Terms and Conditions
QUOTE AND BOOKING TOOL AGREEMENT
This Agreement (“Agreement”) describes the terms and conditions applicable to a participating independent contractor’s (“IC”) use of the Worldview quote and reservation booking tool for cruise, air and other travel products and services(“Tool”), which provides IC with the ability to (i) shop, secure quotes and book reservations for a cruise product, air tickets and other travel services (a “Booking”) of Suppliers (as hereinafter defined); (ii) provide certain travel information (including quotes, reservation information and client invoices in regard to a Booking); (iii) provide commissions payable to IC in regard to a cruise, and/or air tickets and/or other travel products and services (“travel products”) that may be of interest to IC’s client and (iv) provide other services and functions with participating suppliers that use applicable global distribution systems (“Suppliers”) that Worldview may elect to add or modify from time to time. The combination of the Tool and the Travel Products available through the use of the Tool is referred to collectively as the (“Services”). The Services are made available to IC by W.V.T. Inc. carrying on business as Worldview Travel and its affiliates (herein “Worldview” or “Company”), and certain Suppliers, via the portal authorized by Worldview located at adx.Worldview.com. For ease in drafting, the term “Worldview” shall include Worldview, its affiliates and the Supplier(s) providing the Services under this Agreement.
For greater certainty, this Agreement is in addition to the Independent Contractor Agreement entered into by the IC and Worldview (the “IC Agreement”). This Agreement does not in any way amend, alter, supersede or otherwise effect the provisions of the IC Agreement including the commissions payable thereunder to the IC or the obligations of the IC under the IC Agreement.
TERMS AND CONDITIONS OF THIS AGREEMENT
1. Services. Worldview hereby grants IC a personal, limited, nonexclusive, non-transferable, royalty-free license to access and use the Services. IC hereby represents and warrants that, when using the Services, it will (a) comply with the terms of this Agreement, as it may be amended from time to time; (b) be responsible for any equipment and software necessary to access the Services; (c) use the Services only in connection with legitimate transactions and without limiting the generality of the foregoing, IC shall not use the Services for (i) speculative booking; (ii) improper creation or modification of records; (iii) reservation of space in anticipation of demand; (iv) transmission of personal messages other than by an electronic mail system; (v) disclosure of the Tool and those Services which are not expressly permitted to be disclosed in this Agreement, to persons other than your employees and consultants who have signed non-disclosure agreements covering the Tool and such Services; (vi) developing or publishing any booking tool; (vii) assessing the Services through third party products that are not expressly authorized by Worldview; (d) immediately inform Worldview of any occurrence or circumstance that arises which could reasonably lead to a claim being asserted against Worldview; and (e) comply with all other laws applicable to IC’s use of the Services. IC will be given a password to access the Services, which IC may change. It is IC’s sole responsibility to keep the password confidential and IC is, therefore, fully responsible for any consequences of not doing so.
2. Content and Inventory. The Services provided under this Agreement will enable IC to locate and transact business with Suppliers through the Services. The travel product content and inventory information available through the Services will not be verified or confirmed by Worldview, and ALL SUCH INFORMATION IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. As between IC and Worldview, Worldview will have sole control over the management of the Services.
3. Use Restrictions. IC will not use any robot, spider, or other automated device (“Automated Device”) to access or use the Services in any way. IC will not copy, reproduce, alter, modify, create derivative works from, or publicly display any content from the Services, or otherwise use the Services in any way not expressly authorized by this Agreement, without the prior express written permission of Worldview. IC will not reverse engineer, decompile, disassemble, decrypt, extract portions of, or translate the Services, except as permitted by applicable law. IC agrees not to “frame” or “mirror” any content or information contained on or accessible from the Services on any other server or Internet-based device without the prior written authorization of Worldview. IC further warrants and agrees that, while using the Services, IC will not upload, post, transmit, publish, or otherwise distribute through the Services any materials other than those materials that are generated by the Services for use by the IC or its client, and IC will not commit any acts that: (a) are unlawful, threatening, harassing, obscene, or profane, (b) restrict or inhibit any other user from using and enjoying the Services, (c) commit or encourage conduct that would constitute a criminal offense or give rise to civil liability, or (d) contain a virus or other harmful components, advertising of any kind, or false or misleading indications of origin or statements of fact. IC also warrants and agrees that, while using the Services, IC will not post or transmit (i) any bulk e-mails, advertisements, solicitations, offers for sale of goods or services, chain letters, pyramid schemes, investment opportunities or schemes, or other unsolicited commercial communications (except as otherwise expressly permitted herein), or (ii) engage in email spamming or flooding.
4. Bookings made through the Services. Worldview’s sole responsibility with respect to the Services is to enable the IC to access the travel product inventory made available through the Services and to generate quotes, commission rates, and Bookings (including a client invoice) based upon such inventory.
5. Fees, Payments, and Taxes. Any fee, commission or compensation payable to the IC as the result of a Booking, and any taxes payable by IC relating thereto shall be determined and paid to IC in accordance with the IC Agreement. Worldview assumes no responsibility for payment to IC of any fees or commissions except as set forth in the IC Agreement.
6. Change and Cancellation Fees. If the Client cancels or modifies the booked travel products, applicable Suppliers may also charge a change or cancellation fee as set forth in such Suppliers’ Terms and Conditions
7. Modifications to Services. Worldview reserves the right, for any reason, in its sole discretion and at any time, to terminate, change, upgrade, or suspend any aspect of the Services, including but not limited to content, features, functions, methods of access, or hours of availability. Worldview may impose limits on certain features of the Services or restrict IC’s access to part or all of the Services without notice or penalty.
8. Termination. If IC breaches any term or condition of this Agreement or the IC Agreement, or if Worldview believes that IC’s actions may cause legal liability for IC, Worldview’s users, or Worldview, Worldview will promptly give notice to the IC, and may temporarily or indefinitely suspend IC’s ability to use the Service, and/or terminate this Agreement. Whatever actions Worldview decides to take will not limit Worldview in pursuing any other legal or equitable remedies available to Worldview. Upon termination of this Agreement for any reason, IC will cease access and use of the Services. Otherwise, either party may terminate this Agreement upon ten (10) days’ notice to the other party.
9. Proprietary Rights. Worldview and the Suppliers retain all right, title, and interest in and to their respective portions of the Services and any enhancements thereto, including without limitation graphical designs, names, icons, interfaces, and other design elements (i.e., the selection and arrangement of materials therein and the “look and feel” thereof).
10. Confidentiality. IC acknowledges that by reason of its relationship with Worldview under this Agreement it will have access to Worldview’s Confidential Information. IC agrees to maintain in confidence all Confidential Information received from Worldview, both oral and written, and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party. IC agrees to use the Confidential Information only for the purpose of performing this Agreement. IC acknowledges and agrees that, subject to applicable law, Worldview may use and distribute aggregate statistical and marketing information from which the identity of IC or its customers cannot be determined through the use of reasonable efforts. For purposes of this Agreement, “Confidential Information” shall mean the Tool and those Services which are not expressly permitted to be disclosed in this Agreement and all information and materials concerning Worldview’s business, plans, pricing, technology, data and products that are confidential and of substantial value to Worldview, which value would be impaired if such information and materials were disclosed to third parties. For purposes of this Agreement all information and materials relating to the technology utilized in the Services shall be deemed confidential. This Section 10 shall survive the expiration or termination of this Agreement.
11. Indemnification. IC will, at IC’s expense, indemnify, defend and hold Worldview and Worldview’s employees, agents, successors, directors, officers, subsidiaries, affiliates, Suppliers and assigns harmless from any suits, losses, claims, demands, liabilities, costs, and expenses (including attorneys’ fees and amounts paid to settle any claims), threatened, made, or filed by any third party resulting from or arising out of (i) IC’s use of the Services, (ii) IC’s failure to comply with any applicable laws and regulations, and (iii) IC’s breach of this Agreement. Worldview will provide IC with prompt written notice of any such claim, and will allow the IC to control the defense and settlement of such claim, and provide IC with proper and full information and assistance at IC’s expense to settle and/or defend any such claim. IC agrees not to settle any action, claim, or demand on Worldview’s behalf without Worldview’s prior written consent. Worldview will have the right to participate in the defense and hire counsel of its choice.
12. Disclaimer or Warranties. IC’S USE OF THE SERVICES IS AT IC’S SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. NEITHER WORLDVIEW NOR ITS SUPPLIERS MAKE ANY WARRANTIES WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES THAT: (I) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR VIRUS FREE, (II) THE SERVICES WILL MEET IC’S REQUIREMENTS, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES ARE ACCURATE OR RELIABLE, AND (IV) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. WORLDVIEW ALSO EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSES, PERFORMANCE, TITLE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, QUIET ENJOYMENT, SYSTEM INTEGRATION, DATE ACCURACY, AND ANY WARRANTIES OR CONDITIONS ARISING BY STATUTE OR OTHERWISE IN LAW, EQUITY, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. IC MAY HAVE OTHER LEGAL RIGHTS RELATING TO THIS AGREEMENT, WHICH MAY VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
13. Limitation of Liability. IN NO EVENT SHALL WORLDVIEW OR ITS SUPPLIERS BE LIABLE TO IC OR ANY OTHER PERSON UNDER ANY LEGAL THEORY OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY, TORT, OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, SALES, REVENUE, USE, DATA, HARDWARE, SOFTWARE, OR GOODWILL; INTERRUPTION OF BUSINESS; ANTICIPATED OR LOST PROFITS; OR THIRD PARTY CLAIMS) THAT ARISE OUT OF OR IN CONNECTION WITH IC’S USE OF OR INABLITY TO USE THE SERVICES. WORLDVIEW’S TOTAL AGGREGATE LIABILITY TO IC OR ANY OTHER PERSON FOR ACTUAL, DIRECT DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT WILL NOT EXCEED ONE HUNDRED DOLLARS ($100) AND IC AGREES TO BE RESPONSIBLE FOR ANY LIABILITY EXCEEDING SUCH AMOUNT. IC ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY WILL APPLY WHETHER OR NOT WORLDVIEW IS GIVEN NOTICE OF THE POSSIBLITY OF SUCH DAMAGES. BECAUSE SOME STATES/ JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO IC.
14. Assignment. IC may not assign this Agreement or any of IC’s rights or obligations under it without Worldview’s prior written consent. Any attempted assignment without Worldview’s consent will be void and will cause this Agreement and IC’s right to use the Services to terminate immediately and without notice from Worldview. This Agreement and the rights and obligations of Worldview and IC under it will be binding on Worldview’s successors and assigns, and IC’s successors and assigns that Worldview authorizes with prior written consent.
15. Relationship. IC has only the rights set forth in this Agreement to use the Services. This Agreement creates no relationship between Worldview and IC other than as expressly stated herein. Specifically, this Agreement creates no relationship between IC and Worldview of independent contractors (which is the subject matter of the IC Agreement), partners, joint ventures, fiduciaries, agents or employees.
16. Responsibility for Other Parties. Worldview is not responsible for the travel products sold through the Services, it being understood that the Suppliers thereof are solely responsible for fulfillment, customer service and all other issues that may arise relating thereto. For the purposes of this provision, IF A PASSENGER USING A CONFIRMED RESERVATION MADE BY IC THROUGH THE SERVICES IS REFUSED SERVICE BY THE SUPPLIER DUE TO AN OVERSALE OR THE LACK OF RECORD OF SUCH RESERVATION OR OTHERWISE, THE SOLE REMEDY OF IC WILL BE THAT PROVIDED FOR BY SUCH SUPPLIER IN ITS TARIFF OR THE TERMS AND CONDITIONS OF THE SUPPLIER’S CONTRACT APPLICABLE TO IC AND/OR THE PASSENGER.
17. Waiver. Worldview’s waiver of any particular breach or of any particular act or omission of noncompliance with any requirement of this Agreement shall not constitute a waiver of any other breach or act or omission of noncompliance with any requirement of this Agreement.
18. Governing Law/Arbitration. To the extent not expressly prohibited by local law, this Agreement and its performance shall be governed by the laws of the State of California, United States of America, without regard to its conflict of laws provisions, and by applicable federal laws of the United States. In the unlikely event of a dispute or claim between IC and Company, its employees or agents, having anything to do with IC’s relationship with Company or the interpretation or enforcement of this Agreement, IC and Company mutually agree that all such claims will be settled by binding arbitration. As a result, IC and Company give up the right to have the dispute decided in civil court by a jury. Instead, it will be resolved by an impartial arbitrator whose decision will be final, without right of appeal. The arbitration will be held in Orange County, California. The parties will be permitted to engage in reasonable discovery prior to the arbitration. Following a hearing conducted by a single arbitrator, the arbitrator shall issue a signed and dated written opinion which shall decide all issues submitted. The arbitrator shall award only those remedies which are authorized by law and requested by the parties, and which the arbitrator determines to be supported by credible, relevant evidence. Unless otherwise provided by law, the parties will be responsible for their own attorney’s fees and expenses. The cost of the arbitrator will be shared equally between IC and Company. To the extent allowed by applicable law, any claim or cause of action arising from or relating to IC’s access or use of the Services must be commenced by way of arbitration as set forth above within two (2) years after the date on which such claim or action arose or accrued.
19. Notices. Notices and other communications given or required under this Agreement will be deemed delivered if sent via E-mail or transmitted by facsimile, to the parties at: servicedesk@Worldview.com.
20. Entire Agreement. This Agreement constitutes the entire agreement between Worldview and IC with respect to the Services, and supersedes all prior agreements between Worldview and IC. No oral statements, promises, or agreements will alter the terms of this Agreement. If any provision of this Agreement is held unenforceable, the unenforceable provision will, at Worldview’s option, be severed from this Agreement, or construed in accordance with applicable law as nearly as possible to reflect Worldview’s and IC’s mutual original intent, and all other provisions will remain in full force and effect. However, if in Worldview’s opinion such severance or construction of such provision would frustrate the purpose of this Agreement, then Worldview may terminate this Agreement. This Agreement shall also inure to the benefit of Worldview’s Supplier of the Services, who shall be entitled to enforce the terms and conditions of this Agreement against IC as a third party beneficiary. This Agreement is in addition to IC Agreement and does not in any way amend, alter, supersede or otherwise effect the provisions of the IC Agreement including the commissions payable thereunder to the IC or the obligations of the IC under the IC Agreement.
a) Modification of Agreement. This Agreement may be modified only by Worldview, at any time without notice. The terms and conditions may be accessed via the Services. Any such modifications shall become effective immediately upon posting. By logging in, accessing, and/or using the Services, IC agrees to review this Agreement periodically to learn of and be in compliance with, any modified terms and conditions.
b) Acceptance of Agreement. BY SELECTING OR CLICKING THE “I AGREE” BUTTON BELOW, OR BY ACCESSING OR USING THE SERVICES, IC ACKNOWLEDGES AND AGREES THAT (1) AN AUTHORIZED REPRESENTATIVE OF IC HAS READ AND UNDERSTANDS THIS AGREEMENT, (2) IC ACCEPTS THIS AGREEMENT IN ITS PRESENT FORM AND AS IT MAY BE MODIFIED BY WORLDVIEW FROM TIME TO TIME, (3) IC AGREES TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN, AS WELL AS BY THE TERMS AND CONDITIONS OF ANY MODIFIED VERSION(S) OF THIS AGREEMENT, AND (4) IC ACCEPTS THIS AGREEMENT ON BEHALF OF ITSELF AND ITS EMPLOYEES AND INDEPENDENT CONTRACTORS, AND WILL ASSURE THAT THE IC AND ITS INDEPENDENT CONTRACTORS WILL COMPLY WITH THIS AGREEMENT. AFTER CLICKING THE “I AGREE” BUTTON BELOW, IC CAN REGISTER TO USE THE SERVICES. THE SERVICES CAN THEN BE ACCESSED AND IC MAY USE THE SERVICES, SUBJECT TO THIS AGREEMENT.
c) Refusal of Agreement. IC DOES NOT AGREE TO THE AGREEMENT IF IC CLOSES THE AGREEMENT BOX WITHOUT SELECTING I ACCEPT. IN DOING SO, IC IS NOT AUTHORIZED TO ACCESS OR USE THE SERVICES.