Operator terms and conditions

These Operator Terms and Conditions (“Agreement”) are entered into between TourBoats and Operator. 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 TourBoats and Operator. The relationship between Operator and a Customer is governed by the Operator-Customer Contract.

1. TourBoats Platform

TourBoats operates the TourBoats Platform. In connection with Operators’s access and use of the TourBoats Platform, Operator appoints TourBoats as its commercial agent for the purposes set forth herein. Using the TourBoats Platform, Customers can purchase Services from Operators through TourBoats acting as an commercial agent for Operator, and Travel Agencies, concierges, or other entities may purchase Services from Operoators for their clients. Operator is responsible for acquiring and maintaining, at its own expense, all equipment and connectivity required to access the TourBoats Platform.

2. Operator Administration Site.

Operator may manage the Operator Content, including Product Offers, on the TourBoats Platform using the Operator Administration Site.

2.1 Operator Creation. Operator will provide to TourBoats all information required by TourBoats to establish and maintain the Operator Account. This includes insurance details in accordance with Section 11 below, current business license or registration information, details regarding Operator’s Payment Account, and other information as reasonably requested by TourBoats. Operator will keep this information up-to-date via the Operator Administration Site.
2.2 Login Credentials. Operator is responsible for maintaining the confidentiality and security of its Login Credentials and may not disclose the Login Credentials to any third party. Operator is liable for all activities conducted in connection with its Operator Account. Operator must immediately notify TourBoats if Operator knows or has reason to suspect that its Login Credentials have been lost, stolen, misappropriated, or otherwise compromised or there has been actual or suspected unauthorized use of its Operator Account.

3. Sale of Services on the TourBoats Platform.

3.1. Product Offers. For each Service that Operator wishes to sell via the TourBoats Platform, Operator will upload a Product Offer using the Operator Administration Site. The Product Offer must include all necessary information about the Services, including 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), logistical information (e.g. meeting point, meeting time, duration, and required or recommended clothing and equipment), and other information requested by TourBoats. Operator 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, Operator shall provide this information to Customer as soon as possible. TourBoats reserves the right to introduce Content Modifications in line with TourBoats’s Content Guidelines.
3.2. Availability. Operator must keep the Product Offer, including Availability, up-to-date and accurate at all times. Operator must delete any cancelled or invalid Product Offers immediately. Operator is responsible for any Customer claim based on alleged or actual inaccuracies of the Product Offer, including Availability, or other Operator Content.
3.3. Prices. Operator sets the Retail Price at which Services will be sold to Customers. The Retail Price for the Services stated in the Product Offer shall include Applicable Taxes. The Retail Price must include all expenses; TourBoats 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. Operator may not collect (or attempt to collect) from a Customer any fees, taxes, dues, commissions, or other amounts not disclosed in the Product Offer.
3.4. Conclusion of Contract. When a Customer purchases Services via the TourBoats Platform, the Customer purchases Services directly from Operator pursuant to the Operator-Customer Contract, concluded on Operator’s part by TourBoats acting as commercial agent of the Operator in the name and on behalf of Operator. Operator appoints and authorizes TourBoats (and its Distribution Partners) as its commercial agent to conclude the Operator-Customer Contract with Customers in the name and on behalf of the Operator, manage and cancel Bookings, and make full or partial refunds to Customers, as set forth in this Agreement. TourBoats may decide to reject the conclusion of the Operator-Customer Contract within its sole discretion (e.g. in the case of potential fraud or compliance concerns).
3.5 Payment Collection. Operator instructs TourBoats as its commercial agent to collect payments from Customers in the name and on behalf of Operator, and Operator agrees that TourBoats 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 Operator. In particular, for any payment from a US Customer, Operator appoints TourBoats Operations as its limited payment agent solely for the purpose of directly accepting such payments on behalf of Operator and to make onward payment of those sums to TourBoats. Operator agrees that receipt of payment for the sum due from a Customer by TourBoats, or its Sub-Commercial Agent (including TourBoats Operations), as applicable, shall extinguish Customer's payment obligation to Operator. Operator agrees that payment made by a Customer to TourBoats or its Sub-Commercial Agent (including TourBoats Operations), as applicable, through the TourBoats Platform shall be considered the same as a payment made directly to Operator, and Operator will provide Services to Customers in the agreed-upon manner as if Operator had received the Customers’ funds directly. Operator acknowledges and agrees that it shall have no recourse against a Customer once the funds are tendered to TourBoats or its Sub-Commercial Agent (including TourBoats Operations), as applicable. TourBoats uses a Payment Service Provider to process payments from Customers; in some cases a Distribution Partner and in certain countries an Affiliate may be appointed as a Sub-Commercial Agent. TourBoats will bear the credit card and banking fees for the receipt of payment from Customers, provided that TourBoats may charge Customers a foreign exchange fee if applicable. The payment will be collected in the currency indicated by Operator in the Product Offer.
3.6. Changes. Customers occasionally make mistakes when making Bookings. Subject to availability, TourBoats 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 TourBoats.
3.7. Chargebacks and Disputes. If a Chargeback or other payment failure occurs before Operator provides a Service, TourBoats will inform Operator and cancel the Booking. If a Chargeback occurs after Operator provides a Service, TourBoats will ask Operator to provide a response within three Business Days. TourBoats may forward Operator’s response to the credit card issuer. Operator acknowledges and agrees that TourBoats accepts payments from Customers as Operator’s commercial agent, and that TourBoats’s obligation to pay Operator is subject to and conditional upon successful receipt of the associated payments from Customers. In the event of a Chargeback or other failed payment, TourBoats and its Sub-Commercial Agent will make no payment to Operator for the affected Booking, TourBoats will receive no Commission for the affected Booking, and TourBoats may offset any amount already paid to Operator for the affected Booking against any future payment under this Agreement. TourBoats and its Sub-Commercial Agent are not a party to the Operator-Customer Contract, do not act as a guarantor for payment by Customers, and are not liable to Operator in the event of Chargeback or other nonpayment by a Customer.
3.8. Cancellations; No Shows. Operator will not directly accept cancellations of Bookings from Customers; all cancellations must be made by a Customer through the TourBoats Platform or TourBoats customer service.
(a) During the Free Cancellation Period. If a Customer cancels a Booking during the Free Cancellation Period, TourBoats will give the Customer a Full Refund. If TourBoats gives a Customer a Full Refund, pursuant to this section or for any other reason, (A) Operator will receive no payment for the Booking, and (B) TourBoats will receive no Commission for the Booking.
(b) After the Free Cancellation Period. If a Customer cancels a Booking after the Free Cancellation Period has ended, and there are no extenuating circumstances, the Booking will be treated as a Completed Booking for purposes of payment. If there are extenuating circumstances, TourBoats may give the Customer a Full Refund.
(c) Force Majeure Situations. In the event that Operator cancels Services because of a Force Majeure Situation, Operator must notify TourBoats’s customer service department immediately. A Customer may cancel a Booking if a Force Majeure Situation occurs at the travel destination, regardless of whether Operator continues to provide Services during the affected period of time. If Operator or Customer cancels a Booking in connection with a Force Majeure Situation, TourBoats 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, TourBoats may give the Customer a Full Refund.
3.9. Provision of Services. Operator 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. Operator may subcontract performance of the Services only with the prior written consent of TourBoats.
3.10. Failure to Provide Services. If Operator cancels a Booking or otherwise fails to provide Services to a Customer as required by a Booking, TourBoats will give the Customer a Full Refund. Operator acknowledges that its cancellation or other failure to provide Services damages TourBoats’s goodwill and reputation, and causes TourBoats to incur additional customer service expenses. Accordingly, if TourBoats determines that the cancellation or failure to provide Services was not justifiable (e.g. the result of a Force Majeure Situation), TourBoats 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 Operator hereunder. The Parties acknowledge and agree that it would be impractical to estimate the amount of any damages that could arise out of Operator’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 TourBoats would suffer and incur as a result of such cancellation or failure to provide Services. TourBoats may, at its sole discretion, opt not to deduct this amount, or to deduct a lesser amount, if Operator provides an alternative but equivalent Service at the same date to the affected Customers. For the avoidance of doubt, a cancellation resulting from Operator’s failure to provide accurate Availability information on the TourBoats 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, TourBoats may terminate this Agreement for Operator’s material breach if Operator fails to provide Services as contracted.

4. Payment.

4.1. TourBoats’s Commission. Operator agrees to pay TourBoats a Commission for use of the TourBoats Platform, marketing performed by TourBoats, customer service performed by TourBoats, TourBoats’s brokering of transactions between Operator and Customers, and other services performed hereunder by TourBoats. TourBoats’s Commission is a percentage of the Retail Price for a Booking, as specified in the Operator Account, or defaulting to 20%. Operator 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 Operator. At Operator’s option, TourBoats will make payments to Operator weekly. By the fifth Business Day of the next week, TourBoats will transfer an amount to the Operator’s Payment Account equal to the total amount collected from Customers for Completed Bookings occurring in the previous week, less applicable Commission.
4.3. Transaction Fees; Deductions. TourBoats shall pay the transaction fees charged by TourBoats’s or its Sub-Commercial Agent’s financial institution to transfer amounts to Operator’s Payment Account. Operator will bear any fees charged by Operator’s own financial institution for the receipt of payments from TourBoats or its Sub-Commercial Agent and, if applicable, any fees charged by the intermediary bank. TourBoats or its Sub-Commercial Agent may deduct from any payment to Operator the costs of refunds made to Customers, replacement services provided to Customers, or other amounts Operator is required to pay or reimburse a TourBoats Party under this Agreement.
4.4. Taxes. Operator 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 Operator requires TourBoats to collect Applicable Taxes on Operator’s behalf, Operator will inform TourBoats regarding the applicable rate(s) and the Parties will cooperate to establish a method for such collection. If at any time TourBoats determines that it is required to collect or deduct Applicable Taxes relating to Services, either on its own or on Operator’s behalf, it will inform Operator and collect or deduct such Applicable Taxes. Upon request from a TourBoats Party, Operator will within five business days provide that entity with Operator’s valid tax identification or registration numbers, including where requested any business registration number, to demonstrate that Operator is a registered taxpayer in applicable jurisdictions where Services are taxable,issue a valid tax invoice to that entity in relation to any specified Services, provide documentation to that entity substantiating that Operator remitted tax on Services (including copies of returns, workpapers, and supporting transaction data reports), and provide other cooperation to that entity as requested to confirm Operator’s compliance with tax obligations. Such information requests may be made directly to the Operator or via the Operator Administration Site. Any failure to comply with the requirements of this section may result in the temporary or permanent suspension of Operator’s Services from the TourBoats Platform. In the event Applicable Law in a jurisdiction imposes VAT (or other Applicable Tax) on Commission, TourBoats will deduct the amount of such VAT (or other Applicable Tax) from payments due to the Operator, in addition to the Commission. Operator 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. TourBoats will provide Operator a statement (“Statement”), once per payment period, showing the total number of Completed Bookings during the payment period, the total amount collected from Customers on Operator’s behalf for Completed Bookings, the total amount transferred to Operator’s Payment Account for those Completed Bookings, the services performed by TourBoats (“Commission”) and the amount of sales or other taxes collected and remitted on Operator’s behalf (if any). The Statement is the basis for payout by TourBoats. Point serves as the invoice TourBoats issues for the Operator in relation to the services provided ("Commission Invoice"). Unless Operator provides written notice to TourBoats 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 TourBoats’s sole discretion. Without prejudice to the foregoing, no dispute may be raised, and no claim, action or proceedings may be brought, against TourBoats 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, TourBoats and its Sub-Commercial Agent may postpone and accrue payments due to Operator hereunder until the total amount payable is equal to at least $50.00 (or an equivalent amount in the specified currency). TourBoats will transfer any accrued and unpaid amount to Operator upon any termination of this Agreement.
4.7. Payment Withholding. TourBoats and its Sub-Commercial Agent may postpone or withhold payments due to Operator hereunder in case Operator 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. Operator may not directly or indirectly encourage a Customer to book a service outside the TourBoats Platform, refer a Customer to any other website or platform, including Operator’s own website or platform, or take any other action to circumvent the TourBoats Platform or the payment of Commission. If prospective customers, who initiated communication through the TourBoats Platform, ask to book a Service outside the TourBoats Platform, Operator will refer them to the TourBoats Platform.
5.2. Invoices. Upon request by a Customer, Operator will provide the Customer an invoice for Services via the Communication Tools. The invoice must comply with all applicable tax requirements.
5.3. Service Levels & Business Conduct. Operator agrees to act with the care of an ordinary and reasonable businessman towards all customers. Operator agrees that the Retail Prices, availability, amenities, and restrictions for Services offered via the TourBoats Platform will be equal to or better than those made available through Operator’s or its affiliates’ own online shops. Customers who book a Service through the TourBoats Platform will be treated at least as well as customers that book through Operator’s or its affiliates’ own online shops. Operator acknowledges that TourBoats has provided them with access to TourBoats’s written responsible tourism onboarding guidelines, which sets forth guidelines for TourBoats's action and behavior relating to ethical and responsible standards of behavior, including, without limitation, those dealing with human rights (for example, child labor, slavery), environmental protection, sustainable development, and bribery and corruption ("TourBoats's RT Guidelines") . During the term of this Agreement, Operator shall conduct business, and shall ensure that any person under its control conducts business, in a manner consistent with TourBoats's RT Guidelines and all applicable laws and regulations relating to the subject matter thereof. If Operator fails to meet the conditions laid out in this clause, TourBoats may terminate this Agreement pursuant to 14.4.
5.4. Tickets and Receipts. Operator must accept customer tickets generated by TourBoats, including both tickets printed on paper and tickets displayed on smart phones or other mobile devices. If requested, Operator must provide each Customer a receipt for Services. The receipt must comply with all applicable tax requirements.
5.5. Personnel Conduct. Operator is solely responsible for the conduct of its personnel in connection with Customers or other persons. Operator 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.
5.6. Customer Requests Operator will handle and respond to requests or complaints from Customers regarding the Services, complaints about Operator personnel, and requests for refunds. In the event Operator fails to respond to a Customer complaint within three Business Days, TourBoats will give the Customer a Full Refund. In addition, a TourBoats Party will offer customer support services to the Customer, act as an intermediary between Operator and the Customer, answer and reply on behalf of the Operator via the Customer service portal, social media or, if applicable, the communication channels provided on the Operator Detail Page. In the event of Operator’s noncompliance with the service levels in Section 5.4 or any material irregularity, complaint, or nonconformity with a Product Offer, a TourBoats 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 Operator. If a TourBoats Party gives a Customer a partial refund, the amount paid to Operator (and the Commission charged by TourBoats) will be reduced accordingly.
5.7. Reviews. After a Booking has been completed, the Customer will have the opportunity to review the Services on the TourBoats Platform using TourBoats's review system. The aim of the review system is to gather meaningful and accurate feedback regarding the Services and Operator in areas such as performance, reliability, and trustworthiness. Reviews can be viewed by any user of the TourBoats Platform. All review content is the exclusive property of TourBoats or the applicable TourBoats Party. Operator may not use or distribute any reviews from the TourBoats Platform without the prior written consent of TourBoats. Customer reviews are not verified by TourBoats for accuracy. Operator 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. TourBoats Obligations. TourBoats 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, TourBoats may use the Operator Content and Operator Marks in offline and online marketing, including email marketing and pay-per-click advertising. TourBoats will, in its sole discretion, determine whether and how to promote the Services and Product Offers on the TourBoats Platform or elsewhere, including position and ranking in search results. Notwithstanding anything to the contrary herein, TourBoats may offer a Service at a price lower than the Retail Price stated in a Product Offer, provided that the full amount of the discount is deducted from the Commission that would normally be paid by Operator.
6.2. Operator Obligations. Operator must offer Services under its generally-used company and brand name. The Product Offer or other Operator Content may not state or convey the impression, directly or indirectly, that TourBoats provides the Services, TourBoats has tested the quality of the Services, or TourBoats otherwise endorses Operator or the Services.
6.3. Operator Communications. Operator 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, Operator shall not include any marketing or promotional content in any confirmation or other communication sent to Customers. Operator 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.

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

8. Intellectual Property.

8.1. Operator Content. Operator grants to TourBoats 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 Operator Content including on or through the TourBoats Platform, in online and offline marketing materials, and as otherwise contemplated by this Agreement or agreed by the Parties. Operator is solely responsible for the Operator Content, and may provide only Operator Content that it either owns or otherwise has the right to provide to TourBoats under the terms of this Agreement. Operator shall not provide Operator Content that is, contains, or references Prohibited Content. TourBoats may remove from the TourBoats Platform any Operator Content that, in TourBoats’s good faith determination, does or may violate this Agreement or Applicable Law. Alternately, TourBoats may request Operator to correct any such non-conforming Operator Content within two days of notice. To assist consumers who speak different languages, TourBoats may translate (or have translated) Operator Content, in whole or in part, into other languages. TourBoats cannot guarantee the accuracy or quality of such translations. If Operator becomes aware of an inaccuracy in a translated version of a Product Offer or other Operator Content, Operator shall inform TourBoats immediately. TourBoats will on a regular basis sublicense Operator Content to Distribution Partners.
8.2. Operator Marks. Operator grants to TourBoats a non-exclusive, sublicensable (through one or more tiers), paid-up, royalty-free license to use the Operator Marks to market the Services. TourBoats’s use of the Operator Marks shall inure solely to the benefit of Operator and will not create any right, title, or interest for TourBoats in the Operator Marks other than the license granted under this Agreement.
8.3. Retention of Rights. The Operator Content and Operator Marks, and all worldwide Intellectual Property Rights therein, are the exclusive property of Operator (and its suppliers). All rights in and to the Operator Content and Operator Marks not expressly granted to TourBoats in this Agreement are reserved by Operator (and its suppliers).
8.4. TourBoats Materials. The TourBoats Content and TourBoats Platform, and all worldwide Intellectual Property Rights therein, are the exclusive property of TourBoats (and its suppliers). Operator may not use, copy, store, reproduce, adapt, translate, modify, distribute, publicly display, publicly perform, transmit, or otherwise exploit any TourBoats Content, or any TourBoats trademark, logo, or slogan during or after the term of this Agreement, without TourBoats’s prior written consent.
8.5. Restrictions. Operator agrees not to directly or indirectly 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 TourBoats Platform for any purpose; avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented to protect the TourBoats Platform; attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the TourBoats Platform; or take any action that damages or adversely affects, or could damage or adversely affect, the performance or proper functioning of the TourBoats Platform.
8.6. Artificial Intelligence and Automated Processing. The Parties recognize that the use and adoption of artificial intelligence ("AI") technologies have grown increasingly widespread in a digital economy. TourBoats may use AI technologies and automated processes to analyze, categorize, enhance, or otherwise process Operator Content. This may include, but is not limited to, the use of AI for translation, content moderation, data analysis, and personalization of user experiences. Operator acknowledges and agrees that such automated processing and use of AI technologies may result in modifications to the Operator Content, and that TourBoats is not responsible for any inaccuracies or errors introduced by the use of such AI technologies and automated processes. Operator grants TourBoats the right to use any data derived from the use of AI technologies and automated processes on Operator Content for the purpose of improving TourBoats's services, AI algorithms, and automated processes.

9. Representations and Warranties.

9.1. Mutual. Each Party represents and warrants that: the person executing this Agreement on its behalf is authorized to bind it to this Agreement; and this Agreement constitutes a valid and binding obligation enforceable against it in accordance with its terms. 9.2. By Operator. Operator represents and warrants that it is the owner of the Operator Content, or otherwise has the right to provide the Operator Content to TourBoats under this Agreement; the Operator Content does not violate any Applicable Law or the Intellectual Property Rights or privacy rights of any third party; all information with regard to any Product Offer is and shall remain to be true, accurate, and not misleading; all Services shall be rendered in compliance with, and Operator shall operate its business in compliance with, Applicable Law and industry-standard safety standards; Operator 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 Operator’s business and the provision of Services; and any Operator personnel providing Services possess sufficient skills, training, qualifications, experience, licenses, and permits to perform those Services in a professional manner consistent with Applicable Law and industry best practices. 9.3. Disclaimers. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE ACTIVITIES AND SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. This includes, but is not limited to, the use of AI tools and automated processes. The TourBoats Platform and TourBoats Content are provided “as is,” without warranty of any kind, either express or implied. TourBoats does not warrant that the TourBoats Platform will meet all of Operator’s requirements or that performance of the TourBoats Platform will be uninterrupted, virus-free, secure, or error-free, or the TourBoats Content will be complete, accurate, or free from technical defects or changes by unauthorized third parties. TourBoats is not responsible for the accuracy or completeness of Customer-related data. TourBoats does not guarantee that Operator will sell a minimum amount of Services through the TourBoats Platform. TourBoats reserves the right to change, supplement or remove the contents of the TourBoats 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 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 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), Operator shall maintain a comprehensive general liability insurance covering risks related to Operator’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, Operator’s location, and industry standards. The policy must extend to indemnification claims tendered by the TourBoats Parties. If one or more automobiles is used in the performance of Services, Operator shall maintain automobile liability insurance with limits of not less than US$1 million (or an equivalent amount in Operator’s local currency) combined single limit per accident if the Services are provided in the United States, Canada, or Australia, or 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 TourBoats’s request, Operator will add the TourBoats Parties as additional insureds to such insurance policies. Operator must provide via the Operator Administration Site detailed information about the insurance provider and the insurance expiration date, and update the insurance information whenever Operator changes its insurance or the prior certificate expires. Operator must inform TourBoats regarding any change in the required insurance policies, including non-renewal thereof. Upon request, Operator shall provide TourBoats a copy of the applicable insurance policy and proof of payment of the relevant premiums.

12. Liability.

TourBoats shall be liable to Operator solely for any damage to Operator due to TourBoats’s willful or grossly negligent act, any damage to Operator‘s life, body, or health due to TourBoats’s simple negligence, and any damages to Operator due to TourBoats’s breach of its material obligation under the Agreement. In case of TourBoats’s breach of its material obligation due to simple negligence, TourBoats’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 TourBoats’s proper performance of this Agreement and on whose compliance Operator may regularly rely. Any further liability for damages is excluded. Without limiting the foregoing, TourBoats shall not be liable for damages which occur due to interruptions or restrictions of the operation of the TourBoats Platform due to necessary maintenance work, force majeure, or other events for which TourBoats is not responsible. TourBoats 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 TourBoats be liable to Operator for any acts or omissions of any Distribution Partner. Operator’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 TourBoats and Operator act separately as data controllers. Customer Personal Data collected by TourBoats may only be transferred to Operator to the extent necessary for the performance of the Services and in compliance with data protection transfer mechanism. Operator shall comply with all applicable Data Protection Laws when processing (including accessing, collecting, storing, transmitting, transferring and deleting) Customer Personal Data. Operator 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 TourBoats’s request, Operator will provide evidence that Operator 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. Operator authorizes the Payment Service Provider, and any other third party authorized by TourBoats, to process data required to transfer funds to and from Operator accounts, or as otherwise required to operate the TourBoats Platform.
13.3. Development. TourBoats may transfer data relating to Operator to Distribution Partners and third parties as necessary to further develop the TourBoats Platform (including its interfaces to third party products and services) and to promote the Services. For example, TourBoats may transfer the necessary data to promote the Services via a third party’s web mapping service, listing service, search engine service, or digital assistant, or develop and implement relevant interfaces between the TourBoats 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 as a whole or in part at any time for convenience effective upon 30 days notice. A termination can be done automatically by using the appropriate function in the Operator Account. A deactivation of the Operator Account equals a termination. 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 TourBoats reasonably believes that Operator is in breach of this Agreement, or that Customers or other suppliers are at risk from Operator’s actions, TourBoats may take one or more of the following actions: issue a warning to Operator; remove Product Offers or other Operator Content from the TourBoats Platform; temporally restrict Operator’s use of the TourBoats Platform; cancel some or all Bookings and give any affected Customers a Full Refund, regardless of the normal cancellation policies; stop accepting Bookings, and withhold payout of Operator's Completed Bookings. In addition, if TourBoats determines that the Services are associated with an excessive number of Chargebacks or fraudulent transactions, or any other severe defect, TourBoats 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 TourBoats shall make no new Bookings after the termination date of this Agreement. At TourBoats’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, TourBoats will remove all Operator Content and Operator Marks from the TourBoats 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 TourBoats Platform may operate as Travel Agencies. For sales made via Travel Agencies, the Customer purchases Services from the Travel Agency, the purchase may be governed by the Travel Agency’s terms and conditions, the Travel Agent may collect payment from the Customer (in which case the Travel Agent will act as a payment collection agent for Operator, 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 TourBoats), the Travel Agent may, in lieu of TourBoats, provide customer service to Customers, including giving partial or full refunds or providing alternative services, the Retail Price shall be the amount collected by TourBoats from the Travel Agency, and 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. If Operator chooses to work with a Connectivity Partner to connect to TourBoats’s systems, this section shall apply. Operator agrees that TourBoats may send Operator’s Confidential Information and information about Bookings to the Connectivity Partner. Operator will obtain for TourBoats the right to use the Connectivity Partner’s API as required for this Agreement; require the Connectivity Partner to provide Operator and TourBoats all technical support necessary to ensure the error-free operation of the API; ensure that the Connectivity Partner will not charge TourBoats any fees; require the Connectivity Partner to execute a confidentiality agreement with Operator that extends to TourBoats’s Confidential Information, and is at least as protective of TourBoats’s Confidential Information as the provisions of this Agreement; ensure that the Connectivity Partner does not use any of TourBoats’s Confidential Information or any information transmitted between TourBoats and Operator via the API, (a) for any competitive purpose, (b) to perform data analytics, or (c) for any purpose other than to enable TourBoats to provide the services described in this Agreement; 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 TourBoats and Operator via the API; and enter into an industry standard data processing agreement with the Connectivity Partner, if required. Operator agrees that TourBoats 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 Operator chooses to grant access to a Connectivity Partner to manage their Operator Content, the Operator's obligations shall also apply to the Connectivity Partner.
16.2. Operator API. If Operator chooses to connect to TourBoats’s systems via Operator’s own API, this section shall apply. Operator hereby grants TourBoats the right to use the Operator’s API as required for this Agreement; Will provide TourBoats all technical support necessary for the error-free operation of Operator’s API; and 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 Operator and TourBoats is non-exclusive. Operator may sell services through other marketplaces (including competitors of TourBoats), and TourBoats 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 Croatian 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 Croatian provided that the Operator is a merchant or legal person under public law or has no place of business or domicile in the Republic of Croatia.
17.3. Amendments. TourBoats may propose amendments to this Agreement by posting the revised terms and conditions on the TourBoats website or Operator Administration site, or by any reasonable means (including via email, via the Communication Tools, or via a notice on the Operator Administration Site). TourBoats will provide at least four weeks’ notice of these changes prior to the proposed Amendment Effective Date. It is Operator’s responsibility to check the TourBoats website or Operator Administration Site regularly for any amendments. Operator may reject a proposed amendment by sending a notice of rejection to TourBoats, in the manner specified, before the proposed Amendment Effective Date. If Operator does not send such a notice of rejection to TourBoats before the proposed Amendment Effective Date, or continues to use the TourBoats Platform after the Amendment Effective Date, Operator 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 be in writing, refer to this Agreement, and 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, 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 TourBoats may delegate or assign any right or remedy under this Agreement to a TourBoats 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, TourBoats may send notices to Operator 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 to the extent that the afflicted Party is prevented from performing such duties or obligations, 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, “including” means “including but not limited to,” and 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 as permitted in this Agreement, or as required by a court or other governmental authority. TourBoats may disclose Confidential Information to the TourBoats 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. TourBoats and any subagents disclaim, and Operator 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 TourBoats Parties are expressly named as third party beneficiaries to this Agreement, and each of the TourBoats Parties has the right to enforce this Agreement against Operator 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 any and all oral or written agreements or understandings between the Parties, as to the subject matter of the Agreement, and any terms and conditions governing the use of Operator’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.

Popular tours