies between the main body of this Agreement and any Annexure, Schedule, or the Channel Partner Terms and Conditions, this Agreement shall prevail.
1.2 DEFINITIONS
“Affiliate” means any person or entity which is under the Control of, in Control of or under the common Control with any person or entity.
“Agreed Purposes” means the purpose of CheckIn complying with its obligations in relation to this Agreement.
“Agreement” means this agreement, the Services Agreement entered between CheckIn and the Hotel Owner along with the Annexures referred to herein and/or including any subsequent addendums and/or amendments to the Agreement.
“Applicable Laws” means all laws, statutes, regulations, ordinances, rules, judgments, rules of law, orders, decrees, approvals, directives, guidelines, planning requirements, policies, and laws or other governmental restrictions or any similar form of decision, or determination by, or any interpretation or administration of any of the foregoing by, any statutory or regulatory authority or local council whether in effect as of the date of this Agreement or thereafter and in each case as amended and any other requirements applicable to the Parties and their obligations under this Agreement.
“Branding Works/Costs” The Parties have agreed that they shall, at their sole discretion, spend on branding of the interior and exterior of the Hotel (the “Branding Works”) up to the amounts agreed between the Parties (the “Investment Sum”), if required. The Investment Sum, if paid by CheckIn, shall be recovered from the Hotel Owner by CheckIn in equal monthly instalments from the Effective Date. The Branding Works shall be carried out in accordance with Clause 2.2 of these terms.
“Control” in relation to a body corporate, means the power of a person (or persons) having significant control over the company or over the affairs of the body corporate, and such affairs are conducted in accordance with the wishes of that person (or persons):
(a) by means of the holding of shares, or the possession of voting power, in or in relation to, that or any other body corporate; or
(b) by virtue of any powers conferred by the constitutional or corporate documents, or any other document, regulating that or any other body corporate;
and the terms “controlling” and “controlled” shall be correspondingly construed; “Change of Control” means when a person who controls any body corporate ceases to do so or if another person acquires Control of it;
“Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures” have the meanings as set out in the UK Data Protection Legislation in force at the time;
“Condition” means the following conditions, which shall be followed by the Hotel Owner at all times during the currency of the Agreement:
a. Evidence legal title to the Hotel at all times;
b. Shall keep the Hotel open at all times;
c. Shall ensure that all room bookings are logged in the CheckIn booking system;
d. Shall comply with the obligations contained in Clause 3;
e. Completion of the items detailed in Annexure 2 within sixty (60) days of the Soft Launch Date;
f. Shall comply with the warranties contained in Clause 9 at all times;
g. Shall not assign its rights or obligations under this Agreement without the prior written consent of CheckIn (which shall not unreasonably be withheld or delayed) to any third party including but not limited to any and all immediate family members, subsidiaries, sister concerns and/or any direct or indirect related party, etc.;
h. Must apply the Hotel Investment Sum for the express purpose of the Transformation Works to be carried out at the Hotel and/or for the purpose for which it is granted;
i. Shall at all times, if applicable, maintain the credit limit and provide guarantee if required in the event of lower credit rating (in CheckIn’s ultimate discretion);
j. Shall at all times record the Walk-in Bookings in the CheckIn system;
k. To maintain the price parity between bookings made online through Distribution Channels and the Walk-in Bookings;
l. Shall not cease the business during the Term of the Agreement and/or threaten to cease the business during the Term of the Agreement;
m. Shall not assign, sell or otherwise transfer, or threaten to sell, assign or transfer, the rights of the Hotel to any third party including but not limited to any and all immediate family members, subsidiaries, sister concerns and/or any direct or indirect related party, etc., without obtaining prior written consent of CheckIn.
“Data Protection Legislation” means the UK Data Protection Legislation and any other European Union legislation relating to personal data, and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications);
“Direct Guest Charges” shall mean any amounts charged by CheckIn (at its own discretion) directly to guests for bookings made via Distribution Channels and any direct bookings via the CheckIn website, and/or any costs towards guest experience which do not form part of the Gross Room Revenue. If collected by the Hotel Owner, the same shall be paid to CheckIn. The Booking Fee shall be over and above any commercial arrangement between the Parties and shall be directly charged to the guests while booking on Distribution Channels.
“Effective Date” means the date of signing of this Agreement.
“Force Majeure Event” means any event beyond the reasonable control of either Party including, without limitation, strikes, lockouts, labour disputes, war, riot, civil commotion, accident, breakdown of plant or machinery, fire, flood, pandemic, epidemic, and storm.
“Guaranteed Amounts”
The amounts to an extent of the commissions and/or Referral Fees to be paid by the Hotel Owner to CheckIn in lieu of introducing and/or sourcing a booking for the Hotel through Client(s). The Guaranteed Amounts shall be over and above the Service Fee and/or any other fees charged under the Agreement.
“Gross Room Revenue”
Means all revenues, receipts and income (including VAT) derived by the Hotel Owner from the rental, use, and occupancy of guest rooms sold through the CheckIn platform and other channels (including but not limited to OTAs), and includes:
i. revenue from any meal plans; and/or
ii. incidental room revenue for charges including, but not limited to, no-shows, early check-in, and early check-outs;
but does not include:
i. any ancillary revenue from other hotel facilities, restaurants, outlets, or conference facilities (such ancillary revenue shall be the sole income of the Hotel Owner);
ii. any cancellation charges on walk-in bookings (which shall remain the sole income of the Hotel Owner);
iii. any cancellation charges (which shall remain the sole income of CheckIn) on OTA bookings and direct bookings via the CheckIn website;
iv. Direct Guest Charges.
“Go Live Date”
Means the date on which CheckIn, in accordance with Clause 4.1, confirms that the Hotel can “go live”.
“Handover of Distribution Channels”
Means where the Hotel Owner has ensured that the Hotel and associated details have been transferred on all Distribution Channels to CheckIn, and all sums owed in relation to those channels prior to the signing of the Agreement have been settled and paid in full by the Hotel Owner.
“Intellectual Property”
Means trademarks, service marks, rights in trade names, business names, product names, logos or get-up, patents, rights in inventions (whether or not patentable), registered and unregistered design rights, copyrights, database rights, rights in data, rights in domain names and URLs, and all other similar rights in any part of the world (including in Know-how), including where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations.
“Investment Sum”
Shall mean a one-time recoverable amount paid by CheckIn to the Hotel Owner for Transformation Works and/or any renovation, repairs, or any other changes, as mutually agreed between the Parties, to be made at the Hotel prior to starting the operations.
“Know-how”
Means confidential or proprietary, industrial or commercial information and techniques, in any form, including drawings, formulae, instruction and training manuals, market forecasts, and lists and particulars of customers and suppliers.
“Meal Plans & Laundry”
The Hotel Owner shall provide the Sellable Rooms, exclusive of breakfast. Provided that, a meal plan may be required by CheckIn in relation to a Group Booking sourced for the Hotel.
The Parties agree that CheckIn shall have the right to charge monies on the Gross Room Revenue for providing/arranging laundry services. These charges shall be over and above the Fees charged by CheckIn.
In the event of any ancillary services such as breakfast and/or other additional requirements under this Agreement or any Group Booking Agreement, the same shall be arranged and charged by CheckIn over and above the Fees.
“CheckIn Channel Fee”
The Hotel Owner authorizes CheckIn to sell the Hotel through CheckIn channels, which shall include but not be limited to the CheckIn App, CheckIn website, CheckIn mobile website, CheckIn call centre, and any other channel, listings, and/or meta search handles that CheckIn may choose to open (“CheckIn Channel”) to improve Hotel occupancy. In return for this service, the Hotel Owner shall, in addition to the Service Fee, also pay a CheckIn Channel Fee plus VAT on the Gross Room Revenue on all bookings made through any CheckIn Channel, or as modified/increased by CheckIn from time to time.
For the avoidance of doubt, any bookings through the Hotel website which are directed to a CheckIn Channel shall not be subject to a CheckIn Channel Fee.
Provided that, Channel Fee shall be applicable on all revenue generated under the Group Booking Agreement (including that generated from ancillary services, meal plans, etc.). In addition, the Hotel Owner shall also be charged 2.20% (exclusive of VAT) of gross revenue on all Group Bookings (“Additional MM Fee”). This amount is towards capital charges, payment gateway costs, and other administration costs incurred by CheckIn to facilitate the Group Bookings.
“CheckIn Standards”
Means the brand standards, transformation standards, health and safety standards, operating practices, and standards of service of CheckIn, as set out in Annexure 1, as updated from time to time.
“Party” or “Parties”
Means collectively CheckIn and the Hotel Owner, or individually as the context may require.
“Performance Fee”
Means the additional monthly fee payable by the Hotel Owner to CheckIn, being the amount by which the total Gross Room Revenue exceeds the threshold for the Performance Fee as set out in the monthly distribution table in the Particulars.
“Performance Fee Monthly Distribution”
Shall, if applicable, have the meaning ascribed to it in the Agreement.
“Payment Gateway Charges”
Shall mean the amounts charged by CheckIn in lieu of facilitating payments made by customers/guests via payment gateways and/or Distribution Channels and/or any other channels including but not limited to Online Travel Agents, Offline agents, corporates, travel management companies, GDS, etc., used by CheckIn from time to time, and shall be calculated as a percentage of the total amount paid by the customer/guest and shall vary according to the type of payment method used. These charges shall apply to both online and offline revenue sources.
“Permitted Recipients”
Means the parties to this Agreement, the employees of each Party, and any third parties engaged to perform obligations in connection with this Agreement.
“Referral”
Means the referral or sourcing or introduction by CheckIn (and/or its team) to the Hotel Owner of a Client requiring and/or showing interest in placing group bookings / bulk bookings / asylum bookings or any other direct bookings at the Hotel.
“Referral Services”
Shall mean the services provided by CheckIn with respect to the Referrals, including but not limited to introducing the Hotel to third parties for bookings, coordinating with third parties, and assisting in making the Hotel compliant with booking/Client requirements. For clarification, the definition of Services shall include Referral Services.
“Reconciliation Date”
Shall be the date as communicated by CheckIn each month.
“Reconciliation”
Shall mean the payments made by CheckIn to the Hotel Owner from time to time, based on the revenue sourced/generated by CheckIn for the Hotel. The Service Fees along with all additional charges, as mutually agreed between the Parties from time to time, shall be reconciled by CheckIn on a monthly basis. The cost of distribution, including but not limited to OTA commissions and all other associated costs, will be charged to the Hotel Owner as part of the payout cycle.
“Service Fees”
Means the share of the Gross Room Revenue charged by CheckIn for the Services, as more particularly specified in the Particulars and Clause 5.
“Services” means:
a) proprietary technology products, including but not limited to a hotel management system (which must be adopted by the Hotel Owner);
b) revenue management services under which CheckIn will assume full responsibility for all hotel demand channels, managing inventory (100% inventory control by CheckIn), pricing control and restrictions;
c) customer management services; and
d) other services as may be provided in accordance with the CheckIn Standards, as may be amended from time to time.
“Shared Personal Data”
Means the personal data to be shared between the Parties for the purposes of this Agreement, as set out at Clause 7.
“Soft Launch Date”
Means the date on which the Handover of Distribution Channels has occurred and CheckIn provides its proprietary hotel management system to the Hotel Owner.
“Terms and Conditions” or “Online T&C”
Means the CheckIn terms and conditions as provided herein and to be read with the Agreement.
“Technology”
From the Soft Launch Date, CheckIn will provide its proprietary hotel management system to the Hotel Owner, and the Hotel Owner will ensure that the system is fully adopted by the Hotel.
“Transformation Works”
Means the works of refurbishment and redecoration to be undertaken by the Hotel Owner that may be required to ensure that the Hotel meets the CheckIn Standards as set out in Annexure 1, and any health and safety works required for compliance with Applicable Laws.
“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.
“VAT”
Means Value Added Tax and any similar tax substituted for it or levied in addition to it, including any subsequent amendments.
“Walk-In Bookings”
Means bookings where the guest approaches the Hotel Owner directly (excluding bookings through the Hotel website).
2. CHECKIN OBLIGATIONS
2.1 CheckIn shall render the Services with reasonable care and skill in accordance with this Agreement.
2.2 CheckIn shall permit the Hotel Owner to use its Intellectual Property and Know-how in connection with and to the extent required for the operation of the Hotel in accordance with its instructions and requirements.
2.3 CheckIn shall ensure that the Hotel Owner is informed of any material problem, which may affect the provision of the Services as soon as CheckIn becomes aware of any such problem. If any such material problem shall occur, CheckIn shall use all reasonable endeavours to minimise any material disruption to the provision of the Services.
3. TRANSFORMATION WORKS
3.1 Within sixty (60) days of the Soft Launch Date the Hotel Owner shall (at its own cost) procure that all remedial works (as mutually discussed with CheckIn) are undertaken to ensure that the Transformation Works, as more particularly provided in Annexure-1, are completed to CheckIn’s satisfaction.
3.2 BRANDING WORKS
3.2.1 In the event the Parties mutually agree and decide that the Branding Works, as more particularly provided in Annexure-1, are required at the Hotel, the Hotel Owner will ensure that rooms and such parts of the Hotel are made available so that the Branding Works can be completed as quickly as possible by CheckIn.
3.2.2 CheckIn will have complete discretion in relation to the internal Branding Works, but will consider any reasonable suggestions made by the Hotel Owner.
3.2.3 In relation to external Branding Works, the Hotel Owner will have five (5) working days from receipt of designs from CheckIn to approve such designs (such approval not to be unreasonably withheld or delayed). In the event that no response is obtained within such period, the external Branding Works designs will be deemed accepted by the Hotel Owner.
3.2.4 CheckIn may amend the Branding Works at its discretion.
3.3 CONDITIONS PRECEDENT TO EFFECTIVE DATE OR THE GO LIVE DATE (AS INDICATED)
3.3.1 In order for the Hotel to be listed on the Distribution Channels, on or before the Effective Date, the Hotel Owner:
a. and CheckIn shall execute Online Travel Agent Form, as set out in the Agreement.
b. shall confirm that there are no outstanding OTA fees in relation to the Hotel. Any delay in payment of the OTA fees by the Hotel Owner will result in the Hotel not being listed on the Distribution Channels, until the OTA fees are settled in full.
c. shall confirm that the OTA credentials of the Hotel shall be managed by CheckIn. In the event the Hotel is not able to go live on OTAs with CheckIn listing due to any previous payment pending with the Hotel partner, the Hotel Owner shall clear all such payments, failing which CheckIn may make the respective payment on behalf of the Owner and the same would be adjusted in the reconciliation of the successive month. Provided that, in the event Hotel Owner requests CheckIn to not make the payment and himself/herself doesn't make or delays paying the required amount which in turn impacts the date of Hotel going live on those OTAs, in such an event, Hotel Owner shall be deemed to have breached a material term of this Agreement and shall be liable to pay Liquidated Damages in accordance with this Agreement.
d. agrees and undertakes to issue the OTA Form to CheckIn in accordance with this Agreement and hand over all existing OTA credentials on the Effective Date to CheckIn. Any change in username/ID/Password made by the Hotel Owner at a later stage will have to be informed to CheckIn in writing prior to such changes taking effect.
e. agrees and undertakes not to list the Hotel on any new OTA on its own, after the Effective Date, without the prior written consent of CheckIn. The Hotel Owner further agrees that CheckIn shall have the right to facilitate the listing of the Hotel on such OTAs as are selected by CheckIn from time to time and that the Hotel Owner shall not object to such listings for any reason whatsoever.
f. through the OTA Form, acknowledges and confirms that the Hotel Owner has no objection in permitting CheckIn to initiate new listing under CheckIn's name and discontinuing the old listing upon the successful launch of the new listing with the flow of rates and inventory.
3.3.2 In the event of Transformation Work and Branding Works, as provided in Annexure 1, are being undertaken by the Hotel Owner, CheckIn, shall on its completion, will inspect the Hotel and confirm whether it is satisfied with the Hotel and the Go Live Date will occur.
3.3.3 Notwithstanding any of the above, if the Hotel Owner fails to comply with Clause 3, CheckIn at its absolute discretion may elect to undertake the necessary works in order to achieve the Go Live Date and such costs will be taken out of any payments due from CheckIn to the Hotel Owner or charged to the Hotel Owner as a separate fee on terms to be specified by CheckIn. Failure to complete the requisite Branding Work (if applicable) and Transformation Works shall in addition constitute grounds for termination with cause.
3.3.4 Before the Go Live Date, the Hotel Owner shall:
a. procure and provide to CheckIn satisfactory evidence (in CheckIn’s ultimate discretion) of a United Kingdom bank account in the Hotel Owner’s name; and b. Upon request, procure and provide to CheckIn, satisfactory evidence (in CheckIn’s ultimate discretion) of legal title to the Hotel for the duration of the Term o f this Agreement.
3.3.5 For the avoidance of doubt CheckIn shall not be obliged to pay any other monies under this Agreement until the requirements in Clause 3 have been satisfied.
4. HOTEL OWNER OBLIGATIONS/COVENANTS
4.1 The Hotel Owner confirms all the details it has supplied under this Agreement are true and correct.
4.2 The Hotel Owner will at all times comply with the terms of this Agreement, the Terms and Conditions, the CheckIn Standards, all Applicable Laws, statutes, regulations and codes from time to time in force and shall ensure that all relevant health and safety inspections and reports are kept up to date including but not limited to the documents mentioned in Part B of Annexure 1. Provided further that, the Hotel Owner shall ensure that the Hotel shall, at all times have applicable planning/local council’s permission to use the hotel for the intended purpose and that the correct Use Class certificate is also in place for the Hotel. Hotel Owner shall at all times be responsible and liable for any liability arising from the incorrect Use Class certificate or lack of permission.
4.3 The Hotel Owner will at all times comply with the National Minimum Wage Act 1998, the Bribery Act 2010 and the Modern Slavery Act 2015 (as amended or superseded or supplemented from time to time).
4.4 The Hotel Owner agrees to use its skill and care as an experienced hotel owner and operator to manage and operate the business of the Hotel during the Term so as to maximise the Gross Room Revenue that is received at the Hotel and accepts that CheckIn can block the sale of any room which falls below the requirement of this Agreement.
4.5 The Hotel Owner shall pay to CheckIn the Service Fees as set out in Clause 5.1 and the Particulars along with any applicable Performance Fee, Channel Fee, other fees and charges in relation to Self-Check in, guest messaging platforms and other value added services provided by CheckIn from time to time (where applicable). For the avoidance of doubt, the base Gross Revenue and Performance Fee Monthly Distribution (if applicable) shall be adjusted based on the number of available rooms at the Hotel and shall not include rooms which are unavailable due to a Force Majeure Event, renovation or decoration, issues in relation in health & safety or compliance or any other reason by which a room is not available for guest use (including any rooms blocked by CheckIn in accordance with Clause 3.4).
4.6 The Hotel Owner will provide a single point of contact for CheckIn who is responsible for the day-to-day running of the Hotel and the provision of onsite customer support.
4.7 The Hotel Owner shall grant CheckIn and its representatives and employees:
4.7.1 access to the Hotel (including access to all room categories for photoshoots prior to the Soft Launch Date and post the Go Live Date) at any time to ensure compliance with this Agreement via an audit or general inspection;
4.7.2 all of the information for the Hotel’s business on an open book basis (including accounting and trading information in relation to Hotel and health and safety information); and
4.7.3 provide access to their rates on a real time basis.
4.8 The Hotel Owner shall grant CheckIn the exclusive right to market its Hotel and list it on the CheckIn website and platform and shall honour any bookings made through CheckIn. The Hotel Owner shall ensure that all other bookings (whether online or made in person or walk-in bookings) are recorded immediately on the CheckIn systems and otherwise accounted for at the next Reconciliation Date.
4.9 The Hotel Owner shall ensure that the Hotel is transferred on all Distribution Channels and grants CheckIn permission to set up a new OTA handle for the Hotel on any Distribution Channels on which the Hotel is not already listed. Upon termination or expiration of this Agreement and subject to Clause 12 any new OTA handle which CheckIn arranges shall be deleted.
The Hotel Owner shall ensure that Global Distribution System (“GDS”) switch letters are provided to CheckIn in CheckIn’s standard form as soon as reasonably practicable following CheckIn sending the precedent letters to the Hotel Owner, and the Hotel Owner shall use all reasonable endeavours to assist CheckIn with the GDS switching process as CheckIn may require.
4.10 The Hotel Owner will update CheckIn as often as is reasonably practicable as to the availability of rooms in the Hotel.
4.11 In the event that the Hotel is unable to honour any booking the Hotel Owner shall be responsible for finding comparable alternative accommodation at the same price (save where the reason for the issue is connected with a fault of the CheckIn platform). CheckIn shall be entitled to recover from the Hotel Owner any costs incurred by CheckIn in relation to the alternative accommodation in any subsequent reconciliation.
4.12 The Hotel Owner shall effect and maintain throughout the Term with reputable insurers appropriate insurance, including but not limited insurances for the full restoration value of the Hotel, together with public and third party liability insurance, business interruption insurance, professional indemnity insurance and employer's liability insurance. The Hotel Owner shall provide to CheckIn, as soon as reasonably practicable upon request, evidence of the amount of such insurance cover.
4.13 In the event the Hotel Owner takes any steps to divert any revenue or sums due under this Agreement (including but not limited to revenue suppression, diversion of bookings by encouraging guests to cancel or otherwise, soliciting bookings from an agency/person/client introduced by CheckIn and/or manipulating guest bookings), CheckIn shall (in its ultimate discretion) have the right to immediately:
4.13.1 enter an estimated booking value in the system as gross revenue and adjust the same value in the succeeding Reconciliation;
4.13.2 modify or suspend the revenue payable to the Hotel Owner basis Reconciliation and/or increase Service Fee or Lock-In Period; or
4.13.3 terminate this Agreement without any cost or liability.
4.14 The following non-exhaustive list of events shall lead to a presumption of revenue suppression and guest diversion, unless an explanation is provided by the Hotel Owner to CheckIn’s satisfaction:
4.14.1 an unjustified and substantial drop in the revenue percentage from Walk-In Bookings as compared to the past revenue trend of the Hotel;
4.14.2 unusual and suspicious cancellation of online guest booking immediately prior to the check-in time;
4.14.3 any booking made through the CheckIn Platform or any other OTA which is without any justifiable reason converted into Walk-In Booking;
4.14.4 any finding by CheckIn leading it to believe that the Hotel Owner has committed fraud or a breach in relation to its obligation under this Agreement.
4.14.5 any direct or indirect actions that result in the solicitation of clients/agency introduced by CheckIn.
4.15 The Hotel Owner shall ensure that the migration data provided by him to CheckIn is complete and accurate in all aspects. No modifications will be entertained to the bookings after the migration to the CheckIn operating system is complete. The Hotel Owner should cross check the booking data before sharing the same for being uploaded to the CheckIn operating system. Any liabilities or costs arising from the incorrect migration data will be borne by the Hotel Owner.
4.16 The Hotel Owner shall ensure that the Hotel Owner provides the same or better service from the date of the signing of the Agreement until the expiry of the Term of the Agreement.
4.17 The Hotel Owner will upon reasonable request from CheckIn provide a suitable guarantee (in CheckIn’s absolute discretion) in the event its credit rating is not deemed to be sufficient to accord with its obligations under this Agreement.
4.18 The Hotel Owner shall ensure that it (and any staff employed) act in professional manner at all times and that it does not discriminate any guests or bookers on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation (or any other protected characteristics under the Equality Act 2010 or any other relevant law (as may be amended from time to time)).
4.19 The Hotel Owner shall ensure that a reception is in place at the Hotel at all times to enable a smooth and hassle-free guest experience. Further, the Hotel Owner is to ensure there is no restriction on check-in and check-out timings at the Hotel in accordance with CheckIn’s policy.
4.20 The Hotel Owner shall participate in and honour the terms of each of CheckIn’s promotional, advertising, loyalty, satisfaction and/or other guest programs (including any room discounts, rewards programs, voucher programs, pet-friendly policies, billing programs, corporate memberships, frequent traveller programs, photographic or virtual tour programs or gift card programs, (as may be amended or superseded from time to time)) that are applicable to the Hotel (the “Guest Programs”). The Hotel Owner must comply with all standards and requirements of any Guest Program at its own cost and expense.
The Hotel Owner shall be solely responsible for payment of any chargebacks.
The Hotel Owner acknowledges and undertakes that CheckIn is entitled to charge Direct Guest Charges, which will not form part of the Revenue, and if collected by the Hotel Owner from the guests the same shall be paid to CheckIn.
The Hotel Owner irrevocably and unconditionally agrees and undertakes that in the event of any Guest Programs or any other activities ran by CheckIn for maximising the revenue for the Hotel, CheckIn shall have the right to charge any such monies, at actuals, as required in relation to such activities (“Promotional Charges”) and the Hotel Owner irrevocably and unconditionally agrees that such Promotional Charges are reasonable and represent a genuine pre-estimate of the charges likely to be incurred by CheckIn. Provided that, such Promotional Charges will be reflected in the succeeding Reconciliation statements. Provided further that, any excess Promotional Charges will be refunded to the Hotel Owner and/or any shortfall will be charged/set off, as the case maybe, in the subsequent Reconciliations.
4.25 The Hotel Owner shall at all times be responsible for the compliance of Health and Safety documents and/or any compliance of Applicable Law and/or requirement of compliance by the local council where the Hotel is situated. Any damages, costs, penalty, expenses, monies arising from or in relation to such non-compliance shall be borne solely by the Hotel Owner.
4.26 Save and except, in the event the Hotel and/or rooms are:
i. Under renovation and such renovation will be completed within 15(fifteen) days and is supported by the video and photographic evidence; and/or
ii. not available due to non-compliance of Applicable Laws and/or Health & Safety issues; and/or
iii. closed by the instruction of any statutory or regulatory authority or local council; any blocking of Rooms and/or denial of check-ins for more than 7(seven) days shall be considered as a breach of this Agreement. Provided further, that the Hotel Owner shall be liable to pay such damages to the tune of 5 times of revenue loss and such other costs, expenses that CheckIn may have to suffer for such blocking of rooms including any reputational damage.
4.27 The Hotel Owner agrees and understands that any blocking of Rooms and/or cancellation of bookings (save and except for the reasons provided in 3.28 (i) to (iii)) and/or denial of check-in of the Guests upon arriving which leads to the reputational/brand damage of CheckIn shall make the Hotel Owner liable to pay damages to the tune of 5 times of revenue loss suffered by CheckIn due to such blocking of Rooms/cancellation of bookings. The Hotel Owner hereby acknowledges and undertakes that the liquidated damages set forth herein above are in addition to any other rights and/or remedies available to CheckIn under the Agreement, law and/or equity and are intended to be a genuine and reasonable estimate of the damages suffered by CheckIn and accordingly the same shall not be considered a penalty.
4.28 The Hotel Owner must develop and implement a Health and Safety policy as required by the Health and Safety at Work Act, 1974 and any other applicable policies under law (“H&S Policy”). The H&S Policy must define how the Hotel Owner manages the health and safety hazards and risks associated with the Hotel, guests, activities conducted at the Hotel, and any impact it may have on CheckIn or its brand. The Hotel Owner, shall at all times, be solely responsible for the implementation of H&S Policy and shall ensure to keep updating the same as per the applicable laws.
4.29 CheckIn reserves the right to audit and request copies of the applicable policies at any time. All communication regarding H&S Policy and/or any other policy as may be mandated by law to be attached as Annexure with Commercial Sheet. In the event, the Hotel Owner fails to implement or provide CheckIn with the Health and Safety Policy and/or any other policy as may be mandated by law. Provided that, in the event of any failure/breach to implement the policy is in relation to the Health and Safety of Guests or of Hotel Staff or Hotel, the same shall be complied/cured immediately. In the event of failure/breach of policies other than H&S Policy, the same shall be cured within 7 (seven) days unless mandated by law. CheckIn reserves the right to charge a penalty equivalent to the Service Charge on the average gross revenue and/or the amounts equivalent to the penalty charged by government and/or any local authority/agency etc. due to such failure/breach of the Hotel Owner.
The Hotel Owner shall be obliged to inform CheckIn at least ten (10) days in advance in the event the number of rooms detailed by the Hotel Owner for his own use and/or the number of non-sellable/non-serviceable rooms at the Hotel (“Non Operational Rooms”), exceeds 5 room number. The Hotel Owner shall neither use the Non-Operational Rooms for any commercial purpose whatsoever nor list such Rooms with any third party including but not limited to OTA(s).
4.31 Notwithstanding the foregoing, the Hotel Owner, shall at all times, ensure the availability of at least 90% of the Rooms are available and operational for booking under the terms of this Agreement. In the event (i) the availability of sellable rooms falls below 90%; or (ii) the Blockage or closure of rooms without any justifiable reason; or (iii) there is enough evidence that suggest that there is revenue suppression/guest diversion as a result of the Non-Operational Rooms:
a. Irrespective of the Lock-in Period stated and agreed in this Agreement, the Lock-In Period of this Agreement shall automatically extend by six (6) months i.e. existing Lock-In Period plus additional six (6) months to be added in the Lock-In Period;
b. In the event Hotel Owner fails to stabilize the availability of rooms to 90% in the six (6) months period or fails to release all the rooms or fails to cure the breach of revenue suppression and the availability of Rooms falls further below 90% , the Lock-in shall be extended by another six (6 ) months.
Provided that, in the event, availability of rooms is less than 90% during the peak months i.e. between June to September, the Lock-In shall extend by one (1) year. In the alternative, CheckIn shall have the absolute right to claim Liquidated Damages for the loss of profits on account of the Non-Operational Rooms calculated in terms of Clause 7 below. Provided further that, all the decisions mentioned hereinabove shall be at CheckIn’s sole discretion.
4A. ORGANISATION OF THE PARTIES
a. Without prejudice to specific requirements under the Agreement, CheckIn shall organise and operate its business in an autonomous manner and render the Services hereunder as an independent contractor and the Hotel Owner shall not hold itself out to be an agent, employee or partner of CheckIn.
b. Subject to the provisions of the Agreement, the Hotel Owner shall, notwithstanding any branding of the Hotel under the name “CheckIn”, continue to be responsible for all actions relating to the ownership and operation of the Hotel and shall be responsible for all operating costs, including the remuneration, benefits, tax and social security costs of the Hotel Owner’s personnel, employees and staff, all consumables, utilities, taxes and costs of repair and maintenance of the Hotel, without any claim for reimbursement on CheckIn.
c. Notwithstanding any other provision of the Agreement the Hotel Owner’s personnel and staff (including its directors, officers, employees, contractors and agents) and any other person employed or engaged at or in relation to the Hotel shall never and under no circumstances be or become employees of CheckIn, its agents or suppliers, whether during the term of the Agreement or on its expiration or termination. The Hotel Owner represents and undertakes that it has organised and shall organise its operations in such a manner so as to avoid any such person being or becoming so employed.
d. The Hotel Owner shall at all times be responsible for any claim, costs or damages arising in relation to any personnel and staff (including its directors, officers, employees, contractors and agents) of the Hotel Owner. CheckIn shall at no time be liable for any such claim, costs or damages.
e. Nothing herein contained shall be deemed to create an agency, joint venture, amalgamation, partnership or similar relationship between the Hotel Owner and CheckIn. Notwithstanding any of the provisions of this Agreement, the Hotel Owner shall not, at any time enter into, incur, or hold itself out to third parties as having authority to enter into or incur, on behalf of CheckIn, any commitment, expense, or liability whatsoever, and all contracts, expenses and liabilities undertaken or incurred by the Hotel Owner in connection with or relating to such shall be undertaken, incurred or paid exclusively by the Hotel Owner, and not as an agent or representative of CheckIn.
f. It is agreed and understood that, as between CheckIn and the Hotel Owner, the legal relationship is strictly on a principal to principal basis. Nothing is deemed to constitute or imply any other legal relationship such as principal-agent, master-servant or otherwise. It is expressly agreed that there shall be no principal-agent, master-servant or any other relationship between CheckIn and the Hotel Owner under this Agreement and no representation to any such effect would be made by the Hotel Owner to anyone. The Hotel Owner shall indemnify CheckIn against any claims, expenses, liabilities and losses and for any third party claims regarding and / or arising under or in connection with the relationship and / or misrepresentation thereby by the Hotel Owner.
g. The Hotel Owner irrevocably and unconditionally agrees and undertakes that CheckIn is a mere service provider and is not responsible or involved in the day to day operations of the Hotel.
5. INTELLECTUAL PROPERTY
5.1 LICENCE TO INTELLECTUAL PROPERTY
5.1.1 Each Party shall make available to the other Party and hereby grants the other Party a royalty-free and non-exclusive licence to use any of its Intellectual Property in existence at the date of the Agreement, or that are created or acquired by it during the Term (which, in the case of CheckIn, shall include the CheckIn Marks), to the extent necessary and for the sole purpose of: (i) CheckIn providing the Services; or (ii) the Hotel Owner (or its nominee or assignee) benefitting from the Services.
5.1.2 The licences granted in this Clause 5.1.1 shall include the right to grant sub-licences and shall be freely assignable by the other Party subject to prior written consent by the other Party in accordance with the Notice provisions at Clause 13.
5.1.3 The Hotel Owner authorises CheckIn to take and use photographs of the Hotel. Such photographs shall remain CheckIn’s property at all times.
5.1.4 CheckIn shall notify the Hotel Owner of the intended time and date of the photoshoot, and the Hotel Owner shall ensure that the Hotel is ready for a photoshoot. CheckIn may elect to carry out additional photoshoots (in its absolute discretion). In the event that CheckIn elects to carry out additional photoshoots as a result of the Hotel Owner not preparing the Hotel to acceptable standard (in CheckIn’s absolute discretion), CheckIn may deduct the cost of the photoshoot in full from the Hotel Owner's monthly reconciliation.
5.1.5 CheckIn shall grant the Hotel Owner a royalty-free and non-exclusive licence to use the photographs for the duration of the Term for the sole purpose of benefitting from the Services. For the avoidance of doubt, the Hotel Owner shall have no right or entitlement to use the photographs after the expiration or termination of the Agreement.
6. CONFIDENTIALITY
6.1 Except as referred to in Clause 6.2, each Party shall treat as strictly confidential all information received or obtained as a result of entering into or performing the Agreement which relates to the subject matter of the Agreement, to the other Party to the Agreement or to the negotiations relating to the Agreement.
6.2 Any Party may disclose information which would otherwise be confidential if and to the extent:
6.2.1 it is required to do so by law or any securities exchange or regulatory or governmental body to which it is subject wherever situated and it has, so far as reasonably practicable, consulted with the other Party and given it an opportunity to oppose the disclosure or otherwise agree the timing of such disclosure;
6.2.2 it considers it necessary to disclose the information to its professional advisors, auditors and bankers provided that it does so on terms that such professional advisers, auditors and bankers undertake to comply with the provisions of Clause 6.1 in respect of such information as if it were a party to such agreement;
6.2.3 the information has come into the public domain through no fault of that Party; or
6.2.4 each Party to whom it relates has given its consent in writing.
6.3 In the event of breach or threatened breach of the provisions of this Clause 6 (Confidential Information) by the Hotel Owner, such event of breach or threatened breach shall be considered as a breach of this Agreement and the Hotel Owner shall be liable to pay such amounts in damages as suffered by CheckIn for such breach or threatened breach of Confidential Information.
6.4 The rights and obligations under this Clause 6 shall continue in force in all respects after the termination of the Agreement.
7. DATA PROTECTION
7.1 This Clause 7 sets out the framework for the sharing of personal data between the parties as controllers.
7.2 Hotel Owner agrees that it 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 Hotel Owner shall, if not remedied within thirty (30) days of written notice from CheckIn, give grounds to the other party to terminate this Agreement with immediate effect.
7.3 Hotel Owner shall:
(...clauses unchanged...)
7.4 CheckIn’s privacy policy can be referred on the website link https://www.oyorooms.com/gb/privacy-policy.
8. FEES, RECONCILIATION AND COSTS
FEES
8.1.1 In consideration of the delivery of the Services, CheckIn shall be entitled to the Service Fees and other fees on the Gross Room Revenue as specified in the Particulars of this Agreement, and corresponding CheckIn Terms and Conditions.
8.1.2 CheckIn shall carry out a reconciliation of the Gross Room Revenue collected by CheckIn on its platform or by the Hotel Owner directly to calculate the Service Fees and other fees payable to CheckIn by the Hotel Owner. The reconciliation shall take place periodically (each a “Reconciliation Date”).
8.1.3 The reconciliation reports shall be shared with the Hotel Owner on a monthly basis. If the Hotel Owner objects to the calculations made by CheckIn on a Reconciliation Date it must notify CheckIn of its objections within fourteen (14) days of receiving the reconciliation report failing which the objections shall not be addressed and the reconciliation will be considered as fully accepted by the Hotel Owner (with time being of the essence). Notwithstanding the foregoing, in the event any error is discovered in calculation of the Gross Room Revenue by CheckIn, the Hotel Owner shall refund all such amounts payable to CheckIn immediately upon such discovery thereof without additional cost to or further demand by CheckIn, failing which CheckIn shall be entitled to charge interest at the rate of 4% (four percent) above the base rate for the Bank of England at the relevant time on all outstanding amounts from the date the payment obligation gets triggered under this Agreement till the date of actual payment.
8.1.4 CheckIn shall have the right, after giving 24 (twenty four) hours’ notice, to audit the financial records in relation to room revenue of the Hotel. In the event any discrepancies are identified during the audit of the financial records, the Hotel Owner shall be liable to repay to CheckIn any further sums due by way of the Service Fees together with interest at the rate of 4% (four percent) above the base rate for the Bank of England at the relevant time on all outstanding amounts from the date the payment obligation gets triggered under this Agreement till the date of actual payment. Further, if any material discrepancies are found in the reconciliation of Walk-In Bookings, the Hotel Owner shall immediately be liable to pay to CheckIn, the applicable Service Fee on such understated amount. Further, in such an event, CheckIn shall have the right to terminate the Agreement without any costs and/or liabilities and the consequences of termination as set out in the CheckIn Terms and Conditions shall be applicable. Upon discovery of such a material breach, CheckIn may in its sole discretion choose to adopt the average Walk-In Booking occupancy rate for the Hotel or the cluster that the Hotel is part of (in CheckIn’s sole discretion).
8.1.5 In the event there is a delay beyond 30 (thirty) days in making any payments to CheckIn by the Hotel Owner, CheckIn shall provide a cure period of 15 (fifteen) days to rectify such breach. In the event such payment are not made in accordance with the timelines provided hereinabove, CheckIn shall have the right to terminate the Agreement and the consequences of termination as set out in Clause 12 of the CheckIn Terms and Conditions shall be applicable.
8.1.6 Except where the Agreement provides otherwise, each Party shall pay its own costs relating to the negotiation, preparation, execution and implementation by it of the Agreement and of each document referred to in it.
9. REPRESENTATIONS & WARRANTIES
9.1 The Hotel Owner irrevocably and unconditionally represents, warrants and undertakes to CheckIn that:
9.1.1 the information given to CheckIn prior to the date of the Agreement in relation to the Gross Room Revenues and other trading history of the Hotel is true and accurate in all material respects;
9.1.2 for the duration of the Term of the Agreement it has freehold or leasehold title to the Hotel and is in compliance with all requirements to operate the Hotel, including but not limited to the following: consents, permits, licences and planning permission;
9.1.3 the Hotel is suitable to be operated as a CheckIn hotel in accordance with the terms of this Agreement;
9.1.4 it is operating its business in compliance with Applicable Law including but not limited to any requirement to be complied by the local councils of the area where Hotel is situated; and
9.1.5 it has authority to provide the warranty in Clause 28 below.
9.1.6 as on the date of the signing of this Agreement, there are no outstanding dues in relation to any taxes, monies, penalty, and fees, charges levied by the Governmental Authority or by any other statutory or regulatory authorities or any local councils.
9.1.7 it shall comply with the terms of Guarantee Covenants and that it issues this irrevocable and unconditional personal guarantee of Director of the Hotel to an extent of Guaranteed Amounts i.e. payment of commissions, referral fees and/or any other charges in relation to the agreement and/or group booking agreement in favour of CheckIn.
9.1.8 it shall not cease the business during the Term of this Agreement or the term of the Group Booking Agreement, whichever is later.
9.1.9 it shall not threaten to cease the business during the Term of this Agreement or the term of the Group Booking Agreement, whichever is later.
9.1.10 it shall not assign, sell or otherwise transfer or threaten to sell, assign or transfer the rights to operate the Hotel to the third party without taking prior written consent of CheckIn (which shall not unreasonably be withheld or delayed).
9.1.11 It shall pay to CheckIn all amounts agreed under this Agreement, including but not limited to Service Fees, CheckIn Channel Fee, Additional MM Fee (as applicable) etc.
9.1.12 that the Hotel Owner has authority to sign this Agreement.
9.2 Each Party warrants to the other that:
9.2.1 it has power and authority to carry on its business, enter into the Agreement and comply with the obligations therein; and
9.2.2 neither the execution or compliance with the Agreement conflicts or causes a breach of terms of any agreement or Applicable Law.
10. INDEMNITY
10.1 The Hotel Owner (“Indemnifying Party”) agrees that it shall indemnify, keep indemnified, defend and hold harmless the other party and its affiliates and their respective officers, directors, agents, employees (“Indemnified Party”) harmless against any and all liabilities, fines, penalties, actions, obligations, losses, judgments, payments made in settlement, suits, proceedings, demands, damages, claims, costs and expenses, of any nature whatsoever, (including from third parties claims and including reasonable attorney’s fees) resulting from or arising out of
(a) any breach of the representations and warranties of the Indemnifying Party;
(b) failure by the Indemnifying Party to perform any of its obligations under this Agreement, in accordance with the provisions of this Agreement (including payment of Liquidated Damages, if any);
(c) wrongful termination of, or abandonment of work under this Agreement;
(d) infringement of any third party Intellectual Property Rights;
(e) any claim from any statutory/regulatory/government authority or agency or any employee, consultant, representative of a Party;
(f) any act, commission or omission, negligence, misrepresentation, fraud, forgery, dishonesty, misconduct or violation of any of the terms and conditions of this Agreement by the Indemnifying Party or its personnel;
(g) any breach of confidentiality under Channel Partners Terms and Condition; and (h) any damages for bodily injury (including death), damage to movable or immovable property of CheckIn or to any guest caused by the action or inaction of the Hotel Owner.
10.2 All debts, obligations and other liabilities incurred by the Indemnifying Party in the performance of its duties and in managing the Hotel will be the sole responsibility of the Indemnifying Party. Indemnified Party will not (except as may be expressly otherwise agreed in the Agreement) be liable for the payment of any such debts, obligations and other liabilities.
10.3 The Indemnifying Party shall co-operate with Indemnified Party in defending any claim/s against Indemnified Party by any local, state or central authority with respect to any levies, taxes, duties, fines, and/or penalties etc. due and payable by the Indemnifying Party, and shall indemnify the Indemnified Party, fully and without limit, against the same.
10.4 The Indemnifying Party recognizes that the indemnities provided under this Agreement shall be in addition to and not in lieu of any other remedy available to Indemnified Party under this Agreement or by law.
11. VAT
11.1 Save as where otherwise indicated in this Agreement, all sums set out in the Agreement or otherwise payable to CheckIn pursuant to the Agreement shall be deemed to be exclusive of any VAT which is or becomes chargeable on the supply or supplies for which such sums (or any part thereof) are the whole or part of the consideration for VAT purposes.
11.2 Where, pursuant to the terms of the Agreement, CheckIn makes a supply to the Hotel Owner (or any other person) (the “Recipient”) for VAT purposes and VAT is or becomes chargeable on such supply for which the Hotel Owner is required to account to the relevant tax authority, the Hotel Owner shall (or, as applicable, shall procure that the relevant other person shall) pay to CheckIn (in addition to and at the same time as any other consideration for such supply) a sum equal to the amount of such VAT and, if required by Applicable Laws, CheckIn shall provide the Recipient with a valid VAT invoice in respect of such supply within all applicable time limits.
12. TERMINATION AND EFFECTS OF TERMINATION
12.1 Subject to this Clause 12, this Agreement shall enter into force on the date of signing of the Agreement by the parties and continue until the expiry of the Term.
12.2 Upon expiry of the Term, this Agreement shall continue on the same terms for a further period as provided under the Auto-Renewal clause in the Agreement.
12.3 MUTUAL BREAK RIGHT
12.3.1 Subject to expiry of the Lock-In Period, the Parties have a right to terminate the Agreement after giving a 30 (thirty) day prior written notice of termination in accordance with the Break Right. Provided that, the notice to terminate can only be issued in the final 30 (thirty) days of Initial Term or the Renewal Term, as the case may be. Post expiry of the time period to issue the notice to terminate, either Party shall have the right to exercise the Break Right after every 12 (twelve) months.
Provided that any notice served by the Hotel Owner in accordance with this Clause 12.3 shall not take any effect and the Agreement shall not terminate in the event:
i. the Hotel Owner owes any sums to CheckIn at the Break Date.
ii. the termination notice is issued during the Lock-In Period.
12.3.2 In the event of occurrence of any of the above, CheckIn shall have all the right to adjust outstanding amounts owed by the Hotel Owner against the subsequent Reconciliation and/or to adjust against any payments to be made by CheckIn to the Hotel Owner. For the sake of clarification, the Break Right can only be exercised post expiry of the Lock-In Period.
12.3.3 Within fourteen (14) days of a valid termination (i.e. post expiry of a Lock-In Period) and in accordance with Clause 12.3, the Parties will pay to the other any monies owed in performance of this Agreement up to the date of termination.
12.3.4 If CheckIn terminates this Agreement pursuant to this Clause 12.3, CheckIn will reconcile basis the commercials agreed between the Parties on a pro-rata basis to the Break Date.
12.3.5 If the Hotel Owner terminates this Agreement pursuant to this Clause 12.3, CheckIn shall not be liable to pay any monies to the Hotel Owner for the duration of the notice period.
12.4 TERMINATION FOR CAUSE
12.4.1 Each Party shall have the right to terminate this Agreement at any time by written notice with immediate effect and without further formality or indemnity of any kind:
i. if a breach of any of the Conditions occurs; or
ii. 15 (fifteen) days after receipt of a notice of default requiring the other Party to remedy a breach under this Agreement, such breach has not been effectively remedied; or
iii. if voluntary or involuntary proceedings under any bankruptcy, insolvency, reorganisation or similar laws are instituted concerning the other Party; or
iv. if the Hotel Owner is in breach of, including but not limited to Clause 3 (Hotel Owner Obligations), Clause 5 (Intellectual Property), Clause 6 (Confidentiality), Clause 7 (Data Protection), Clause 15.1 and Clause 15.2 (“Transfers”) of the CheckIn Terms and Conditions; or
v. if the other Party becomes insolvent or assigns all or substantially all of its assets to a third party.
12.4.2 In the event of occurrence of any of the following events and/or including but not limited to any other events/breaches where the Liquidated Damages is applicable:
A. In the event that CheckIn terminates this Agreement pursuant to this Clause 12.4, in which case the provisions of Clause 12.6 shall apply; and/or
B. A breach of terms, conditions and obligations of this Agreement/Terms and Conditions has occurred; and/or
C. CheckIn has issued a demand notice or a breach notice to the Hotel Owner;
D. there is a breach of non-compete clause and/or breach of assignment/novation clause,
12.4.3 In the event of breach of the Agreement, the Hotel Owner shall be liable to pay CheckIn on demand a sum equal to “Liquidated Damages” which shall be the sum of a, b and c:
a. the lesser of:
(I) the Service Fee on the total projected Gross Room Revenue for the remaining period of the Term until the Break Date (calculated by multiplying the average monthly revenue from the Soft Launch Date by the number of months in the remaining period of the Term until the Break Date) or until the term/duration of the Group Booking Agreement including any extensions/renewals of such group bookings, whichever is later; or (II) 36 (thirty-six) times the Service Fee on the monthly average Gross Room Revenue for the total period that the Hotel has been in operation under the Agreement. If the Hotel has not been operational for 36 (thirty-six) months under the Agreement, 36 (thirty-six) times the Service Fee on the Gross Room Revenue for the month prior to the termination date; and
b. the unamortised portion of the Investment Sum and Branding Works (if applicable) and/or any sum invested/paid by CheckIn as at the date of termination; and
c. 100% of any other sums, costs, losses or damages arising under the Agreement either at the point of termination or in the future in relation to the termination of the Agreement under this clause.
12.4.3 For the avoidance of doubt, the Hotel Owner agrees and undertakes that the Liquidated Damages set forth herein above are in addition to any other rights and/or remedies available to CheckIn under the Agreement, law and/or equity and represent genuine and reasonable estimate as to CheckIn’s loss of future profits arising from the early termination of the Agreement and/or damages suffered by CheckIn and are not a penalty or in lieu of any other losses, damages, legal costs, claims or payments arising under the Agreement, which CheckIn is free to pursue without limitation or restriction.
12.4.4 The Hotel Owner agrees and understands that Clause 12.4.2 shall be enforceable and applicable from the date of the breach until the date all the outstanding amounts/damages have been received by CheckIn or until the end of the Term of the Contract, whichever is higher. The calculation of interest on such Liquidated Damages shall be until the date all the outstanding amounts/damages have been received by CheckIn. For the sake of clarification, termination of the Agreement is not a pre-condition to determine and demand Liquidated Damages from the Hotel Owner.
12.4.5 This Clause 12.4.1 shall be applicable during the currency of the Term of the Agreement or the currency of the Group Booking Agreement, whichever is later.
12.5 TERMINATION WITHOUT CAUSE
12.5.1 In the event if there are no amounts/revenue guarantee / branding sum or Investment Sum provided by CheckIn:
The Hotel Owner shall be entitled to terminate this Agreement at any time by giving CheckIn not less than 30 (thirty) days’ notice in writing:
(a) in the event that the Hotel Owner terminates this Agreement pursuant to Clause 12.5, in order to have the benefit of the right of early termination of the Agreement before the expiration of the Term and not as a penalty or in lieu of any other payment(s) due under the Agreement, the Hotel Owner shall pay to CheckIn:
(I) the Liquidated Damages; and
(II) 100% of any other sums, costs, losses or damages arising under the Agreement either at the point of termination or in the future in relation to the termination of the Agreement under this Clause 12.5.
12.5.2 If a revenue guarantee/branding sum or Hotel Investment is provided by CheckIn:
(i) Either Party shall be entitled to terminate this Agreement at any time by giving the other Party not less than 30 (thirty) days’ notice in writing:
(a) in the event that the Hotel Owner terminates this Agreement pursuant to Clause 12.5, in order to have the benefit of the right of early termination of the Agreement before the expiration of the Term and not as a penalty or in lieu of any other payment(s) due under the Agreement, the Hotel Owner shall pay to CheckIn:
(I) the Liquidated Damages; and
(II) 100% of the unamortised portion of the Investment Sum and the Branding Works (if applicable) or any other sums/costs paid by CheckIn as at the date of termination; and (III) 100% of any other sums, costs, losses or damages arising under the Agreement either at the point of termination or in the future in relation to the termination of the Agreement under this Clause 12.5.
(b) in the event that CheckIn terminates this Agreement pursuant to this Clause 12.5, CheckIn shall have the right to recover any portion of the unrecovered Investment Sum/branding sum or outstanding Service Fees or any other sums/costs paid by CheckIn.
12.6 CONSEQUENCES OF TERMINATION OF THIS AGREEMENT
12.6.1 In the event of expiration or termination of this Agreement for any reason whatsoever, each Party shall return to the other all Confidential Information owned or controlled by the other Party (in whichever form) and the Hotel Owner shall return to CheckIn any digital devices supplied by CheckIn.
12.6.2 Upon termination or expiration of this Agreement for whichever reason, the Hotel Owner shall:
(i) immediately remove all CheckIn branding materials from the building and dispose of these materials as per CheckIn’s direction and at the Hotel Owner’s own cost;
(ii) not hold itself out as being associated with CheckIn and shall cease to trade under the CheckIn brand;
(iii) pay on demand all sums owed to CheckIn in priority before any other of the Hotel Owner’s creditors;
(iv) continue to comply with the Confidentiality obligations at Clause 6 of the CheckIn Terms and Conditions;
(v) if required by CheckIn, honour any advance and existing bookings for the period after termination at the rates and terms when the bookings were made, or to compensate CheckIn for any costs incurred in relation to CheckIn having to relocate the bookings. CheckIn shall be entitled to seek compensation for any damage suffered to the CheckIn brand as a result of the Hotel Owner failing to honour any such reservations.
12.3 MUTUAL BREAK RIGHT
12.3.1 Subject to expiry of the Lock-In Period, the Parties have a right to terminate the Agreement after giving a 30 (thirty) day prior written notice of termination in accordance with the Break Right. Provided that, the notice to terminate can only be issued in the final 30 (thirty) days of the Initial Term or the Renewal Term, as the case may be. Post expiry of the time period to issue the notice to terminate, either Party shall have the right to exercise the Break Right after every 12 (twelve) months.
Provided that any notice served by the Hotel Owner in accordance with this Clause 12.3 shall not take any effect and the Agreement shall not terminate in the event:
i. the Hotel Owner owes any sums to CheckIn at the Break Date.
ii. The termination notice is issued during the Lock-In Period.
12.3.2 In the event of occurrence of any of the above, CheckIn shall have all the right to adjust outstanding amounts owed by the Hotel Owner against the subsequent Reconciliation and/or to adjust against any payments to be made by CheckIn to the Hotel Owner. For the sake of clarification, the Break Right can only be exercised post expiry of the Lock-In Period.
12.3.3 Within fourteen (14) days of a valid termination (i.e. post expiry of a Lock-In Period) and in accordance with Clause 12.3, the Parties will pay to the other any monies owed in performance of this Agreement up to the date of termination.
12.3.4 If CheckIn terminates this Agreement pursuant to this Clause 12.3, CheckIn will reconcile based on the commercials agreed between the Parties on a pro-rata basis to the Break Date.
12.3.5 If the Hotel Owner terminates this Agreement pursuant to this Clause 12.3, CheckIn shall not be liable to pay any monies to the Hotel Owner for the duration of the notice period.
12.4 TERMINATION FOR CAUSE
12.4.1 Each Party shall have the right to terminate this Agreement at any time by written notice with immediate effect and without further formality or indemnity of any kind:
i. if a breach of any of the Conditions occurs; or
ii. 15 (fifteen) days after receipt of a notice of default requiring the other Party to remedy a breach under this Agreement, such breach has not been effectively remedied; or
iii. if voluntary or involuntary proceedings under any bankruptcy, insolvency, reorganisation or similar laws are instituted concerning the other Party; or
iv. if the Hotel Owner is in breach of including but not limited to Clause 3 (Hotel Owner Obligations), Clause 5 (Intellectual Property), Clause 6 (Confidentiality), Clause 7 (Data Protection), Clause 15.1 and Clause 15.2 (“Transfers”) of the CheckIn Terms and Conditions; or
v. if the other Party becomes insolvent or assigns all or substantially all of its assets to a third party.
12.4.2 In the event of occurrence of any of the following events and/or including but not limited to any other events/breaches where the Liquidated Damages is applicable:
A. In the event that CheckIn terminates this Agreement pursuant to this Clause 12.4, in which case the provisions of Clause 12.6 shall apply; and/or
B. A breach of terms, conditions and obligations of this Agreement/Terms and Conditions has occurred; and/or
C. CheckIn has issued a demand notice or a breach notice to the Hotel Owner; D. there is a breach of non-compete clause and/or breach of assignment/novation clause,
12.4.3 In the event of breach of the Agreement, the Hotel Owner shall be liable to pay CheckIn on demand a sum equal to “Liquidated Damages” which shall be the sum of a, b and c:
a. the lesser of: (I) the Service Fee on the total projected Gross Room Revenue for the remaining period of the Term until the Break Date (calculated by multiplying the average monthly revenue from the Soft Launch Date by the number of months in the remaining period of the Term until the Break Date) or until the term/duration of the Group Booking Agreement including any extensions/renewals of such group bookings, whichever is later; or (II) 36 (thirty-six) times the Service Fee on the monthly average Gross Room Revenue for the total period that the Hotel has been in operation under the Agreement. If the Hotel has not been operational for 36 (thirty-six) months under the Agreement, 36 (thirty-six) times the Service Fee on the Gross Room Revenue for the month prior to the termination date; and
b. the unamortised portion of the Investment Sum and Branding Works (if applicable) and/or any sum invested/paid by CheckIn as at the date of termination; and
c. 100% of any other sums, costs, losses or damages arising under the Agreement either at the point of termination or in the future in relation to the termination of the Agreement under this.
12.4.4 For the avoidance of doubt, the Hotel Owner agrees and undertakes that the Liquidated Damages set forth herein above are in addition to any other rights and/or remedies available to CheckIn under the Agreement, law and/or equity and represent genuine and reasonable estimate as to CheckIn’s loss of future profits arising from the early termination of the Agreement and/or damages suffered by CheckIn and are not a penalty.
12.4.5 The Hotel Owner agrees and understands that Clause 12.4.2 shall be enforceable and applicable from the date of the breach until the date all the outstanding amounts/damages have been received by CheckIn or until the end of the Term of the Contract, whichever is later. The calculation of interest on such Liquidated Damages shall be until the date all the outstanding amounts/damages have been received by CheckIn.
12.4.6 This Clause 12.4.1 shall be applicable during the currency of the Term of the Agreement or the currency of the Group Booking Agreement, whichever is later.
12.5 TERMINATION WITHOUT CAUSE
12.5.1 If there is no amounts/revenue guarantee /branding sum or Investment Sum provided by CheckIn:
The Hotel Owner shall be entitled to terminate this Agreement at any time by giving CheckIn not less than 30 (thirty) days’ notice in writing:
(a) in the event that the Hotel Owner terminates this Agreement pursuant to Clause 12.5, in order to have the benefit of the right of early termination of the Agreement before the expiration of the Term, the Hotel Owner shall pay to CheckIn:
(I) the Liquidated Damages; and
(II) 100% of any other sums, costs, losses or damages arising under the Agreement either at the point of termination or in the future in relation to the termination.
12.5.2 If a revenue guarantee/branding sum or Hotel Investment is provided by CheckIn:
(i) Either Party shall be entitled to terminate this Agreement at any time by giving the other Party not less than 30 (thirty) days’ notice in writing:
(a) if the Hotel Owner terminates this Agreement pursuant to Clause 12.5, the Hotel Owner shall pay to CheckIn:
(I) the Liquidated Damages;
(II) 100% of the unamortised portion of the Investment Sum and the Branding Works (if applicable) or any other sums/costs paid by CheckIn as at the date of termination; and (III) 100% of any other sums, costs, losses or damages arising under the Agreement either at the point of termination or in the future.
(b) if CheckIn terminates this Agreement pursuant to this Clause 12.5, CheckIn shall have the right to recover any portion of the unrecovered Investment Sum/branding sum or outstanding Service Fees or any other sums/costs paid by CheckIn.
12.6 CONSEQUENCES OF TERMINATION OF THIS AGREEMENT
12.6.1 Upon expiration or termination of this Agreement for any reason, each Party shall return to the other all Confidential Information, and the Hotel Owner shall return any digital devices supplied by CheckIn.
12.6.2 Upon termination, the Hotel Owner shall:
(i) remove all CheckIn branding materials;
(ii) cease to trade under the CheckIn brand;
(iii) pay on demand all sums owed to CheckIn;
(iv) comply with Confidentiality obligations;
(v) honour advance bookings or compensate CheckIn for relocations;
(vi) be responsible for relocation charges and/or monies owed to any Distribution Channels.
12.6.3 CheckIn may retain OTA Distribution Channel details until all dues are paid.
12.6.4 Termination is without prejudice to accrued rights or ongoing provisions.
12.6.5 CheckIn may charge a Service Fee on bookings made during the Term, even if they occur post-termination.
12.6.6 If the Agreement is terminated for reasons other than Clauses 12.4 or 12.5, the Hotel Owner must repay the Investment Sum and other sums paid by CheckIn.