These Provider Terms and Conditions (“Agreement”) are entered into between Find Fit People Ltd Pty (“FFPTravels”), located at 22 Boland Street, Westcourt 4870, Cairns, Queensland, Australia and its Affiliates, and Provider. This Agreement incorporates the definitions in Exhibit A (“Definitions”). Any capitalized term used in this Agreement will have the meaning assigned to it in Exhibit A or elsewhere in this Agreement. This Agreement governs the relationship between FFPTravels and Provider. The relationship between Provider and a Customer is governed by the Provider-Customer Contract.

 

1. FFPTravels Platform. FFPTravels operates the FFPTravels Platform. In connection with Provider’s access and use of the FFPTravels Platform, Provider appoints FFPTravels as its commercial agent for the purposes set forth herein. Using the FFPTravels Platform, (i) Customers can purchase Services from Provider through FFPTravels acting as a commercial agent for Provider, and (ii) Travel Agencies, concierges, or other entities may purchase Services from Providers for their clients. Provider is responsible for acquiring and maintaining, at its own expense, all equipment and connectivity required to access the FFPTravels Platform.

 

2. Provider Administration Site. Provider may manage the Provider Content, including Product Offers, on the FFPTravels Platform using the Provider Administration Site.

 

2.1. Provider Account. Provider will provide to FFPTravels all information required by FFPTravels to establish and maintain the Provider Account. This includes (i) insurance information details in accordance with Section 11 below, (ii) current business license or registration information, (iii) details regarding Provider’s Payment Account, (iv) other information as reasonably requested by FFPTravels, and (v) all necessary information and documents required for conducting an identity verification process using Persona Identities Inc. as specified by FFPTravels. Provider agrees to submit this information promptly upon activation and to conduct updates through the Provider Administration Site.

 

2.2. Login Credentials. The Provider shall maintain the confidentiality and security of its Login Credentials by implementing and adhering to recognized security standards and best practices, such as regular password updates and the use of multi-factor authentication. The Provider must not disclose the Login Credentials to any third party under any circumstances. The Provider is liable for all activities conducted through its Provider Account and must compensate FFPTravels for any damages resulting from unauthorized account activities caused by the Provider's failure to secure its Login Credentials. The Provider must immediately notify FFPTravels in writing if it knows or suspects that (i) its Login Credentials have been lost, stolen, misappropriated, or otherwise compromised, or (ii) there has been actual or suspected unauthorized use of its Provider Account. This notification must include all details of the incident and the steps the Provider has taken to mitigate any resultant harm or unauthorized access.   

 

3. Sale of Services on the FFPTravels Platform.

 

3.1. Product Offers. For each Service that Provider wishes to sell via the FFPTravels Platform, Provider will upload a Product Offer using the Provider Administration Site. The Product Offer must include all necessary information about the Services, including (i) suitability information (e.g. minimum age, required skills or permits (such as a driver’s license), level of fitness, or inherent risks (including risks to persons with pre-existing medical conditions), (ii) logistical information (e.g. meeting point, meeting time, duration, and required or recommended clothing and equipment), and (iii) other information requested by FFPTravels. Provider shall ensure that all critical information is included in the “Important information” section of the Product Offer. If any logistical information is omitted from the Product Offer or ticket, Provider shall provide this information to Customer as soon as possible. FFPTravels reserves the right to introduce Content Modifications in line with FFPTravels Content Guidelines.

 

3.2. Availability. Provider must keep the Product Offer, including Availability, up-to-date and accurate at all times. Provider must delete any canceled or invalid Product Offers immediately. Provider is responsible for any Customer claim based on alleged or actual inaccuracies of the Product Offer, including Availability, or other Provider Content.

 

3.3. Prices. Provider sets the Retail Price at which Services will be sold to Customers. The Retail Price for the Services stated in the Product Offer shall include Applicable Taxes. The Retail Price must include all expenses; FFPTravels will not collect such amounts separately. The Product Offer must disclose the existence and amount of any fees, taxes, dues, commissions, or other amounts that will be collected on the day Services are provided. Provider may not collect (or attempt to collect) from a Customer any fees, taxes, dues, commissions, or other amounts not disclosed in the Product Offer.

 

3.4. Conclusion of Contract. When a Customer purchases Services via the FFPTravels Platform, the Customer purchases Services directly from Provider pursuant to the Provider-Customer Contract, concluded on Provider’s part by FFPTravels acting as a commercial agent of the Provider in the name and on behalf of Provider. Provider appoints and authorizes FFPTravels (and its Distribution Partners) as its commercial agent to conclude the Provider-Customer Contract with Customers in the name and on behalf of the Provider, manage and cancel Bookings, and make full or partial refunds to Customers, as set forth in this Agreement. FFPTravels may decide to reject the conclusion of the Provider-Customer Contract within its sole discretion (e.g. in the case of potential fraud or compliance concerns).

 

3.5. Payment Collection. Provider instructs FFPTravels as its commercial agent to collect payments from Customers in the name and on behalf of Provider, and Provider agrees that FFPTravels may from time to time acting in its sole discretion appoint such Sub-Commercial Agent as it sees fit to receive those payments directly from Customers and to make onward payment of those sums successfully received to Provider. In particular, for any payment from a US Customer, Provider appoints Stripe LTD as its limited payment agent solely for the purpose of directly accepting such payments on behalf of Provider and to make onward payment of those sums to FFPTravels. Provider agrees that receipt of payment for the sum due from a Customer by FFPTravels, or its Sub-Commercial Agent (including Stripe LTD), as applicable, shall extinguish Customer's payment obligation to Provider. Provider agrees that payment made by a Customer to FFPTravels or its Sub-Commercial Agent (including Stripe LTD), as applicable, through the FFPTravels Platform shall be considered the same as a payment made directly to Provider, and Provider will provide Services to Customers in the agreed-upon manner as if Provider had received the Customers’ funds directly. Provider acknowledges and agrees that it shall have no recourse against a Customer once the funds are tendered to FFPTravels or its Sub-Commercial Agent (including Stripe LTD), as applicable. FFPTravels uses a Payment Service Provider to process payments from Customers; in some cases a Distribution Partner and in certain countries an Affiliate may be appointed as a Sub-Commercial Agent. FFPTravels will bear the credit card and banking fees for the receipt of payment from Customers, provided that FFPTravels may charge Customers a foreign exchange fee if applicable.   

 

3.6. Changes. Customers occasionally make mistakes when making Bookings. Subject to availability, FFPTravels may change the date, time, language, or number of persons for a Booking up to two (2) hours after a Customer booked a Service. Such changes will be made at no charge to the Customer or to FFPTravels.

 

3.7. Chargebacks and Disputes. If a Chargeback or other payment failure occurs before Provider provides a Service, FFPTravels will inform Provider and cancel the Booking. If a Chargeback occurs after Provider provides a Service, FFPTravels will ask Provider to provide a response within three Business Days. FFPTravels may forward Provider’s response to the credit card issuer. Provider acknowledges and agrees that FFPTravels accepts payments from Customers as Provider’s commercial agent, and that FFPTravels obligation to pay Provider is subject to and conditional upon successful receipt of the associated payments from Customers. In the event of a Chargeback or other failed payment, (i) FFPTravels and its Sub-Commercial Agent will make no payment to Provider for the affected Booking, (ii) FFPTravels will receive no Commission for the affected Booking, and (iii) FFPTravels may offset any amount already paid to Provider for the affected Booking against any future payment under this Agreement. FFPTravels and its Sub-Commercial Agent are not a party to the Provider-Customer Contract, do not act as a guarantor for payment by Customers, and are not liable to Provider in the event of Chargeback or other nonpayment by a Customer.

 

3.8. Cancellations; No Shows. Provider will not directly accept cancellations of Bookings from Customers; all cancellations must be made by a Customer through the FFPTravels Platform or FFPTravels customer service.

 

(a) During the Free Cancellation Period. If a Customer cancels a Booking during the Free Cancellation Period, FFPTravels will give the Customer a Full Refund. If FFPTravels gives a Customer a Full Refund, pursuant to this section or for any other reason, (A) Provider will receive no payment for the Booking, and (B) FFPTravels will receive no Commission for the Booking.

 

(b) After the Free Cancellation Period. If a Customer cancels a Booking after the Free Cancellation Period has ended, and there are no extenuating circumstances, the Booking will be treated as a Completed Booking for purposes of payment. If there are extenuating circumstances, FFPTravels may give the Customer a Full Refund.

 

(c) Force Majeure Situations. In the event that Provider cancels Services because of a Force Majeure Situation, Provider must give prompt notice to the affected Customers and FFPTravels and provide a Full Refund to Customers within 10 Business Days.

 

(d) Other Cancellations by Provider. In the event that Provider cancels Services for any reason other than a Force Majeure Situation, (i) FFPTravels will provide affected Customers with a Full Refund, and (ii) Provider will pay FFPTravels an amount equal to the Commission FFPTravels would have received for such Booking had it not been canceled. Provider shall provide to the Customer the reason for the cancellation. In addition, if Provider cancels Services for any reason other than a Force Majeure Situation after a Customer has already arrived at the Meeting Point or place of pick-up, Provider will offer the Customer an alternative of equal or higher value (if any), to be provided at no additional charge.

 

(e) No Shows by Customer. In the event that a Customer fails to show up to receive Services, Provider will be paid the Retail Price for the Booking and FFPTravels will receive the Commission for such Booking.

 

3.9. Provision of Services. For each Completed Booking, Provider will render the Services in accordance with the details set forth in the Product Offer.   

 

3.10. Interaction with Customer. Provider will interact with Customers in a professional manner at all times. Provider will not send unsolicited communications to a Customer. In the event that Provider learns of a problem with any of the Services, Provider will notify FFPTravels of the problem and take such action as may be required to avoid or mitigate Customer complaints and/or any damage to FFPTravels’ reputation. Provider will promptly notify FFPTravels of any complaints it receives about Services.   

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4. Payment.

 

4.1. FFPTravels’s Commission. Provider agrees to pay FFPTravels a Commission for (i) use of the FFPTravels Platform, (ii) marketing performed by FFPTravels, (iii) customer service performed by FFPTravels, (iv) FFPTravels’s brokering of transactions between Provider and Customers, and (v) other services performed hereunder by FFPTravels. FFPTravels’s Commission is a percentage of the Retail Price for a Booking, as specified in the Provider Account. Provider agrees to keep the amount of Commission confidential. The Commission will be deducted from the Retail Price charged to Customers in the agreed currency.

 

4.2. Payment to Provider. At Provider’s option, FFPTravels will make payments to Provider either once per month or twice per month. The Provider shall have the right to select the currency from the list of available currencies in which they wish to receive payouts. At any time, the Provider may change the currency for payouts.

 

(a) Payment Once Per Month. This section is applicable if Provider chooses to be paid once per month. By the fifth Business Day of each month, FFPTravels will transfer an amount to the Provider’s Payment Account equal to (i) the total amount collected from Customers for Completed Bookings occurring in the prior month, less (ii) applicable Commission.

 

(b) Payment Twice Per Month. This section is applicable if Provider chooses to be paid twice per month. By the fifth Business Day of each month, FFPTravels will transfer an amount to the Provider’s Payment Account equal to the total amount collected from Customers for Completed Bookings occurring in the Second Half of the prior month, less (i) applicable Commission, and (ii) a 2% processing fee. By the twentieth Business Day of each month, FFPTravels will transfer an amount to the Provider’s Payment Account equal to the total amount collected from Customers for Completed Bookings occurring in the First Half of that month, less (a) applicable Commission and (b) a 2% processing fee.

 

4.3. Transaction Fees; Deductions. FFPTravels shall pay the transaction fees charged by FFPTravels’s or its Sub-Commercial Agent’s financial institution to transfer amounts to Provider’s Payment Account. Provider will bear any fees charged by Provider’s own financial institution for the receipt of payments from FFPTravels or its Sub-Commercial Agent and, if applicable, any fees charged by the intermediary bank. FFPTravels or its Sub-Commercial Agent may deduct from any payment to Provider the costs of refunds made to Customers, replacement services provided to Customers, or other amounts Provider is required to pay or reimburse a FFPTravels Party under this Agreement.

 

4.4. Taxes. Provider is solely responsible for determining its obligations to report, collect, remit or include in its Product Offers any Applicable Taxes and for remitting any Applicable Taxes to the appropriate governmental entity. If Provider requires FFPTravels to collect Applicable Taxes on Provider’s behalf, Provider will inform FFPTravels regarding the applicable rate(s) and the Parties will cooperate to establish a method for such collection. If at any time FFPTravels determines that it is required to collect or deduct Applicable Taxes relating to Services, either on its own or on Provider’s behalf, it will inform Provider and collect or deduct such Applicable Taxes. Upon request from a FFPTravels Party, Provider will within five business days (i) provide that entity with Provider’s valid tax identification or registration numbers, including where requested any business registration number, to demonstrate that Provider is a registered taxpayer in applicable jurisdictions where Services are taxable, (ii) issue a valid tax invoice to that entity in relation to any specified Services, (iii) provide documentation to that entity substantiating that Provider remitted tax on Services (including copies of returns, workpapers, and supporting transaction data reports), and (iv) provide other cooperation to that entity as requested to confirm Provider’s compliance with tax obligations. Such information requests may be made directly to the Provider or via the Provider Administration Site. Any failure to comply with the requirements of this section may result in the temporary or permanent suspension of Provider’s Services from the FFPTravels Platform. In the event Applicable Law in a jurisdiction imposes VAT (or other Applicable Tax) on Commission, FFPTravels will deduct the amount of such VAT (or other Applicable Tax) from payments due to the Provider, in addition to the Commission. Provider is responsible for determining if any tax credit is available under Applicable Law for payment of this VAT (or other Applicable Tax) on Commission.

 

4.5. Statement. FFPTravels will provide Provider a statement (“Statement”), once per payment period, showing (i) the total number of Completed Bookings during the payment period, (ii) the total amount collected from Customers on Provider’s behalf for Completed Bookings, (iii) the total amount transferred to Provider’s Payment Account for those Completed Bookings, (iv) the services performed by FFPTravels (“Commission”) and (v) the amount of sales or other taxes collected and remitted on Provider’s behalf (if any). The Statement is the basis for payout by FFPTravels. Point (iv) serves as the invoice FFPTravels issues for the Provider in relation to the services provided ("Commission Invoice"). Unless Provider provides written notice to FFPTravels of a good faith dispute with regard to a Statement within thirty (30) days of receipt thereof, including reasonable detail in support of such dispute, such Statement will be deemed accepted. After such period, adjustments for discrepancies will be made in FFPTravels’s sole discretion. Without prejudice to the foregoing, no dispute may be raised, and no claim, action or proceedings may be brought, against FFPTravels in respect of any payment-related matter after (a) the expiry of one (1) year from the date on which the payment at issue is due (or alleged to be due), or (b) where more than one payment is at issue, the expiry of one (1) year from the date on which the first of such payments at issue is due (or alleged to be due).

 

4.6. Payment Accrual. Notwithstanding anything else to the contrary in this Agreement, FFPTravels and its Sub-Commercial Agent may postpone and accrue payments due to Provider hereunder until the total amount payable is equal to at least $50.00 (or an equivalent amount in the specified currency). FFPTravels will transfer any accrued and unpaid amount to Provider upon any termination of this Agreement.

 

4.7. Payment Withholding. FFPTravels and its Sub-Commercial Agent may postpone or withhold payments due to Provider hereunder in case Provider has failed to comply with providing mandatory information as listed in Section 2.1 and Section 4.4 of this Agreement.

 

5. Customer Relations.

 

5.1. Customer Communications. Provider may not directly or indirectly (i) encourage a Customer to book a service outside the FFPTravels Platform, (ii) refer a Customer to any other website or platform, including Provider’s own website or platform, or (iii) take any other action to circumvent the FFPTravels Platform or the payment of Commission. If prospective customers, who initiated communication through the FFPTravels Platform, ask to book a Service outside the FFPTravels Platform, Provider will refer them to the FFPTravels Platform.

 

5.2. Communication via the FFPTravels Platform. Provider must check the messages received via FFPTravels’s Communication Tools or forwarded through the FFPTravels Platform at least once per day, and shall respond to Customer inquiries within the following timelines:

Customer contacts Provider more than 7 days before the Services are scheduled to begin: Provider must reply to Customer within 48 hours.

Customer contacts Provider between 2 and 7 days before the Services are scheduled to begin: Provider must reply to Customer within 24 hours.

Customer contacts Provider less than 2 days before the Services are scheduled to begin: Provider must reply to Customer before the Services begin.

Provider must respond to inquiries made directly by FFPTravels within 24 hours. Provider may not use the Communications Tools provided on the FFPTravels Platform or any information provided through the FFPTravels Platform to (a) distribute unsolicited commercial messages or promotions; (b) contact a Customer for any purpose unrelated to a Service, including recruiting or soliciting the Customer to join third-party services, applications or websites; (c) make or accept a booking that circumvents the payment of Commission; (d) request or accept a payment for Services not using the FFPTravels Platform; or (e) transmit Prohibited Content. Provider acknowledges that messages sent through the Communication Tools or via the FFPTravels Platform may be monitored for quality control purposes and stored by FFPTravels. FFPTravels may delete or block any message that violates this Agreement.

 

5.3. Invoices. Upon request by a Customer, Provider will provide the Customer an invoice for Services via the Communication Tools. The invoice must comply with all applicable tax requirements.

 

5.4. Service Levels & Business Conduct. Provider agrees to act with the care of an ordinary and reasonable businessman towards all customers. Provider agrees that the Retail Prices, availability, amenities, and restrictions for Services offered via the FFPTravels Platform will be equal to or better than those made available through Provider’s or its affiliates’ own online shops. Customers who book a Service through the FFPTravels Platform will be treated at least as well as customers that book through Provider’s or its affiliates’ own online shops. Provider acknowledges that FFPTravels has provided them with access to FFPTravels’s written responsible tourism onboarding guidelines, which sets forth guidelines for FFPTravels's action and behavior relating to ethical and responsible standards of behavior, including, without limitation, those dealing with human rights (for example, child labor, slavery),

, environmental protection, sustainable development, and bribery and corruption ("FFPTravels's Responsible Tourism Guidelines"). During the term of this Agreement, Provider shall conduct business, and shall ensure that any person under its control conducts business, in a manner consistent with FFPTravels's RT Guidelines and all applicable laws and regulations relating to the subject matter thereof. If Provider fails to meet the conditions laid out in this clause, FFPTravels may terminate this Agreement pursuant to 14.4.

 

5.5. Tickets and Receipts. Provider must accept customer tickets generated by FFPTravels, including both tickets printed on paper and tickets displayed on smart phones or other mobile devices. If requested, Provider must provide each Customer a receipt for Services. The receipt must comply with all applicable tax requirements.

 

5.6. Personnel Conduct. Provider is solely responsible for the conduct of its personnel in connection with Customers or other persons. Provider shall not, and shall ensure that its personnel shall not, discriminate against or harass any Customer, including, on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation.

 

5.7. Customer Requests. Provider will handle and respond to requests or complaints from Customers regarding the Services, complaints about Provider personnel, and requests for refunds. In the event Provider fails to respond to a Customer complaint within three Business Days, FFPTravels will give the Customer a Full Refund. In addition, a FFPTravels Party will (i) offer customer support services to the Customer, (ii) act as an intermediary between Provider and the Customer, (iii) answer and reply on behalf of the Provider via the Customer service portal, social media or, if applicable, the communication channels provided on the Provider Detail Page. In the event of Provider’s noncompliance with the service levels in Section 5.4 or any material irregularity, complaint, or nonconformity with a Product Offer, a FFPTravels Party may at its sole discretion (a) give the Customer a Full Refund or partial refund and/or (b) provide the Customer alternative services (of an equal or better standard than the Services) and deduct the cost of such replacement services from a future payment to Provider. If a FFPTravels Party gives a Customer a partial refund, the amount paid to Provider (and the Commission charged by FFPTravels) will be reduced accordingly.

 

5.8.Reviews. After a Booking has been completed, the Customer will have the opportunity to review the Services on the FFPTravels Platform using FFPTravels's review system. The aim of the review system is to gather meaningful and accurate feedback regarding the Services and Provider in areas such as performance, reliability, and trustworthiness. Reviews can be viewed by any user of the FFPTravels Platform. All review content is the exclusive property of FFPTravels or the applicable FFPTravels Party. Provider may not use or distribute any reviews from the FFPTravels Platform. The reviews on the FFPTravels Platform have been created by Customers and have not been verified by FFPTravels for accuracy. Provider is prohibited from manipulating the review system in any manner, such as writing a review about Services or instructing a third party to do so.

 

6.Marketing.

 

6.1.FFPTravels Obligations. FFPTravels will promote and market the Services in its sole discretion, and will bear the cost of its promotion and marketing efforts. In order to promote the Services, FFPTravels may use the Provider Content and Provider Marks in offline and online marketing, including email marketing and pay-per-click advertising. FFPTravels will, in its sole discretion, determine whether and how to promote the Services and Product Offers on the FFPTravels Platform or elsewhere, including position and ranking in search results. Notwithstanding anything to the contrary herein, FFPTravels may offer a Service at a price lower than the Retail Price stated in a Product Offer, provided that the full amount of the discount is deducted from the Commission that would normally be paid by Provider.

 

6.2.Provider Obligations. Provider must offer Services under its generally-used company and brand name. The Product Offer or other Provider Content may not state or convey the impression, directly or indirectly, that (i) FFPTravels provides the Services, (ii) FFPTravels has tested the quality of the Services, or (iii) FFPTravels otherwise endorses Provider or the Services.

 

6.3.Provider Communications. Provider shall not directly or indirectly (e.g. through an affiliate or agent) engage in any marketing, promotional, or similar communications with any Customer without such Customer’s prior consent. Without limiting the foregoing, Provider shall not include any marketing or promotional content in any confirmation or other communication sent to Customers. Provider acknowledges that the transmission of communications in violation of this section constitutes both a material breach of this contract as well as a potential violation of GDPR.

 

6.4.Development. FFPTravels may share Provider Content and information relating to Provider with Distribution Partners to promote the Services and with other third parties as necessary to further develop the FFPTravels Platform (including its interfaces to third party products and services). For example, FFPTravels may transfer the necessary data to (i) promote the Services via map providers, directories, search engines, or digital assistants, or (ii) develop and implement relevant interfaces between the FFPTravels Platform and such products and services.

 

7. Compliance. Provider shall render all Services in compliance with all Applicable Laws, including (i) fire and safety laws, (ii) consumer protection laws, (iii) information and consultation laws, (iv) licensing laws, (v) health and hygiene laws and regulations (including any laws or regulations relating to COVID-19 or other communicable diseases), and (vi) other laws related to the Services or Provider’s business. Upon request by a FFPTravels Party, Provider will provide within five business days (i) copies of registrations, licenses, permits, approvals, and authorizations, and (ii) documentation demonstrating compliance with Applicable Law. In the event of alleged non-compliance of the Services, Provider shall promptly cooperate, at its own expense, with any investigation by administrative authorities or associations.

 

8. Intellectual Property.

 

8.1.Supplier Content. Provider grants to FFPTravels a non-exclusive, sublicensable (through one or more tiers), worldwide, fully-paid and royalty-free license, in any and all media now known or hereafter discovered or developed, to use, reproduce, adapt, translate, make derivative works of, modify, perform, publicly display, publicly perform, transmit, and distribute the Provider Content including (i) on or through the FFPTravels Platform, (ii) in online and offline marketing materials, and (iii) as otherwise contemplated by this Agreement or agreed by the Parties. Provider is solely responsible for the Provider Content, and may provide only Provider Content that it either owns or otherwise has the right to provide to FFPTravels under the terms of this Agreement. Provider shall not provide ProviderContent that is, contains, or references Prohibited Content. FFPTravels may remove from the FFPTravels Platform any Provider Content that, in FFPTravels’s good faith determination, does or may violate this Agreement or Applicable Law. Alternately, FFPTravels may request Provider to correct any such non-conforming Provider Content within two days of notice. To assist consumers who speak different languages, FFPTravels may translate (or have translated) Provider Content, in whole or in part, into other languages. FFPTravels cannot guarantee the accuracy or quality of such translations. If Provider becomes aware of an inaccuracy in a translated version of a Product Offer or other Provider Content, Provider shall inform FFPTravels immediately. FFPTravels will on a regular basis sublicense Provider Content to Distribution Partners.

 

8.2.Supplier Marks. Provider grants to FFPTravels a non-exclusive, sublicensable (through one or more tiers), paid-up, royalty-free license to use the Provider Marks to market the Services. FFPTravels’s use of the Provider Marks shall inure solely to the benefit of Provider and will not create any right, title, or interest for FFPTravels in the Provider Marks other than the license granted under this Agreement.

 

8.3.Retention of Rights. The Provider Content and Provider Marks, and all worldwide Intellectual Property Rights therein, are the exclusive property of Provider (and its providers). All rights in and to the Provider Content and Provider Marks not expressly granted to FFPTravels in this Agreement are reserved by Provider (and its providers).

 

8.4.FFPTravels Materials. The FFPTravels Content and FFPTravels Platform, and all worldwide Intellectual Property Rights therein, are the exclusive property of FFPTravels (and its providers). Provider may not use, copy, store, reproduce, adapt, translate, modify, distribute, publicly display, publicly perform, transmit, or otherwise exploit any FFPTravels Content, or any FFPTravels trademark, logo, or slogan during or after the term of this Agreement, without FFPTravels’s prior written consent.

 

8.5. Restrictions. Provider agrees not to directly or indirectly (i) use any robot, spider, crawler, scraper, or other automated means or process to access, collect data or other content from, or otherwise interact with the FFPTravels Platform for any purpose; (ii) avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented to protect the FFPTravels Platform; (iii) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the FFPTravels Platform; or (iv) take any action that damages or adversely affects, or could damage or adversely affect, the performance or proper functioning of the FFPTravels Platform.

 

8.6. Artificial Intelligence and Automated Processing. The Parties recognize that the use and adoption of artificial intelligence ("AI") technologies have grown increasingly widespread in a digital economy. FFPTravels may use AI technologies and automated processes to analyze, categorize, enhance, or otherwise process Provider Content. This may include, but is not limited to, the use of AI for translation, content moderation, data analysis, and personalization of user experiences. Provider acknowledges and agrees that such automated processing and use of AI technologies may result in modifications to the Provider Content, and that FFPTravels is not responsible for any inaccuracies or errors introduced by the use of such AI technologies and automated processes. Provider grants FFPTravels the right to use any data derived from the use of AI technologies and automated processes on Provider Content for the purpose of improving FFPTravels's services, AI algorithms, and automated processes.

 

9. Representations and Warranties.

 

9.1. Mutual. Each Party represents and warrants that: (i) the person executing this Agreement on its behalf is authorized to bind it to this Agreement; and (ii) this Agreement constitutes a valid and binding obligation enforceable against it in accordance with its terms.

 

9.2. By Provider. Provider represents and warrants that (i) it is the owner of the Provider Content, or otherwise has the right to provide the Provider Content to FFPTravels under this Agreement; (ii) the Provider Content does not violate any Applicable Law or the Intellectual Property Rights or privacy rights of any third party; (iii) all information with regard to any Product Offer is and shall remain to be true, accurate, and not misleading; (iv) all Services shall be rendered in compliance with, and Provider shall operate its business in compliance with, Applicable Law and industry-standard safety standards; (v) Provider has and will maintain during the term of this Agreement (and thereafter until all Bookings have been fulfilled) all registrations, licenses, permits, approvals, and authorizations required by Applicable Law relating to Provider’s business and the provision of Services; and (vi) any Provider personnel providing Services possess sufficient skills, training, qualifications, experience, licenses, and permits to perform those Services in a professional manner consistent with Applicable Law and industry best practices.

 

9.3. Disclaimers. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE ACTIVITIES AND SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. This includes, but is not limited to, the use of AI tools and automated processes. The FFPTravels Platform and FFPTravels Content are provided “as is,” without warranty of any kind, either express or implied. FFPTravels does not warrant that (i) the FFPTravels Platform will meet all of Provider’s requirements or that performance of the FFPTravels Platform will be uninterrupted, virus-free, secure, or error-free, or (ii) the FFPTravels Content will be complete, accurate, or free from technical defects or changes by unauthorized third parties. FFPTravels is not responsible for the accuracy or completeness of Customer-related data. FFPTravels does not guarantee that Provider will sell a minimum amount of Services through the FFPTravels Platform. FFPTravels reserves the right to change, supplement or remove the contents of the FFPTravels Platform, as well as its structure and function, at any time without notice at its own discretion.

 

10. Mutual Indemnification. The Indemnifying Party shall defend, indemnify, and hold the Indemnified Party harmless from and against any and all liabilities, damages, fines, penalties, settlements, losses, and expenses, of whatever kind (including legal and accounting fees, court costs, and taxes) incurred or suffered in connection with a Covered Claim. The Indemnifying Party shall assume the defense of such claim at its own expense, as soon as such claim is tendered, using counsel reasonably satisfactory to the Indemnified Party, and shall pay all costs associated with the defense, including attorneys’ fees. The Indemnifying Party shall have full control over such defense, including any settlement discussions or agreement. Notwithstanding the foregoing, the Indemnified Party (i) may participate in or assume and conduct the defense of, and any settlement discussions (in or outside of a court proceeding) relating to, such claim, and (ii) shall have the right to conclude and approve any settlement agreement purporting to bind the Indemnified and the Indemnifying Party, provided however that such approval shall not be unreasonably withheld.

 

11. Insurance. During the term of this Agreement (and thereafter until all Remnant Bookings have been fulfilled), Provider shall maintain a comprehensive general liability insurance covering risks related to Provider’s business and the Services. The policy will be written on an occurrence form for an appropriate value in light of the nature of the Services, Provider’s location, and industry standards. The policy must extend to indemnification claims tendered by the FFPTravels Parties. If one or more automobiles is used in the performance of Services, Provider shall maintain automobile liability insurance (i) with limits of not less than US$1 million (or an equivalent amount in Provider’s local currency) combined single limit per accident if the Services are provided in the United States, Canada, or Australia, or (ii) if the Services are provided in another country, at limits and scope of coverage no less than the compulsory requirements for the country where the Services are provided. On FFPTravels’s request, Provider will add the FFPTravels Parties as additional insureds to such insurance policies. Provider must provide via the Provider Administration Site (i) detailed information about the insurance provider and the insurance expiration date, and (ii) update the insurance information whenever Provider changes its insurance or the prior certificate expires. Provider must inform FFPTravels regarding any change in the required insurance policies, including non-renewal thereof. Upon request, Provider shall provide FFPTravels a copy of the applicable insurance policy and proof of payment of the relevant premiums.

 

12. Liability. FFPTravels shall be liable to Provider solely for (i) any damage to Provider due to FFPTravels’s willful or grossly negligent act, (ii) any damage to Provider‘s life, body, or health due to FFPTravels’s simple negligence, and (iii) any damages to Provider due to FFPTravels’s breach of its material obligation under the Agreement. In case of FFPTravels’s breach of its material obligation due to simple negligence, FFPTravels’s liability shall be limited to foreseeable damages typical for the type of contract. For purposes of this section, the term “material obligation” is any obligation whose fulfilment is essential for FFPTravels’s proper performance of this Agreement and on whose compliance Provider may regularly rely. Any further liability for damages is excluded. Without limiting the foregoing, FFPTravels shall not be liable for damages which occur due to interruptions or restrictions of the operation of the FFPTravels Platform due to necessary maintenance work, force majeure, or other events for which FFPTravels is not responsible. FFPTravels shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen if proper and regular data backup measures had been taken. In no event shall FFPTravels be liable to Provider for any acts or omissions of any Distribution Partner. Provider’s sole and exclusive remedies with regard to the acts or omissions of any Distribution Partner is to terminate this Agreement in accordance with Section 14.2.

 

13. Data Protection.

 

13.1. Data Protection. With regard to Customer Personal Data, both FFPTravels and Provider act separately as data controllers. Customer Personal Data collected by FFPTravels may only be transferred to Provider to the extent necessary for the performance of the Services and in compliance with data protection transfer mechanism. Provider shall comply with all applicable Data Protection Laws when processing (including accessing, collecting, storing, transferring and deleting) Customer Personal Data. Provider shall maintain adequate security procedures and controls to prevent the unintended disclosure of, the unauthorized access to, or misappropriation of, any Customer Personal Data. Upon FFPTravels’s request, Provider will provide evidence that Provider has established and maintains technical and organizational security measures governing the processing of Customer Personal Data in accordance with this section.

 

13.2. Payment Processing. Provider authorizes the Payment Service Provider, and any other third party authorized by FFPTravels, to process data required to transfer funds to and from Provider accounts, or as otherwise required to operate the FFPTravels Platform.

 

14. Term and Termination.

 

14.1. Term. This Agreement shall remain in effect until terminated in accordance with its terms. Neither Party shall be liable to the other for any damages resulting solely from termination as permitted herein.

 

14.2. Termination for Convenience. This Agreement may be terminated by either Party at any time by providing thirty (30) days prior written notice to the other Party. 

 

14.3. Termination for Cause. Either Party may terminate this Agreement with immediate effect, if the other Party commits a material breach of its obligations under this Agreement and fails to remedy that breach within fourteen (14) days of receipt of a notice from the terminating Party specifying the breach and requiring it to be remedied. In the event of any material breach of Provider’s obligations under this Agreement (including a breach of Sections 2, 3, 4, 6, 8, 9, or 13), FFPTravels may immediately suspend Provider’s access to the FFPTravels Platform, remove or suspend the listing of any or all of Provider Content, and/or suspend distribution of the Services.

 

14.4. Suspension. In addition to FFPTravels’s suspension rights under Section 14.3, FFPTravels may suspend access to the FFPTravels Platform (i) as reasonably necessary to avoid material harm to FFPTravels or its Customers, including if Provider is engaged in, or FFPTravels reasonably suspects Provider is engaged in, any fraudulent or illegal activities; (ii) for non-payment by Provider of any undisputed invoices that remain unpaid for more than fifteen (15) days following receipt of a payment reminder; (iii) as required by Applicable Law or at the request of a governmental agency, or (iv) to the extent Provider is otherwise in breach of this Agreement. 

 

14.5. Effects of Termination. Upon termination or expiration of this Agreement, (i) FFPTravels will disable Provider’s access to the Provider Administration Site, and (ii) the listing of Provider Content on the FFPTravels Platform will be removed. Provider shall not be entitled to any refund of any fees paid prior to the termination date. The termination or expiration of this Agreement shall not relieve either Party of its obligations incurred prior to the effective date of termination or expiration. Sections 1, 2.3, 4.2, 7.2, 8.5, 9, 10, 11, 12, 13, 14.5, 15, 16 and 17 will survive termination of this Agreement for any reason. Upon termination or expiration of this Agreement, Provider shall fulfill any existing Bookings made prior to termination or expiration of this Agreement in accordance with the terms of this Agreement.

 

15. Confidentiality. During the Term and thereafter, neither Party shall use or disclose to any third party the Confidential Information of the other Party, except (i) to its own employees, officers, agents, representatives or subcontractors on a need-to-know basis provided that such persons are bound by obligations of confidentiality at least as protective as those set out in this Agreement, (ii) to the extent necessary to exercise its rights and perform its obligations under this Agreement, (iii) to the extent necessary to comply with Applicable Law or with a valid order of a court of competent jurisdiction, or (iv) with the written consent of the disclosing Party. For the purposes of this Agreement, “Confidential Information” means all information of a confidential or proprietary nature disclosed by a Party to the other Party that (i) is clearly marked as confidential, (ii) is identified as confidential at the time of disclosure, or (iii) should reasonably be understood by the receiving Party to be confidential due to its nature and the context of its disclosure. This obligation does not apply to information that is generally available to the public, was known to the receiving Party before receipt, was independently developed by the receiving Party without use of or access to the disclosing Party’s Confidential Information, or is rightfully obtained from third parties. If Provider uses, discloses, or otherwise engages in unauthorized activity with respect to any FFPTravels Content, Confidential Information, or Customer Personal Data, Provider shall be fully liable for all claims, fines, penalties, and damages of whatever kind arising from such acts.

 

16. Non-Exclusivity. Nothing herein shall be construed as creating an exclusive arrangement between the Parties. This Agreement does not restrict Provider from providing similar services to any third party or from entering into similar agreements with any other parties. 

 

17. General Provisions. 

 

17.1. Governing Law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the jurisdiction where FFPTravels is located, without regard to its conflict of law principles.

 

17.2. Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the Parties shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both Parties. If the Parties do not reach such solution within a period of thirty (30) days, then, upon notice by either Party to the other Party, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules.

 

17.3. Notices. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand, or mailed by first-class, registered or certified mail, return receipt requested, postage prepaid, or by overnight courier, and shall be deemed given upon delivery. Notices to FFPTravels shall be sent to the address specified on the FFPTravels Platform, and notices to Provider shall be sent to the address specified in the Provider Administration Site.

 

17.4. Amendments. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party to be charged.

 

17.5. Assignment. Neither Party may assign this Agreement or any rights or obligations under this Agreement without the prior written consent of the other Party, except that FFPTravels may assign this Agreement to any affiliate or successor-in-interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without Provider’s consent.

 

17.6. Independent Contractors. The Parties are independent contractors, and nothing in this Agreement shall be construed to create a partnership, joint venture, or employer-employee relationship between them.

 

17.7. Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect.

 

17.8. Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.

 

17.9. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.