1.1 This document sets out the terms and conditions on which VisitScotland (VS) provides its products and services. Any Operator that submits an Order to VisitScotland in respect of any products or services agrees to be bound by, and to comply with, the Terms.
1.2 In this document, the following terms have the meanings given to them below:
“Accepted Order” means the Order submitted by or on behalf of the Operator that has been accepted by VS in accordance with section 2.1.1 below;
"Business Marketing Information" means the information that is provided by the Operator to VisitScotland as part of its application form for a Business Web Listing under the section of that form headed "Business Marketing Information";
"Business Web Listing" means any listings of holiday accommodation and other tourism-related businesses belonging to, managed by, or made available, by the Operator and other operators that are published on the visitscotland.com website from time to time;
“Code” means the code of conduct set out in section 3 below;
“Fees” means the fees (if any) payable by the Operator for the Products and Services as specified in the Accepted Order;
“Material” means all text, images, pictures, photographs, documents, graphics and other materials (in whatever form or medium) that are provided by the Operator to VS and/or its agents or representatives under and/or in connection with the Products and Services and/or the Terms for the purposes of marketing the Operator's business, which shall include, without limitation, all Business Marketing Information and any other materials or information that are provided or uploaded by the Operator via and/or for use on any VS Site and/or are provided by the Operator for use in connection with any promotional brochures or other materials produced by or on behalf of VS;
“Operator” means the person, company or other body that submitted the Order to VS;
“Order” means the order submitted to VS by or on behalf of the Operator requesting that VS provide the Products and Services, described in that order, which order may (without limitation) be submitted using an order form that is completed on any VS Site, an order form that is submitted electronically to VS via e-mail, a paper order form that is delivered to VS by post or in person to a VS iCentre, or by such other means (including, for example, by submission of details relating to the Operator by any Web Booking Service Provider or any other of its agents or other service providers and/or by any trade association or other group in which the Operator may participate) as may be approved or permitted by VS from time to time;
“Products and Services” means the products, services including but not limited to Business Web Listings, and/or marketing or promotional activities described in the Accepted Order;
“Terms” means this document (as it may be updated by VS from time to time), together with the Accepted Order and all other documents referred to in this document;
“VS” means VisitScotland, an executive non-departmental government body established under the Development of Tourism Act 1969 and having its principal office at Ocean Point One, 94 Ocean Drive, Edinburgh, EH6 6JH, United Kingdom;
“VSQAS” means any of VS’s quality assurance schemes from time to time;
“VS Sites” means the websites operated by VS at visitscotland.com, visitscotland.org and such other websites and/or mobile applications as may be operated by or on behalf of VS at any time (and shall include, for the avoidance of any doubt, any parts of such sites or applications that are operated by any third party);
“Web Booking Engine” means any application that provides real time availability information about Business Web Listings relating to holiday accommodation and tourism related businesses and permits customers to place bookings directly with the Operator; and
“Web Booking Service Provider” means any provider of a Web Booking Engine.
1.3 VS is committed to promoting and developing the tourism industry for the benefit of all industry stakeholders. The Operator recognises the benefits, both to individual tourism businesses and the industry as a whole, of improving the quality and value offered by every business involved in the industry.
1.4 In pursuit of the aim set out in section 1.3 above, the Code applies to all Operators. In addition, for Operators that participate in a VSQAS or a third party quality assurance scheme that is recognised by VS, the schedule of conditions (or other terms and conditions of membership) applicable to the VSQAS or the relevant third party quality assurance scheme also apply to those Operators.
2 Working with VisitScotland
2.1 Commencement and Performance
2.1.1. The Terms will have effect from the date that VS accepts an Order submitted by or on behalf of the Operator. An Order constitutes an offer by the Operator to purchase or receive the Products and Services from VS in accordance with these Terms, and VS will be deemed to have accepted an Order when it issues a written acceptance or confirmation of the relevant Order, or when VS acts in a manner that is consistent with the fulfilment of that Order (whichever is the earlier). VS reserves the right to refuse any Order or other application for the receipt of products and/or services from VS. An Order shall not be binding on VS unless and until it is accepted by VS in accordance with this section 2.1.1.
2.1.2 VS will provide the Products and Services subject to and in accordance with the Terms and the Accepted Order. For the avoidance of any doubt, (i) VS shall not be obliged to provide any products and/or services to the Operator pursuant to the Terms other than the Products and Services expressly stated in the relevant Accepted Order and (ii) the Terms apply to the exclusion of any other terms that the Operator seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2.1 The Operator shall pay the Fees (if any) due to VS by the method, and within the timescale, specified by VS in the Accepted Order (or in the confirmation or acceptance issued by VS). VS shall be entitled to specify the required method of payment for an Order at its sole discretion. VS may require payment by credit card or debit card at the time an Order is submitted, or in certain circumstances by electronic payment following receipt of an invoice from VS. If VS agrees to periodic electronic invoicing, it is the Operator’s duty to ensure that its contact and payment details are kept up to date at all times.
2.2.2 If an Operator does not pay the Fees in full within the specified time (which, in the case of payments due following receipt of an invoice from VS, shall be no more than 30 days after the date of VS’s invoice), VS will have no obligation to provide the relevant Products and Services (and/or any other products and services) to the Operator and shall be entitled to cease providing the relevant Products and Services (and any other products or services) with immediate effect and without any liability to the Operator.
2.2.3 Unless VS expressly advises the Operator to the contrary, the Fees are stated exclusive of VAT, which shall be payable by the Operator in addition at the applicable rate.
2.2.4 Subject to section 5.2.1 below, all Fees paid by the Operator are non-refundable and if the Operator wishes to cancel all or any part of the Products and Services after the Order has been accepted by VS, VS shall not be obliged to provide any refund of the Fees to the Operator. Any refund that VS may (at its sole discretion) elect to provide to the Operator shall be subject to deduction by VS of an appropriate cancellation charge.
2.3 References to Working with VisitScotland
2.3.1 During the relevant period specified by VS (at its sole discretion) in connection with the relevant Products and Services, the Operator may (i) display a sticker, a copy of the Code and any other promotional materials made available by VS in connection with the relevant Products and Services (ii) refer to the fact that it is “Working with VisitScotland” in the Operator’s promotional materials in connection with the relevant Products and Services and (iii) where it is a member of the VSQAS, display a current Quality Assurance Award (where applicable, and in accordance with the VS Quality Assurance Schedule of Conditions). Unless otherwise agreed in writing with VS, the Operator shall not refer to or imply any other association with VS. When VS ceases to provide the relevant Products and Services to the Operator (including, without limitation, pursuant to section 5.2 below), the Operator will immediately stop using any such promotional materials and shall ensure that it complies (without limitation) with the Consumer Protection From Unfair Trading Regulations 2008.
2.3.2 For the avoidance of any doubt, where any Operator (who was previously a member of the VSQAS) ceases to participate in the VSQAS, that Operator is bound (in accordance with the VSQAS Schedule of Conditions) to remove any promotional material (including wall plaques and window stickers and any other promotional material pertaining to their VSQAS quality grading) and also delete any reference to the VSQAS and/or any grading awarded in any advertising or business materials or media (including, without limitation, on the Operators’ website).
3 Code of conduct
This Code of Conduct applies to all Operators. In addition, Operators who are participating in a VSQAS (or a third party quality assurance scheme recognised by VS) are also required to meet the relevant standards applicable to the VSQAS or third party quality assurance scheme (as applicable).
3.1 Customer Care
The Operator will ensure that high standards of customer care are evident in correspondence and contact with customers. All of the Operator’s staff will be expected to deal with customers in a courteous, efficient and polite manner. Complaints from customers or prospective customers will be dealt with courteously and promptly, with every effort made to resolve them to the satisfaction of all involved.
The Operator understands that a helpful and friendly attitude reflects well on its individual business, on the local area, as well as on Scotland as a whole. Therefore the Operator and its staff will take a positive and proactive approach to dealing with queries from the general public (whether they are their own customers or not). The Operator will encourage all staff to develop a good knowledge of the local area, local attractions and tourist services.
The Operator will ensure that both the Operator and its staff receive appropriate training and development where required or beneficial, whether in specific technical skills or in more general customer care.
The Operator will ensure that both the Operator and its staff will not ‘post’ any inflammatory, derogatory or defamatory comments about another VS operator and/or its staff on any third party web site of the nature of Google,Trip Advsior, etc.
3.2 Safety, Maintenance and Hygiene
The Operator will make sure that all buildings, premises, equipment and vehicles comply with all relevant health and safety legislation, are maintained in sound condition, and fit for the purposes intended; and that high standards of safety are maintained at all times.
The Operator will ensure that the highest standards of cleanliness and hygiene will be maintained at all times.
3.3 Pricing and Advertising
3.3.1 The Operator will ensure that the prices of all products and services offered by it are made clear and unambiguous, including any surcharges or charges for additional services. Where prices are agreed in advance, these will not be exceeded. A receipt or VAT receipt (if applicable) will be available to customers if requested.
3.3.2 The products and services on offer will be described fairly and clearly in all advertising – whether by printed brochures, web sites, word of mouth, or any other means. This will be kept up to date, and any changes advised to prospective customers. These products or services should be supplied or delivered as agreed with the customer, or as advertised – for example opening hours, appointments and reservations will be honoured.
3.3.3 Operator’s own terms and conditions for bookings relating to Business Web Listings:-
(a) The Operator must display, either on the VS Site, or via a link to its own site, or (where applicable) via the link from the Operator’s appointed Web Booking Service Provider, its own terms and conditions for the booking of accommodation and/or provision of products or services in respect of its establishment;
(b) The Operator’s terms and conditions must be stated in a clear and unambiguous manner, and in particular, the customer and/or its agent must be able to determine the following:-
i) Any deposit payable, and whether it is refundable or not;
ii) Terms and conditions surrounding late arrival;
iii) The procedure for cancellation(s);
iv) Whether any cancellation charges are payable and, if so, the amount;
v) Whether there are any special rules and charges to be considered, e.g. the keeping of animals, use and cost of heating and lighting, etc; and
vi) Any other pertinent conditions applicable;
(c) Under no circumstances will VS be liable to the Operator for any failure by the Operator to display the Operator’s terms and conditions, and/or its inability to obtain part or full satisfaction from a customer for any amounts outstanding in respect of any accommodation or services so booked via a Web Booking Engine.
Members of a VSQAS must adhere to the rules and regulations of the relevant VSQAS regarding misrepresentation. If not a member of a VSQAS, and without prejudice to section 4 below, the Operator will ensure that their products, services, premises and/or facilities are not misrepresented in any way.
3.5 Legislation and Insurance
It is the Operator’s responsibility to be aware of, and comply with, all relevant statutory obligations and local licensing requirements relating to its business (including, but not limited to, those relating to equality, health and safety, consumer protection, short term lets, anti-corruption and prevention of modern slavery) and to ensure that the Operator and its staff comply with these. It is the Operator’s responsibility to take out and maintain sufficient insurance relating to its business.
4 Advertising and Promotion
4.1 Provision of Marketing Information
4.1.1 The Operator hereby grants to VS and its agents, contractors, representatives and partners a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to use all Material for the purposes of providing the Products and Services, promoting the Operator's business and promoting tourism in Scotland. Unless the parties agree otherwise in writing in respect of specific Materials, this licence shall include the right for VS to:
(a) use any Material in order to provide the Products and Services;
(b) use any Material in connection with the promotion and/or provision of any other products and/or services by VS or its contractors, agents or representatives to, or in respect of, the Operator from time to time;
(c) provide any Material to other public sector bodies in connection with relevant legal and/or regulatory requirements (including, but not limited to, in order to assist the police in missing persons' enquiries); and
(d) provide any Material to third party parties selected by VS for the purposes of promoting the Operator's business and/or promoting tourism in Scotland.
4.1.2 The Operator represents, warrants and undertakes to VS that:
(a) it owns all rights in and to the Material;
(b) all text contained within the Material will be written and compiled in its entirety by the Operator, with the exception of any quoted texts or text expressly commissioned in writing by the Operator from a third party (provided that the relevant intellectual property rights in and to the same are owned by the Operator);
(c) the Material does not violate or infringe upon the rights of any third party (including, but not limited to, any rights of copyright, trade mark, privacy or other intellectual property rights);
(d) the Material can be utilised by VS across all channels and media (for example, images supplied for print advertising can be utilised in web listings and vice versa);
(e) the Material contains nothing defamatory, obscene or otherwise unlawful, and that it does not breach any confidence or invade the privacy of any person and is not in breach of any legislation;
(f) the Material does not breach, or risk being in breach of any UK law or other legal duty or obligation owed by you or VS; and
(g) all statements in the Material purporting to be factual are true and based upon reasonable research for accuracy, and that no directions or instructions, if followed accurately, will cause damage or injury to the user or to third parties.
4.1.3 For the avoidance of any doubt, the warranties in section 4.1.2 above include (without limitation) all Material supplied by the Operator via a VS official order form (including online ordering systems) all advertising material provided by the Operator for inclusion in VS printed materials
4.1.4 It is the responsibility of the Operator to check the accuracy of all Material (including, without limitation, any listings or advertisements (in whatever medium) prepared by or on behalf of VS using the Material), as Material is published by or on behalf of VS without any guarantees, conditions or warranties as to accuracy on the part of VS (to the extent permitted by law).
4.1.6 The Parties acknowledge and agree that:
(a) subject to paragraph (b) below, VS (and its licensors) own all intellectual property rights in and to the content of all VS Sites and all publications (in whatever medium) published by or on behalf of VS from time to time, and nothing in the Terms grants the Operator any rights of licence and/or use in respect of such intellectual property rights except to the extent expressly stated in the Terms; and
(b) without prejudice to section 4.1.1 above, the Operator owns all intellectual property rights in and to the Material that is provided by it to VS.
4.2 Use of Marketing Information
4.2.1 VS reserves the right to refuse to accept (or, where applicable, to amend) all or any part of any Material provided by the Operator in relation to any Products and Services (including any reference to a website, or information contained on a website, that an Operator requests VS to promote).
4.2.2 VS is unable to guarantee the date of insertion, position, wording or quality of any advertisement.
4.2.3 Unless otherwise agreed between VS and the Operator, VS is unable to return any Material provided to it by the Operator.
4.2.4 The Operator undertakes to timeously provide content, and timeously respond to requests to proof check content, prior to the relevant dates of publication of any Material.
4.3 Other VisitScotland Products, Services and Marketing Activities
4.3.1 The Operator acknowledges that additional terms and conditions may apply in respect of the Operator’s participation in any other VS and/or related third party products, services and/or other marketing activity, including (without limitation) the rules applicable to each VSQAS, and any specific terms and conditions applicable to:
(a) particular VS events and exhibitions; and
(b) particular products and services offered via any VS Site, Visitor Information Centres, or Contact Centre.
4.3.2 In the event of a conflict between the provisions of the Terms and the terms and conditions applicable to any specific VS product, service and/or marketing activity, the terms and conditions applicable to that specific product, services and/or activity shall have precedence.
5.1 Inspection of Facilities
VS reserves the right to inspect the premises, facilities products and/or services of any Operator (including by “mystery shopping”) to monitor compliance with the Terms.
5.2.1 Without prejudice to section 5.2.2 below, VS may cease the provision of all or any part of the Products and Services and terminate all or any part of these Terms for any reason on providing not less than 14 days prior written notice to the Operator. In the event that VS exercises its rights pursuant to this section 5.2.1 (and not in any other circumstances of cessation of all or part of the Products and Services and/or termination of all or part of the Terms), VS shall refund to the Operator a proportionate amount of the Fees (if any) that have been paid by the Operator which relate to the Products and Services that have not been provided by VS as at the effective date of termination (as determined by VS in its sole discretion, acting reasonably). For the avoidance of any doubt, where the relevant Products and Services have been provided by VS at no cost to the Operator, there shall be no amounts due by VS to the Operator where VS exercises its rights under this section 5.2.1.
5.2.2 VS is also entitled to cease the provision of the Products and Services and terminate these Terms at any time on notice to the Operator and with immediate effect (and without any liability by VS to the Operator) in the event that:
(a) VS reasonably considers that the Operator has caused damage to VS’s interests, reputation or standing; or
(b) subject to section 5.2.3 below, VS receives a complaint about the Operator which, after investigation of such complaint, VS (in its sole discretion) believes to be sufficiently serious; or
(c) VS receives three or more written complaints within one Scheme Year or where access to the Operator’s listed establishment by VS for the purposes of inspection has been refused or denied by the Operator on more than two occasions, and in the sole opinion of VS, such refusal or denial of access is being used to frustrate the efforts of VS to examine the premises; or
(d) the Operator suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 OR (being a partnership) has any partner to whom any of the foregoing apply; or
(e) the Operator ceases to carry on its business and/or a change of ownership occurs in relation to the Operator (if a body corporate) and/or a change of ownership occurs in relation to the accommodation, property or other facilities operated by the Operator; or
(f) the Operator has breached any of the Terms (including, but not limited to, any of the terms of the Code of Conduct); or
(g) the Operator fails to pay, or, in the past, has failed to pay, any sums due to VS (whether under the Terms or otherwise) on time and/or in full.
5.2.3. In the event that VS exercises its rights pursuant to section 5.2.2(b), the Operator will be informed in writing by letter, and the Operator may write to VS to appeal the decision within 15 days of receipt of the letter. Without prejudice to VS’s other rights under this Agreement, VS’s final decision in respect of any appeal will be binding upon the Operator.
5.2.4 Expiry or termination of the Terms for whatever reason shall not affect the accrued rights of the parties arising out of the Terms as at the date of expiry or termination and, in particular, the right to recover damages from the other, nor shall expiry or termination affect the continuance in force of any provision contained within the Terms which is expressly or by implication intended to continue in force on or after such expiry or termination, including, without limitation, sections 4.1, 5.3, 5.5, 5.6 and 7.
5.3.1 The Operator shall fully indemnify and keep indemnified VS from and against all costs, claims, expenses (including reasonable legal expenses), liability, losses or damage that VS may suffer or incur as a result of or in connection with:
(a) the Operator’s breach of any of the terms of section 4.1 above; and
(b) any claims or actions that are raised against VS by any third party in connection with the acts, omissions, negligence, default and/or breach of the Operator and/or any of its staff; and
(c) any breach by the Operator of any of the Terms.
5.3.2 Without prejudice to the terms of section 5.3.1 above, VS will notify the Operator as soon as reasonably practicable after it becomes aware of any claim or action by a third party of the nature described in section 5.3.1(b) above and may (at VS’s discretion) allow the Operator to conduct the defence of such claim or action.
5.4 Change of Ownership
Without prejudice to section 5.2.2(e), the Operator is required to notify VS if it ceases to carry on business or if a change of ownership occurs in relation to the Operator (if a body corporate) and/or in relation to the accommodation, property or other facilities operated by the Operator. If the Operator is participating in a quality assurance scheme (whether a VSQAS or a third party scheme recognised by VS), any awards are non-transferable, and the new owner is required to apply to VS as a new Operator in accordance with the schedule of conditions applicable to the VSQAS or third party quality assurance scheme (as applicable).
5.5 Data Protection and Access to Information
5.5.2 The Operator acknowledges that VS, as a public sector body, is subject to the requirements of certain access to information legislation in the United Kingdom, including (without limitation) the Freedom of Information (Scotland) Act 2002, the Access to Environmental Information (Scotland) Regulations 2004 and the Public Sector Reform (Scotland) Act 2010 (referred to in this section 5.5.2 as the “Information Laws”). The Operator acknowledges that VS may be obliged under the Information Laws to disclose information held by VS which relates to the Operator. For the avoidance of doubt, VS shall be responsible for determining in its absolute discretion whether any information requires to be disclosed in accordance with the provisions of the Information Laws and shall have no liability to the Operator in respect of such determination and/or disclosure.
5.6 Limitation of Liability
5.6.1. Nothing in the Terms shall exclude or limit the liability of either party for death or personal injury resulting from its own negligence, nor for any other liability that cannot be excluded or limited at law.
5.6.2 Subject to sections 5.6.1 and 5.6.3, in no event shall VS’s aggregate liability to the Operator under or in connection with these Terms exceed the aggregate fees paid by the Operator in respect of the Products and Services (or, where no Fees are payable by the Operator in respect of the Products and Services, an amount equal to £500).
5.6.3 Subject to section 5.6.1, VS shall have no liability whatsoever to the Operator:
(a) for any consequential or indirect loss or damage;
(b) for (i) loss of profit, (ii) loss of business, (iii) loss of revenue, (iv) loss of data, (v) loss of goodwill and/or (vi) loss of anticipated savings;
(c) in relation to any action or claim by any customer of the Operator or any other third party which relates to or is connected with the acts, omissions, negligence, default and/or breach of the Operator and/or any of its staff; and/or
(d) to the extent that any claim is directly or indirectly caused or affected by the Operator’s breach of contract or any dishonest, fraudulent or criminal act of the Operator or any of its employees, sub-contractors or agents; and/or
(e) in relation to any error, breach or failure by any Web Booking Service Provider and/or any other third party engaged by or on behalf of the Operator.
6 Prevention of corruption
The Operator shall:
(a) comply with all applicable laws, regulations, codes and guidance relating to anti-bribery and anti-corruption, including but not limited to the Bribery Act 2010 (“Relevant Requirements”); and
(b) have and shall maintain in place throughout the term of this Agreement, and enforce where appropriate, its own policies and procedures to comply with the Relevant Requirements, including but not limited to adequate procedures under the Bribery Act 2010.
For the purpose of this section 6, the meaning of adequate procedures shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act).
7 Miscellaneous and governing law
7.1 The Operator acknowledges that it is not entering into the Terms on the basis of or in reliance on any representation, warranty or other statement except as expressly provided herein and all conditions, warranties or other terms implied by statute or common law in favour of the Operator are hereby excluded to the fullest extent permitted by law.
7.2 Neither party shall be liable to the other for any total or partial failure, including interruption or delay, in the performance of its respective duties or obligations under the Terms (with the exception of obligations to pay money, to which this section shall not apply) if such failure arises from or is attributable to circumstances beyond the reasonable control of the affected party.
7.3 The Operator shall not be entitled to assign, novate, sub-contract or otherwise transfer any of its rights and/or obligations under the Terms without VS’s prior written consent. VS shall be entitled to sub-contract all or any part of its obligations in connection with the provision of the Products and Services without providing notice to the Operator.
7.4 If any provision of the Terms is found to be illegal or unenforceable in whole or in part, the other provisions of the Terms and the remainder of the relevant provision shall continue in full force and effect.
7.5 VS may amend, update and/or replace all or any part of the Terms at any time with immediate effect on providing notice to the Operator.
7.6 The Terms shall be construed in accordance with and governed in all respects by the laws of Scotland and the parties submit to the exclusive jurisdiction of the Scottish Courts in respect of all disputes arising out of or in connection with the Terms.