STANDARD TERMS AND CONDITIONS
1. SCOPE. These Standard Terms and Conditions and all documents referenced herein (this “Agreement”) is entered into as of the date signed on the applicable Order Form between Adventure Office, and the party identified on the Order Form as “Client” (referred to herein as “you”, “your” or “Client”). The terms and conditions of this Agreement will apply to each business transaction between the parties for the provision of services and software by Adventure Office.
2. REPRESENTATIONS AND WARRANTIES BY CLIENT. Client represents and warrants that (A) it has and shall have full right and authority to enter into this Agreement and (B) its use and its customers’ and other third-party users’ use of the Services and the Client Data (as defined below) shall not violate the terms of or data rules.
3. PROVIDER SERVICES. Subject to Adventure Office’s acceptance of your order and your timely payment of all applicable fees, Adventure Office will use reasonable efforts to provide the services (the “Services”) ordered by Client pursuant to Adventure Office’s standard ordering form(s) (the “Order Form”). The Services available to Client include: (A) “Adventure Office” Software Application (the “AO Software”) which allows management of Client’s travel- related products and services; the license for the AO Software includes Client usage of Adventure Office’s system for real-time travel inventory management and reservation processing and secure hosting and storage of Client data on equipment supplied by Adventure Office and/or its suppliers; (B) “Adventure Web” Online Transaction Processing Infrastructure – Computer interface which provides internet users access to Client’s travel-related products and services via Client’s own web site; and/or (C) Adventure Web including Client usage of software specified by Adventure Office to be coded within Client’s web-site (to be added by Client at your expense) which allows a visitor to select and purchase Client inventory items and enables Client’s website visitors to research and financially complete a purchase transaction at Adventure Office’s secure website.
4. THIRD PARTY SERVICES. The Services to be provided by Adventure Office may include a limited right to use software or other services provided by third parties pursuant to marketing or licensing agreements between Adventure Office and such third party providers. The provisions herein regarding ownership and licensing of products and services are subject to, and limited by, any separate agreements between Adventure Office and such third party providers. These third party services include without limitation the ezWaiver software program. Adventure Office shall not be responsible or liable for issues or performance problems with such third party products or services which are caused by the third party providers and that are beyond the control of Adventure Office. This disclaimer and limitation is in addition to the general limitations and disclaimers set forth herein.
5. DISTRIBUTION SERVICES. The Services may also include marketing and resale of Client Travel Services through authorized distribution programs (each a “Distribution Partner Program”). Distribution Partner Programs may include, but not be limited to, third-party internet sites where (A) travelers can directly book reservations and/or purchase tickets or vouchers or (B) travelers can link to Adventure Office’s website for booking reservations and/or purchasing tickets or vouchers. Client’s participation in a Distribution Partner Program will be conditioned upon acceptance of any and all additional terms and conditions that may be applicable to such program (as may be set forth in separate terms and conditions in addition to those contained herein). Client agrees that the pricing offered on Client Travel Services made available through the Distribution Partner Program(s) shall be equivalent to or lower than the price being offered by Client to its other customers purchasing similar services based on similar volume, seasonality and availability.
6. CLIENT OBLIGATIONS. You agree to: (A) accurately describe the travel services you offer and which Adventure Office will in turn offer on your behalf (“Client Travel Services”); (B) use best efforts to provide the Client Travel Services to the satisfaction of customers; (C) maintain all Client data in the system such that it is always current and representative of actual inventory available to be sold on Client’s behalf; (D) maintain, at your expense, the infrastructure necessary to make use of the Services, including, but not limited to, computers and adequate internet access; (E) make timely payment of all applicable fees due under this Agreement and the Order Form(s); and (F) maintain, at your expense, mechanisms necessary for Adventure Office to facilitate financial transactions on Client’s behalf, including, at a minimum, a merchant account capable of online credit card processing through a processing gateway approved by Adventure Office.
7. LICENSE GRANT. Subject to your timely payment of all applicable fees, Adventure Office grants Client a non-transferable, non- sub-licensable, non-exclusive license during the term of this Agreement to access Adventure Office’s website and use the software hosted on the site (the “Software”) solely for Client’s internal business purposes in connection with Provider’s provision of the Services. Client shall make no attempt to: (A) modify, adapt, alter, translate, or create derivative works from the Software; (B) sublicense, distribute, sell or otherwise transfer the Software to any third party; (C) use the Software in any service bureau or time sharing arrangement; (D) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software or (E) otherwise use or copy the Software except as expressly permitted under this Agreement. The Software is licensed and not sold and is protected by copyright, trademark and trade secret laws and international treaty provisions.
8. UPGRADES; SUPPORT. Subject to your timely payment of all applicable fees, Adventure Office will use reasonable efforts to maintain, correct and support the Services and Software at no additional charge. Adventure reserves the right to add features, modules or otherwise upgrade the Software. Use of such upgrades may be subject to additional charges.
9. CLIENT CONTENT. You agree that you will not use any Services or the Software to: (A) submit, post, upload or otherwise transmit content or data that contains viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer; (B) submit, post, upload, utilize or otherwise transmit any content or data through the Services or Software that is defamatory, libelous, abusive, tortious, harassing, vulgar, obscene, pornographic or otherwise indecent; (C) submit, post, upload or otherwise transmit any content or data that infringes or otherwise violates the rights of any third party, including without limitation privacy rights, copyright rights, and other proprietary rights; (D) impersonate, or otherwise misrepresent your affiliation with, any other person or entity; (E) falsify or delete any attributions, legends, or other proprietary designations of the origin or source of Software or other Adventure Office content or contained in a file that is uploaded; (F) collect or store personal data about other users not affiliated with Client or Client’s customers; or (G) violate any applicable local, state, federal, or international law or regulation.
10. CONTENT. Adventure Office does not claim ownership rights in any Client content or data; provided, however, Client recognizes that information regarding Client’s customers are not necessarily exclusive to Client as such customers may be common customers of Adventure Office or its other clients. For the sole purpose of enabling Adventure Office to provide the Services, you grant to Adventure Office a non-exclusive, royalty-free license to use, copy, distribute, and display the Client content and/or data, including without limitation, images, pictures and graphics from Client’s website. Adventure Office reserves the right to remove, delete, move or edit Client content or data that it, in its sole discretion, deems abusive, defamatory, obscene, in violation of the law, including but not limited to copyright or trademark law, or otherwise unacceptable. Client is entirely responsible for all Client content or data and Adventure Office will not be liable for any such Client content or data. Client agrees to indemnify and hold Adventure Office harmless for any violation of this provision. Notwithstanding anything contained herein to the contrary, all user data, including, without limitation, use and traffic data concerning users who access Adventure Office’s website, whether by linking through a Distribution Partner Program or otherwise, is exclusively owned by Adventure Office and may be used by Adventure Office for any lawful purpose.
11. OWNERSHIP OF INTELLECTUAL PROPERTY. All site software, design, text, images, photographs, illustrations, audio clips, video clips, artwork, graphic material, or other copyrightable elements, and the selection and arrangements thereof, and trademarks, service marks and trade names (the “Material”) are the property of Adventure Office and/or its subsidiaries, affiliates, assigns, licensors or other respective owners and are protected, without limitation, pursuant to U.S. and foreign copyright and trademark laws. You agree not to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate any Material to any third party (including, without limitation, the display and distribution of the Material via a third party website) without the express prior written consent of Adventure Office, LLC. Use of Adventure Office, LLC and/or its licensors’ Material is only permitted with their express written permission. You further agree that you will not disassemble, decompile, reverse engineer or otherwise modify the Material. Any unauthorized or prohibited use may subject the offender to civil liability and criminal prosecution under applicable federal and state laws.
12. USER ACCOUNT. Client will receive a password and account designation (“User Account”) upon completing the registration process. You are responsible for maintaining the confidentiality of the User Account and are fully responsible for all activities that occur under Client’s User Account. You agree that access to the Services, via your User Account, will be restricted to Client employees whose use is consistent with this Agreement, and giving others unauthorized access via your User Account is expressly forbidden and grounds for immediate termination of this Agreement. Client agrees to immediately notify Adventure Office of any unauthorized use of Client’s password or account or any other breach of security. Adventure Office cannot and will not be liable for any loss or damage arising from Client’s failure to comply with this section.
13. ACCOUNT ACTIVITY. Adventure Office reserves the right to monitor Client’s User Account and use of the Services and to disclose any information necessary to (A) ensure your compliance with this Agreement; (B) satisfy any applicable law, regulation or legal process; or (C) protect the rights, property and interests of Adventure Office, its employees or the public. Adventure Office reserves the right to suspend or terminate any User Account and use of the Services and Software, and remove and discard any Client content or data at any time, without notice, due to your breach of this Agreement, including policies or guidelines set forth by Adventure Office elsewhere, conduct that Adventure Office believes is harmful to other users of the Services or the business of Adventure Office or other third party information providers.
14. TERM AND TERMINATION. The initial term of the Services to be provided under this Agreement shall be set forth in the applicable Order Form, and will renew upon the expiration date for successive terms of equal length unless terminated earlier pursuant to this Agreement. Either party may immediately terminate this Agreement if the other party breaches any material provision and fails to cure such breach within thirty (30) days after receipt of written notice by the other party. Either party may terminate this Agreement for its convenience and without cause by providing sixty (60) days written notice to the other party. Either party may terminate this Agreement immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, or similar proceeding, or there is an assignment for the benefit of creditors, and such proceeding is not dismissed within thirty (30) days of filing. Neither party will be liable to the other for any expiration or termination of this Agreement; provided, however, termination will not extinguish claims or liability arising prior to such expiration or termination. Upon the effective date of expiration or termination, Adventure Office will immediately cease providing any Services and any and all remaining payment obligations of Client under this Agreement shall become immediately due and payable. All provisions concerning payment, privacy, indemnity, defaults, and remedies shall survive the expiration or termination of this Agreement.
15. FEES. You shall make timely payment of all applicable fees pursuant to the applicable Order Form(s), which shall commence billing as of the date of the start of the Services. All payments must be made in U.S. dollars. Any amounts not paid when due will accrue interest at the lesser of one and one-half percent (1½%) per month, compounded monthly, or the maximum rate permitted by applicable law from the due date until paid. If any fee remains unpaid ten (10) days after written notification of failure to make payment, Adventure Office may, in its sole discretion and without liability, disable the Services and/or terminate this Agreement immediately. Client agrees to pay all costs, including attorneys’ fees, incurred by Adventure Office in the collection of any unpaid fees.
16. FEE COLLECTION. To facilitate timely payments by Client, Client agrees to provide a valid credit card to Adventure Office to which fees can be charged, as earned, by Adventure Office. This Agreement represents Client’s ongoing authorization to charge said credit card for fees earned by Adventure Office.
17. CHANGES. Adventure Office reserves the right to modify or eliminate certain components of the Services and the fees under this Agreement upon not less than thirty (30) days prior written notice to Client. Your continued use of the Services after the expiration of the notice period constitutes your acceptance of such changes.
18. DISCLAIMER OF WARRANTIES. Client acknowledges that the Services provided by Adventure Office are computer-network based, and there will be occasions when the Services will be interrupted. Adventure Office exercises no control over and accepts no responsibility for the information or content accessible on the Internet. The Internet is not a secure network; confidential or sensitive information should not be transmitted over the Internet or stored on computers directly connected to the Internet. Adventure Office disclaims any liability for loss or theft of information transmitted over the Internet or stored on computers directly connected to the Internet. THE SERVICE AND ANY RELATED SOFTWARE AND/OR EQUIPMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER ADVENTURE OFFICE, NOR ITS EMPLOYEES, NORE ITS AFFILIATES, NORE ITS CONTRACTORS, NOR ITS AGENTS WARRANT THAT THE SERVICE SHALL BE ERROR-FREE, UNINTERRUPTED, SECURE, OR PRODUCE PARTICULAR RESULTS OR THAT THE INFORMATION OBTAINED ON THE INTERNET SHALL BE RELIABLE OR UNOBJECTIONABLE. NO ADVICE OR INFORMATION GIVEN BY ADVENTURE OFFICE OR ITS EMPLOYEES, AFFILIATES, CONTRACTORS, OR AGENTS SHALL CREATE A WARRANTY.
19. INDEMNIFICATION. Client shall indemnify, defend, and hold harmless Adventure Office and its employees, affiliates, contractors, and agents from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, without limitation, reasonable attorneys’ fees) arising from or related to any breach of this Agreement, including without limitation any use of the Services provided by Adventure Office or acts or omissions by Client or any of its customers, employees, affiliates, contractors, or agents, and any claims for infringement of any third-party rights arising from or related to the Customer Data.
20. LIMITATION OF LIABILITY. IN NO EVENT SHALL ADVENTURE OFFICE OR ITS EMPLOYEES, AFFILIATES, CONTRACTORS, OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS, REVENUE, DATA, OR USE, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, INCLUDING, WITHOUT LIMITATION, LEGAL THEORIES OF CONTRACT, TORT, OR STRICT LIABILITY, EVEN IF ADVENTURE OFFICE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT SHALL ADVENTURE OFFICES’s LIABILITY FOR ANY DAMAGES EXCEDE THE ACTUAL DOLLAR AMOUNT PAID BY CUSTOMER FOR THE SERVICE DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE DAMAGES OCCURRED OR THE CAUSE OF ACTION AROSE. Adventure Office shall not be responsible for performance of its obligations hereunder where delayed or hindered by events beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, accident, strike or other labor disturbance, interruption of or delay in transportation or telecommunication service, act of its vendors or suppliers, or inability to obtain raw materials, supplies, or power used in or equipment needed for the provision of the Service.
21. NO ASSIGNMENT. Client may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Adventure Office, except to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
22. ENTIRE AGREEMENT; SEVERABILITY. Except only as provided in Section 4, this Agreement and the Order Form constitute the entire agreement between Adventure Office and Client and govern your use of the Services and Software, superseding any prior or contemporaneous agreements between Adventure Office and Client. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions based upon the entire Agreement, including the invalidated provision, and the other provisions of this Agreement shall remain in full force and effect. No term or provision in any invoice or other business form will control the relationship of the parties or supersede any conflicting term of this Agreement. The headings of sections of this Agreement are for convenience and are not to be used in interpretation.
23. GOVERNING LAW; VENUE. This Agreement shall be construed pursuant to the laws of the State of Colorado and the United States without regard to the conflict of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The Federal and State Courts located in the City and County of Denver, Colorado, shall have sole jurisdiction over any disputes arising hereunder, and the parties hereby submit to the personal jurisdiction of such courts. THE PARTIES HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY AND CONSENT TO TRIAL BY THE COURT OF ANY ISSUES ARISING OUT OF THIS AGREEMENT.
24. NON-WAIVER OF REMEDIES. The waiver by either party of a breach of this Agreement or any right hereunder shall not constitute a waiver of any subsequent breach of this Agreement; nor shall any delay by either party to exercise any right under this Agreement operate as a waiver of any such right.
25. NOTICES. All notices required by or relating to this Agreement will be deemed to have been given as of the date of delivery or five (5) days after it is sent, whichever is earlier. All such notices shall be in writing and delivered in person or sent by means of certified mail, postage prepaid, confirmed facsimile, confirmed electronic mail, or nationally recognized overnight courier, to the parties to this Agreement and addressed as follows: If to Adventure Office: Adventure Office 3145 East Flamingo Road, Unit 2128, Las Vegas, NV 89121 Email: email@example.com Fax: 303-292-5523 If to Client: Contact Information Listed on the applicable Order Form.