These Supplier Terms and Conditions (“Agreement”) are entered into between Tourifique Travel Incorporated (“Tourifique ”), located at 210 -128 West Hastings Street, Vancouver, Canada, and Supplier. This Agreement incorporates the definitions in Exhibit A (“Definitions”) and the Platform Rules. 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 Tourifique Incorporated and Supplier. The relationship between a Supplier and a Customer is governed by the Supplier-Customer Contract.

1. Tourifique Incorporated Platform.  

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

2. Supplier Administration Site.  

Supplier may manage the Supplier Content, including Product Offers, on the Tourifique Platform using the Supplier Administration Site.

2.1. Supplier Creation.  

Supplier will provide to Tourifique all information required by Tourifique to establish and maintain the Supplier Account. This includes (i) insurance details in accordance with Section 11 below, (ii) current business license or registration information, (iii) details regarding Supplier’s Payment Account, and (iv) other information as reasonably requested by Tourifique. Supplier will keep this information up-to-date via the Supplier Administration Site.

2.2. Login Credentials.  

Supplier is responsible for maintaining the confidentiality and security of its Login Credentials and may not disclose the Login Credentials to any third party. Supplier is liable for all activities conducted in connection with its Supplier Account. Supplier must immediately notify Tourifique if Supplier knows or has reason to suspect 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 Supplier Account.

3. Sale of Services on the Tourifique Incorporated Platform.  

3.1. Product Offers.  

For each Service that Supplier wishes to sell via the Tourifique Platform, Supplier will upload a Product Offer using the Supplier 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 Tourifique. Supplier 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, Supplier shall provide this information to Customer as soon as possible. Tourifique reserves the right to introduce Content Modifications in line with Tourifique Content Guidelines.

3.2. Availability.  

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

3.3. Prices.  

Supplier 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 commission and Applicable Taxes. The Retail Price must include all expenses; Tourifique 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. Supplier may not collect (or attempt to collect) from a Customer any fees, taxes, dues, commissions, or other amounts not disclosed in the Product Offer. Tourifique will display the Retail Price in Supplier’s preferred currency, and may, in its sole discretion, display the Retail Price in any other currency and, when needed, rounding the Retail Price to an even number.

3.4. Conclusion of Contract.  

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

3.5. Payment Collection.  

Supplier instructs Tourifique as its commercial agent to collect payments from Customers in the name and on behalf of Supplier, and Supplier agrees that Tourifique Incorporated 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 Supplier. Supplier agrees that receipt of payment for the sum due from a Customer by Tourifique, or its Sub-Commercial Agen, as applicable, shall extinguish Customer’s payment obligation to Supplier. Supplier agrees that payment made by a Customer to Tourifique or its Sub-Commercial Agent, as applicable, through the Tourifique Platform shall be considered the same as a payment made directly to Supplier, and Supplier will provide Services to Customers in the agreed-upon manner as if Supplier had received the Customers’ funds directly. Supplier acknowledges and agrees that it shall have no recourse against a Customer once the funds are tendered to Tourifique or its Sub-Commercial Agent, as applicable.

Tourifique uses Stripe as 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. Tourifique will bear the credit card and banking fees for the receipt of payment from Customers, provided that Tourifique may charge Customers a foreign exchange fee if applicable. The payment will be collected in the currency indicated by Supplier in the Product Offer.

3.6. Changes.  

Customers occasionally make mistakes when making Bookings. Subject to availability, Tourifique 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 Tourifique.

3.7. Chargebacks and Disputes.  

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

3.8. Cancellations; No Shows.  

Supplier will not directly accept [“cancellations”] of Bookings from Customers; all cancellations must be made by a Customer through the Tourifique Platform or Tourifique customer service.

(a) During the Cancellation Period.  

If a customer cancels a booking for which he/she have already paid in advance, a refund will be processed in the following order:

• Payment within 24 hours will be refunded without a commission from the Operator using the same details as those from which the funds were paid.
• After 24 hours and up to 35 days before the start of the program, the payment is refunded in 100% of the prepayment minus the commission of the payment system (Operator) which can reach up to 3.5%.
• Booking cancellation within 34 to 16 days prior to the beginning of the Author’s tour in accordance with the Announcement is refunded in 50% of the prepayment minus the commission of the payment system (Operator), which may reach up to 3.5%.
• Cancellation of bookings less than 15 days before the beginning of the Author’s tour in accordance with the Announcement – prepayment is not refundable.

(b) After the Cancellation Period.  

If a Customer cancels a Booking after the 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, Tourifique may give the Customer a Full Refund.

(c) Force Majeure Situations.  

In the event that Supplier cancels Services because of a Force Majeure Situation, Supplier must notify Tourifique’s customer service department immediately. A Customer may cancel a Booking if a Force Majeure Situation occurs at the travel destination, regardless of whether Supplier continues to provide Services during the affected period of time. If Supplier or Customer cancels a Booking in connection with a Force Majeure Situation, Tourifique will give the Customer a Full Refund.

(d) No Shows.  

If a Customer is a No Show and there are no extenuating circumstances, the Booking will be treated as a Completed Booking for purposes of payment. If there are extenuating circumstances, Tourifique may give the Customer a Full Refund.

3.9. Provision of Services.  

Supplier will provide Services in accordance with the Product Offer, in good faith, and consistent with best practices and standards in the tours and activities industry. Supplier may subcontract performance of the Services only with the prior written consent of Tourifique.

3.10. Failure to Provide Services.  

If Supplier cancels a Booking or otherwise fails to provide Services to a Customer as required by a Booking, Tourifique will give the Customer a Full Refund. Supplier acknowledges that its cancellation or other failure to provide Services damages Tourifique’s goodwill and reputation, and causes Tourifique to incur additional customer service expenses. Accordingly, if Tourifique determines that the cancellation or failure to provide Services was not justifiable (e.g. the result of a Force Majeure Situation), Tourifique may deduct a cancellation fee (as liquidated damages), equal to twenty-five percent of the Retail Price of the Services for each affected Customer, from any future payment due to Supplier hereunder. The Parties acknowledge and agree that it would be impractical to estimate the amount of any damages that could arise out of Supplier’s cancellation or other failure to provide Services, and agree that the amount of liquidated damages described above is a reasonable estimate of the actual damages that Tourifique would suffer and incur as a result of such cancellation or failure to provide Services. Tourifique may, at its sole discretion, opt not to deduct this amount, or to deduct a lesser amount, if Supplier provides an alternative but equivalent Service at the same date to the affected Customers. For the avoidance of doubt, a cancellation resulting from Supplier’s failure to provide accurate Availability information on the Tourifique Platform and the failure to provide an invoice to the Customer shall constitute a failure to provide Services for purposes of this section. In addition to the remedies stated above, Tourifique Incorporated may terminate this Agreement for Supplier’s material breach if Supplier fails to provide Services as contracted.

4. Payment.  

4.1. Tourifique’s Commission.  

Supplier agrees to pay Tourifique Incorporated a Commission for (i) use of the Tourifique Platform, (ii) marketing performed by Tourifique, (iii) customer service performed by Tourifique, (iv) Tourifique ’s brokering of transactions between Supplier and Customers, and (v) other services performed hereunder by Tourifique. Tourifique’s Commission is a percentage of the Retail Price for a Booking, as specified in the Supplier Account. Supplier 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 Supplier.  

Tourifique will release the payout the day that the experience begins and whereas the minimum has been reached. The date that you’ll get the funds will depend on your financial institution and whether the payout is released on a weekend or bank holiday. Tourifique will transfer an amount to the Supplier’s Payment Account equal to the total amount collected from Customers less applicable Commission.

We offer three payout options:

(a) Bank Transfer  

We use Wise to process on bank transfer. Wise offer fast and secure payment options. You can be paid to in local currency (Not available to all countries) and USD(Recommended). See our Payout page for details on bank transfer options.

(b) Paypal

(a) Stripe  

4.3. Transaction Fees; Deductions.  

Supplier will bear any fees charged by Supplier’s own financial institution for the receipt of payments from Tourifique Incorporated or its Sub-Commercial Agent. Tourifique Incorporated or its Sub-Commercial Agent may deduct from any payment to Supplier the costs of refunds made to Customers, replacement services provided to Customers, or other amounts Supplier is required to pay or reimburse a Tourifique Party under this Agreement.

4.4. Taxes.  

Supplier 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 Supplier requires Tourifique Incorporated to collect Applicable Taxes on Supplier’s behalf, Supplier will inform Tourifique Incorporated regarding the applicable rate(s) and the Parties will cooperate to establish a method for such collection. If at any time Tourifique Incorporated determines that it is required to collect or deduct Applicable Taxes relating to Services, either on its own or on Supplier’s behalf, it will inform Supplier and collect or deduct such Applicable Taxes. Upon request from a Tourifique Party, Supplier will within five business days (i) provide that entity with Supplier’s valid tax identification or registration numbers, including where requested any business registration number, to demonstrate that Supplier 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 Supplier 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 Supplier’s compliance with tax obligations. Such information requests may be made directly to the Supplier or via the Supplier Administration Site. Any failure to comply with the requirements of this section may result in the temporary or permanent suspension of Supplier’s Services from the Tourifique Incorporated Platform.
In the event Applicable Law in a jurisdiction imposes VAT (or other Applicable Tax) on Commission, Tourifique Incorporated will deduct the amount of such VAT (or other Applicable Tax) from payments due to the Supplier, in addition to the Commission. Supplier 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.  

Tourifique Incorporated will provide Supplier 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 Supplier’s behalf for Completed Bookings, (iii) the total amount transferred to Supplier’s Payment Account for those Completed Bookings, (iv) the services performed by Tourifique Incorporated (“Commission”) and (v) the amount of sales or other taxes collected and remitted on Supplier’s behalf (if any). The Statement is the basis for payout by Tourifique Incorporated. Point (iv) serves as the invoice Tourifique Incorporated issues for the Supplier in relation to the services provided (“Commission Invoice”). Unless Supplier provides written notice to Tourifique Incorporated 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 Tourifique Incorporated’s sole discretion. Without prejudice to the foregoing, no dispute may be raised, and no claim, action or proceedings may be brought, against Tourifique Incorporated 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, Tourifique Incorporated and its Sub-Commercial Agent may postpone and accrue payments due to Supplier hereunder until the total amount payable is equal to at least $50.00 (or an equivalent amount in the specified currency). Tourifique Incorporated will transfer any accrued and unpaid amount to Supplier upon any termination of this Agreement.

4.7. Payment Withholding.  

Tourifique Incorporated and its Sub-Commercial Agent may postpone or withhold payments due to Supplier hereunder in case Supplier 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.  

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

5.2. Communication Tools.  

Supplier shall handle all Customer inquiries received through the Tourifique Incorporated Platform exclusively using the Communications Tools. Supplier may not provide or suggest alternative communication methods (i) in any Supplier Content, (ii) in any forum available via the Tourifique Incorporated Platform, or (iii) via the Communication Tools. Supplier must check its messages via the Communication Tools at least once per day, and shall respond to Customer inquiries within the following timelines:

• Customer contacts Supplier more than 7 days before the Services are scheduled to begin: Supplier must reply to Customer within 48 hours.
• Customer contacts Supplier between 2 and 7 days before the Services are scheduled to begin: Supplier must reply to Customer within 24 hours.
• Customer contacts Supplier less than 2 days before the Services are scheduled to begin: Supplier must reply to Customer before the Services begin.

Supplier must respond to inquiries made directly by Tourifique Incorporated within 24 hours. Supplier may not use the Communications Tools provided on the Tourifique Incorporated 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 Tourifique Incorporated Platform; or (e) transmit Prohibited Content. Supplier acknowledges that messages sent using the Communications Tools may be monitored for quality control purposes and stored by Tourifique Incorporated, and that Supplier has no expectation of privacy with regard to such messages. Tourifique Incorporated may delete any message that violates this Agreement.

5.3. Invoices.  

Upon request by a Customer, Supplier 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.  

Supplier agrees that the rates, availability, amenities, and restrictions for Services offered via the Tourifique Incorporated Platform will be equal to or better than those made available through Supplier’s own online booking platform. Customers who book a Service through the Tourifique Incorporated Platform will be treated at least as well as customers that book through Supplier’s own online booking platform.

5.5. Tickets and Receipts.  

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

5.6. Personnel Conduct.  

Supplier is solely responsible for the conduct of its personnel in connection with Customers or other persons. Supplier shall not, and shall ensure that its personnel shall not, discriminate against or harass any Customer, including but not limited to, 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  

Supplier will handle and respond to requests or complaints from Customers regarding the Services, complaints about Supplier personnel, and requests for refunds. In the event Supplier fails to respond to a Customer complaint within three Business Days, Tourifique Incorporated will give the Customer a Full Refund. In addition, a Tourifique Party will (i) offer customer support services to the Customer, (ii) act as an intermediary between Supplier and the Customer, (iii) answer and reply on behalf of the Supplier via the Customer service portal, social media or, if applicable, the communication channels provided on the Supplier Detail Page. In the event of Supplier’s noncompliance with the service levels in Section 5.4 or any material irregularity, complaint, or nonconformity with a Product Offer, a Tourifique 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 Supplier. If a Tourifique Party gives a Customer a partial refund, the amount paid to Supplier (and the Commission retained by Tourifique Incorporated) 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 Tourifique Incorporated Platform using Tourifique Incorporated’s review system. The aim of the review system is to gather meaningful and accurate feedback regarding the Services and Supplier in areas such as performance, reliability, and trustworthiness. Reviews can be viewed by any user of the Tourifique Incorporated Platform. All review content is the exclusive property of Tourifique Incorporated or the applicable Tourifique Party. Supplier may not use or distribute any reviews from the Tourifique Incorporated Platform without the prior written consent of Tourifique Incorporated. Customer reviews are not verified by Tourifique Incorporated for accuracy. Supplier 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. Tourifique Incorporated Obligations.  

Tourifique Incorporated 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, Tourifique Incorporated may use the Supplier Content and Supplier Marks in offline and online marketing, including email marketing and pay-per-click advertising. Tourifique Incorporated will, in its sole discretion, determine whether and how to promote the Services and Product Offers on the Tourifique Incorporated Platform or elsewhere, including position and ranking in search results. Notwithstanding anything to the contrary herein, Tourifique Incorporated may offer a Service at a price lower than the Retail Price stated in a Product Offer, provided that (i) the offer is limited to members of a Closed User Group and/or relating to a special event (e.g. public holiday or otherwise relevant event) and (ii) the full amount of the discount is deducted from the Commission that would normally be paid by Supplier.

6.2. Supplier Obligations.  

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

6.3. Supplier Communications.  

Supplier 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, Supplier shall not include any marketing or promotional content in any confirmation or other communication sent to Customers. Supplier 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.

7. Compliance.  

Supplier 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 Supplier’s business. Upon request by a Tourifique Party, Supplier 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, Supplier shall promptly cooperate, at its own expense, with any investigation by administrative authorities or associations.

8. Intellectual Property.  

8.1. Supplier Content.  

Supplier grants to Tourifique Incorporated 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 Supplier Content including (i) on or through the Tourifique Incorporated Platform, (ii) in online and offline marketing materials, and (iii) as otherwise contemplated by this Agreement or agreed by the Parties. Supplier is solely responsible for the Supplier Content, and may provide only Supplier Content that it either owns or otherwise has the right to provide to Tourifique Incorporated under the terms of this Agreement. Supplier shall not provide Supplier Content that is, contains, or references Prohibited Content. Tourifique Incorporated may remove from the Tourifique Incorporated Platform any Supplier Content that, in Tourifique Incorporated’s good faith determination, does or may violate this Agreement or Applicable Law. Alternately, Tourifique Incorporated may request Supplier to correct any such non-conforming Supplier Content within two days of notice. To assist consumers who speak different languages, Tourifique Incorporated may translate (or have translated) Supplier Content, in whole or in part, into other languages. Tourifique Incorporated cannot guarantee the accuracy or quality of such translations. If Supplier becomes aware of an inaccuracy in a translated version of a Product Offer or other Supplier Content, Supplier shall inform Tourifique Incorporated immediately. Tourifique Incorporated will on a regular basis sublicense Supplier Content to Distribution Partners.

8.2. Supplier Marks.  

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

8.3. Retention of Rights.  

The Supplier Content and Supplier Marks, and all worldwide Intellectual Property Rights therein, are the exclusive property of Supplier (and its suppliers). All rights in and to the Supplier Content and Supplier Marks not expressly granted to Tourifique Incorporated in this Agreement are reserved by Supplier (and its suppliers).

8.4. Tourifique Incorporated Materials.  

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

8.5. Restrictions.  

Supplier 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 Tourifique Incorporated Platform for any purpose; (ii) avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented to protect the Tourifique Incorporated Platform; (iii) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Tourifique Incorporated Platform; or (iv) take any action that damages or adversely affects, or could damage or adversely affect, the performance or proper functioning of the Tourifique Incorporated Platform.

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 Supplier.  

Supplier represents and warrants that (i) it is the owner of the Supplier Content, or otherwise has the right to provide the Supplier Content to Tourifique Incorporated under this Agreement; (ii) the Supplier 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 Supplier shall operate its business in compliance with, Applicable Law and industry-standard safety standards; (v) Supplier 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 Supplier’s business and the provision of Services; and (vi) any Supplier 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. The Tourifique Incorporated Platform and Tourifique Incorporated Content are provided “as is,” without warranty of any kind, either express or implied. Tourifique Incorporated does not warrant that (i) the Tourifique Incorporated Platform will meet all of Supplier’s requirements or that performance of the Tourifique Incorporated Platform will be uninterrupted, virus-free, secure, or error-free, or (ii) the Tourifique Incorporated Content will be complete, accurate, or free from technical defects or changes by unauthorized third parties. Tourifique Incorporated is not responsible for the accuracy or completeness of Customer-related data. Tourifique Incorporated does not guarantee that Supplier will sell a minimum amount of Services through the Tourifique Incorporated Platform. Tourifique Incorporated reserves the right to change, supplement or remove the contents of the Tourifique Incorporated 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), Supplier shall maintain a comprehensive general liability insurance covering risks related to Supplier’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, Supplier’s location, and industry standards. The policy must extend to indemnification claims tendered by the Tourifique Parties. If one or more automobiles is used in the performance of Services, Supplier shall maintain automobile liability insurance (i) with limits of not less than US$1 million (or an equivalent amount in Supplier’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 Tourifique Incorporated’s request, Supplier will add the Tourifique Parties as additional insureds to such insurance policies. Supplier must provide via the Supplier Administration Site (i) detailed information about the insurance provider and the insurance expiration date, and (ii) update the insurance information whenever Supplier changes its insurance or the prior certificate expires. Supplier must inform Tourifique Incorporated regarding any change in the required insurance policies, including non-renewal thereof. Upon request, Supplier shall provide Tourifique Incorporated a copy of the applicable insurance policy and proof of payment of the relevant premiums.

12. Liability.  

Tourifique Incorporated shall be liable to Supplier solely for (i) any damage to Supplier due to Tourifique Incorporated’s willful or grossly negligent act, (ii) any damage to Supplier‘s life, body, or health due to Tourifique Incorporated’s simple negligence, and (iii) any damages to Supplier due to Tourifique Incorporated’s breach of its material obligation under the Agreement. In case of Tourifique Incorporated’s breach of its material obligation due to simple negligence, Tourifique Incorporated’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 Tourifique Incorporated’s proper performance of this Agreement and on whose compliance Supplier may regularly rely. Any further liability for damages is excluded. Without limiting the foregoing, Tourifique Incorporated shall not be liable for damages which occur due to interruptions or restrictions of the operation of the Tourifique Incorporated Platform due to necessary maintenance work, force majeure, or other events for which Tourifique Incorporated is not responsible. Tourifique Incorporated 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 Tourifique Incorporated be liable to Supplier for any acts or omissions of any Distribution Partner. Supplier’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 Tourifique Incorporated and Supplier act separately as data controllers. Customer Personal Data collected by Tourifique Incorporated may only be transferred to Supplier to the extent necessary for the performance of the Services and in compliance with data protection transfer mechanism. Supplier shall comply with all applicable Data Protection Laws when processing (including accessing, collecting, storing, transmitting, and transferring) Customer Personal Data. Supplier 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 Tourifique Incorporated’s request, Supplier will provide evidence that Supplier 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.  

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

13.3. Development.  

Tourifique Incorporated may transfer data relating to Supplier to Distribution Partners and third parties as necessary to further develop the Tourifique Incorporated Platform (including its interfaces to third party products and services) and to promote the Services. For example, Tourifique Incorporated may transfer the necessary data to (i) promote the Services via a third party’s web mapping service, listing service, search engine service, or digital assistant, or (ii) develop and implement relevant interfaces between the Tourifique Incorporated Platform and such products and services.

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.  

Either Party may terminate this Agreement at any time for convenience effective upon 30 days notice. A termination can be done automatically by using the appropriate function in the Supplier Account. Remaining confirmed bookings shall be executed as planned or otherwise treated according to Section 14.5.

14.3. Termination for Cause.  

Either Party may terminate this Agreement by written notice to the other if the other Party breaches or is in default of any obligation hereunder which breach or default is incapable of cure or which, being capable of cure, has not been cured within fifteen (15) days after receipt of notice of such breach or default (or such additional cure period as the non-defaulting Party may authorize in writing).

14.4. Other Remedies.  

In addition to the remedies stated above, if Tourifique Incorporated reasonably believes that Supplier is in breach of this Agreement, or that Customers or other suppliers are at risk from Supplier’s actions, Tourifique Incorporated may take one or more of the following actions: (i) issue a warning to Supplier; (ii) remove Product Offers or other Supplier Content from the Tourifique Incorporated Platform; (iii) temporally restrict Supplier’s use of the Tourifique Incorporated Platform; (iv) cancel some or all Bookings and give any affected Customers a Full Refund, regardless of the normal cancellation policies; (v) stop accepting Bookings, and (vi) withhold payout of Supplier’s Completed Bookings. In addition, if Tourifique Incorporated determines that the Services are associated with an excessive number of Chargebacks or fraudulent transactions, Tourifique Incorporated may temporarily remove the associated Product Offers.

14.5. Effect of Termination.  

The terms of this Agreement, except Sections 2.2, 3.6, 6.1 14.2, and 14.3, shall remain in effect until all Remnant Bookings are resolved (i.e. all Remnant Bookings have either become Completed Bookings or have been cancelled), provided however that Tourifique Incorporated shall make no new Bookings after the termination date of this Agreement. At Tourifique Incorporated’s option, it may cancel some or all Remnant Bookings and offer affected Customers either a Full Refund or alternative services. Any Remnant Booking that is not cancelled will be performed as scheduled. Sections 8.1 and 8.2 will survive termination of this Agreement for 90 days with respect to materials provided to Distribution Partners or marketing partners. Once all Remnant Bookings are resolved, Tourifique Incorporated will remove all Supplier Content and Supplier Marks from the Tourifique Incorporated site, and Sections 4.4, 8.1 (solely with regard to marketing materials created prior to the termination of the Agreement), 8.3, 8.4, 9.3, 10, 12, 13, 14.5, 17.2, 17.7-17.9, and Exhibit A shall continue to survive termination of this Agreement.

15. Travel Agencies.  

Notwithstanding anything to the contrary herein, certain Distribution Partners included in the Tourifique Incorporated Platform may operate as Travel Agencies. For sales made via Travel Agencies, (i) the Customer purchases Services from the Travel Agency, (ii) the purchase may be governed by the Travel Agency’s terms and conditions, (iii) the Travel Agent may collect payment from the Customer (in which case the Travel Agent will act as a payment collection agent for Supplier, and the first three sentences of Section 3.5 and the third sentence of Section 3.7 shall apply to the Travel Agent instead of Tourifique Incorporated), (iv) the Travel Agent may, in lieu of Tourifique Incorporated, provide customer service to Customers, including giving partial or full refunds or providing alternative services, (v) the Retail Price shall be the amount collected by Tourifique Incorporated from the Travel Agency, and (vi) the phrases “charged to Customers” and “collected from Customers” in Section 4 shall be deemed to mean “charged to Travel Agents” and “collected from Travel Agencies,” respectively.

16. Connectivity.  

16.1. Connectivity Partners.  (Future Implementation)

If Supplier chooses to work with a Connectivity Partner to connect to Tourifique Incorporated’s systems, this section shall apply. Supplier agrees that Tourifique Incorporated may send Supplier’s Confidential Information and information about Bookings to the Connectivity Partner. Supplier will (i) obtain for Tourifique Incorporated the right to use the Connectivity Partner’s API as required for this Agreement; (ii) require the Connectivity Partner to provide Supplier and Tourifique Incorporated all technical support necessary to ensure the error-free operation of the API; (iii) ensure that the Connectivity Partner will not charge Tourifique Incorporated any fees; (iv) require the Connectivity Partner to execute a confidentiality agreement with Supplier that extends to Tourifique Incorporated’s Confidential Information, and is at least as protective of Tourifique Incorporated’s Confidential Information as the provisions of this Agreement; (v) ensure that the Connectivity Partner does not use any of Tourifique Incorporated’s Confidential Information or any information transmitted between Tourifique Incorporated and Supplier via the API, (a) for any competitive purpose, (b) to perform data analytics, or (c) for any purpose other than to enable Tourifique Incorporated to provide the services described in this Agreement; (vi) ensure that the Connectivity Partner maintains all safeguards required by best practices against the destruction, loss, alteration, unauthorized access, or disclosure of any information passed between Tourifique Incorporated and Supplier via the API; and (vii) enter into an industry standard data processing agreement with the Connectivity Partner, if required. Supplier agrees that Tourifique Incorporated will not be responsible for any losses or damages arising from or in connection with any failure of connectivity or the acts or omissions of the Connectivity Partner. In case Supplier chooses to grant access to a Connectivity Partner to manage their Supplier Content, the Supplier’s obligations shall also apply to the Connectivity Partner.

16.2. Supplier API. (Future Implementation)

If Supplier chooses to connect to Tourifique Incorporated’s systems via Supplier’s own API, this section shall apply. Supplier (i) hereby grants Tourifique Incorporated the right to use the Supplier’s API as required for this Agreement; (ii) will provide Tourifique Incorporated all technical support necessary for the error-free operation of Supplier’s API; and (iii) will maintain all safeguards required by best practices against the destruction, loss, alteration, unauthorized access or disclosure of any information passed through its API.

17. General.  

17.1. Non-Exclusive Relationship.  

The relationship between Supplier and Tourifique Incorporated is non-exclusive. Supplier may sell services through other marketplaces (including competitors of Tourifique Incorporated), and Tourifique Incorporated may promote and offer services substantially similar to or competitive with Services.

17.2. Governing Law.  

This Agreement shall be governed by and construed in accordance with the provisions of German law under exclusion of its conflict of law rules. The place of performance and exclusive legal venue for any disputes arising from or in connection with the performed services shall be Berlin provided that the Supplier is a merchant or legal person under public law or has no place of business or domicile in the Federal Republic of Germany.

17.3. Amendments.  

Tourifique Incorporated may deliver proposed amendments to this Agreement to Supplier by any reasonable means (including via email, via the Communication Tools, or via a notice on the Supplier Administration Site) at least four weeks prior to the proposed Amendment Effective Date. Supplier may reject a proposed amendment by sending a notice of rejection to Tourifique Incorporated, in the manner specified, before the proposed Amendment Effective Date. If Supplier does not send such a notice of rejection to Tourifique Incorporated before the proposed Amendment Effective Date, Supplier shall be deemed to have agreed to the proposed amendment. Except as set forth in this section, all amendments or modifications to this Agreement must (i) be in writing, (ii) refer to this Agreement, and (iii) be executed by an authorized representative of each Party.

17.4. Assignment.  

Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, (i) either Party may assign this Agreement in its entirety, without consent of the other Party, (a) to an affiliate of that Party, or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party, and (ii) Tourifique Incorporated may delegate or assign any right or remedy under this Agreement to a Tourifique Party. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their successors and permitted assigns.

17.5. Notices.  

Any notice under this Agreement will be in writing and delivered by personal delivery, overnight courier, confirmed facsimile, confirmed email, or certified or registered mail. In addition, Tourifique Incorporated may send notices to Supplier using the Communication Tools. Notices will be sent to a Party at its address set forth in this Agreement or such other address as that Party may specify in writing pursuant to this section.

17.6. Force Majeure.  

If either Party is prevented from performing any of its duties or obligations hereunder in a timely manner by a Force Majeure Situation, the afflicted Party, upon giving prompt notice to the other Party, shall be excused from such performance (i) to the extent that the afflicted Party is prevented from performing such duties or obligations, (ii) for the duration of the disruption caused by the Force Majeure Situation. If a Force Majeure Situation detrimentally affects a Party’s performance for fourteen days or longer, the other Party may terminate this Agreement.

17.7. Interpretation.  

In this Agreement, (i) “including” means “including but not limited to,” and (ii) general words shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things. Captions and section headings used in this Agreement are for convenience only and are not a part of this Agreement and shall not be used in construing it. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. Each Party has participated equally in the preparation and negotiation of this Agreement, and waives to the fullest extent permitted by law any rule of interpretation or construction requiring that this Agreement be interpreted or construed against the drafting Party.

17.8. Confidentiality.  

Each Party agrees that it will not use or disclose to any third party any Confidential Information disclosed to it by the other except (i) as permitted in this Agreement, or (ii) as required by a court or other governmental authority. Tourifique Incorporated may disclose Confidential Information to the Tourifique Parties. Each Party will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other Party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.

17.9. Miscellaneous.  

The Parties are independent contractors, and no partnership, franchise, joint venture, or employment relationship is intended or created by this Agreement. Tourifique Incorporated and any subagents disclaim, and Supplier waives, any duty arising from the creation of an agency relationship (including any duty of loyalty or care), to the maximum extent permitted by Applicable Law. Except as otherwise expressly provided herein, all remedies provided for herein are cumulative, in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise. The Tourifique Parties are expressly named as third party beneficiaries to this Agreement, and each of the Tourifique Parties has the right to enforce this Agreement against Supplier as this Agreement pertains to its respective rights as a third party beneficiary, including the service levels specified in Section 5.4. Except as provided in this section, all rights and obligations of the parties hereunder are personal to them and this Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party. This Agreement sets forth the entire understanding and agreement of the Parties, and supersedes (i) any and all oral or written agreements or understandings between the Parties, as to the subject matter of the Agreement, and (ii) any terms and conditions governing the use of Supplier’s or a Connectivity Partner’s API. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

Exhibit A: Definitions