PARTNER SERVICE AGREEMENT - TRAVEL AGENT
Viator, Inc. (a Delaware corporation, located at 360 3 rd Street, Suite 400, San Francisco, CA 94107) on itsown behalf and on behalf of other companies in the Viator group, including without limitation ViatorLimited, Viator Systems Pty Ltd, and Looktours.com LLC (individually and collectively, "Viator" andsometimes referred to in this Agreement as "us", "our" or "we") provides an online marketplace on whichthird-party suppliers of travel and tourism related tours, excursions, activities, venues, accommodationsand related services (collectively "Travel Products") can market and sell their offerings to consumers("Viator Marketplace"). This Partner Service Agreement ("Agreement") applies to any individual or entity("Partner" "you" or "your") that is permitted to access or use the Viator Marketplace (e.g., Travel Agents)for the purpose of purchasing Travel Products on behalf of consumers. Viator and Partner are alsosometimes referred to in this Agreement individually as a "Party" and collectively as the "Parties".
PLEASE CAREFULLY READ THIS AGREEMENT. YOUR USE OF THE VIATOR MARKETPLACE ISCONDITIONED UPON YOUR ACCEPTANCE OF THIS AGREEMENT WITHOUT MODIFICATION. BYACCESSING OR USING THE VIATOR MARKETPLACE, YOU ARE INDICATING THAT YOU HAVEREAD THIS AGREEMENT AND AGREE TO BE LEGALLY BOUND BY ITS TERMS. IF YOU AREENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOUREPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THISAGREEMENT, IN WHICH CASE THE TERMS "PARTNER", "YOU" OR "YOUR" SHALL REFER TOSUCH ENTITY. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, YOU MAYNOT ACCESS OR USE THE VIATOR MARKETPLACE.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TORESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND ALSO LIMITS THEREMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE RELATING IN ANY WAY TO YOUR USE OF THEVIATOR MARKETPLACE. THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE ARELIMITED UNDER THIS AGREEMENT AND BY ENTERING INTO IT, YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEFIN A COURT OF LAW. PLEASE SEE SECTION 11 BELOW FOR MORE INFORMATION REGARDING ARBITRATION.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF VIATOR MARKEPLACE WILL BE GOVERNED BYAND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT,WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHERJURISDICTION.
YOU MAY BE REQUIRED UNDER THIS AGREEMENT TO INDEMNIFY VIATOR AGAINST CERTAINTYPES OF CLAIMS, AS SPECIFIED IN SECTION 11 BELOW.
This Agreement is effective on the earlier of (a) the date you accept this Agreement by clicking an"I Agree" button, or (b) the date you first access or use the Viator Marketplace (the "Effective Date").
- "Affiliated Agent" means a Travel Agent that has been authorized by a Sponsoring Agent toutilize such Sponsoring Agent's Viator Marketplace account to process Transactions, asdescribed more fully in Section 2.1 below.
- "Customer" means an individual or entity that purchases Travel Products through Partnerpursuant to this Agreement.
- "Customer Information" means personally identifiable information of individual Customers,including name, address, phone number, e-mail address, date of birth, social security number,credit card information, driver's license number, account numbers, PINs and/or passwords, andany other information that could reasonably identify a person or entity.
- "Initial Term" means the initial term of this Agreement which shall begin on the Effective Dateand end six (6) months thereafter.
- "Referral Fee" means a fee paid to a Sponsoring Agent orUnaffiliated Agent for each Transaction in accordance with the terms of thisAgreement (including any additional fees that may be agreed between the partiespursuant to Section 7.2).
- "Retail Rate" means the rate set by a Supplier for retail sale of a Travel Product to a Customervia the Viator Marketplace.
- "Sponsoring Agent" means a Travel Agent that has been authorized by Viator to inviteAffiliate Agents to register for access to the Viator Marketplace and permit suchAffiliated Agents to utilize such Sponsoring Agent's Viator Marketplace account toprocess Transactions, as described more fully in Section 2.1 below.
- "Supplier" means the third-party provider of each Travel Product.
- "Term" means Initial Term together with any continuation of the Agreement thereafter inaccordance with Section 10.
- "Transaction" means the purchase of a Travel Product by Partneracting as a Customer's agent, on behalf of one or more travelers in a single travelitinerary, and where the sale is processed on the Viator Marketplace using theaccess credentials or other unique identifiers provided by Viator to Partner (ifPartner is a Sponsoring Agent or Unaffiliated Agent) or by a Sponsoring Agent toPartner (if Partner is an Affiliated Agent).
- "Travel Agent" means a person acting in the course of business and in the manner required byapplicable law who is engaged in marketing and/or arranging transportation, accommodations,tours or trips for travelers, which may include acting as a booking agent on behalf of suchtravelers.
- "Travel Product Information" means any information related to a Travel Product provided byViator to Partner under this Agreement.
- "Unaffiliated Agent" means a Travel Agent that is not a SponsoringAgent or Affiliated Agent, as described more fully Section 2.1 below.
- "Viator Terms and Conditions" means the terms and conditions hosted athttps://www.viator.com/terms-and-conditions or via such other link as Viator may determine onthe Viator Marketplace.
- "Voucher" means an electronic document that includes the trademarks of Viator, is provided byViator to a Customer in connection with the completion of a Transaction, contains relevantinformation about the Travel Product(s) specified in the Transaction (e.g., booking-relatedinformation) and that the Customer must present to the applicable Supplier to redeem suchTravel Product(s).
- Sponsoring Agents, Affiliated Agents and Unaffiliated Agents.
- Overview. There are three categories of Travel Agents permitted by Viator to processTransactions on the Viator Marketplace under Viator's Travel Agent Partner Program: Sponsoring Agents,Affiliated Agents and Unaffiliated Agents. If Viator authorizes you to permit Affiliated Agents to processTransactions under your Viator Marketplace Account, then you are a Sponsoring Agent. If you have beeninvited by a Sponsoring Agent to register for use of the Viator Marketplace and/or are authorized by aSponsoring Agent to process Transactions on their Viator Marketplace account, then you are an AffiliatedAgent. If neither of the foregoing categories apply to you, then you are an Unaffiliated Agent.
- Provisions Applicable Only to Sponsoring Agents. If you are a Sponsoring Agent, then you agreeto the following:
- Use of Your Viator Marketplace Account. You are responsible for any use of your ViatorMarketplace account, including with respect to any access or use of your account by your Affiliated Agents.
- Commercial Terms and Commissions. You are also solely responsible for determiningany commercial terms between you and your Affiliated Agents with respect to Transactions processed bysuch Affiliated Agents under your Viator Marketplace account, including the amount of and payment termsapplicable to commissions or other fees, if any. Affiliated Agents shall look solely to you, and not Viator, forany payments related to Transactions processed under your Viator Marketplace account.
- Provisions Applicable Only to Affiliated Agents. If you are an Affiliated Agent, then you agree tothe following:
- Use of Sponsoring Agent's Viator Marketplace Account. Your use of your SponsoringAgent's Viator Marketplace account is subject to (a) your Sponsoring Agent's continuing authorization, (b)your Sponsoring Agent's continuing good standing under the Viator Travel Agent Partner Program, and (c)your compliance with the terms of this Agreement. You acknowledge and agree that your access to yourSponsoring Agent's Viator Marketplace Account may be rescinded by your Sponsoring Agent at any time,in their sole discretion.
- Commercial Terms and Commissions. You are solely responsible for determining anycommercial terms between you and your Sponsoring Agent with respect to Transactions processed by youunder their Viator Marketplace account, including the amount of and payment terms applicable tocommissions or other fees, if any. You shall look solely to your Sponsoring Agent, and not Viator, for anypayments related to Transactions processed by you under your Sponsoring Agent's Viator Marketplaceaccount.
- Provisions Inapplicable to Affiliated Agents. The following provisions of this Agreementare inapplicable to you: 7 (Referral Fees; Payment), and 11.2.2 (Insurance). You acknowledge and agreethat the remaining provisions of this Agreement are applicable to you.
- License; Intellectual Property; Privacy; Data Security; Undesirable Material
- License. Subject to the terms and conditions of this Agreement, Viator herebygrants to Partner a royalty-free, world-wide, limited, non-transferable,non-sublicensable, non-assignable, non-exclusive license during the Term to accessand use the Viator Marketplace and, subject to Section 4.2 below, use, reproduce,distribute and display the Travel Product Information solely for the limited purposeof promoting and facilitating the purchase of Travel Products by or on behalf ofCustomers.
- Intellectual Property. Partner agrees and acknowledges that the CustomerInformation, Viator Marketplace, Travel Product Information, and all information andmaterials related thereto, and any intellectual property rights inherent in suchinformation or materials, are the sole property of Viator or the Suppliers, andPartner may not display, use or reproduce such materials, technology and informationfor any purpose, other than as expressly set forth by this Agreement.
- Prohibited use of Names. Partner's domain name(s) and marketing efforts, including keywordmarketing, shall not contain the word Viator or trademarked terms relating to Viator, theSuppliers or the Travel Products, without Viator's prior written consent. For the avoidance ofdoubt, unless otherwise agreed in writing by Viator, Partner shall not directly or indirectlypurchase, acquire, use, employ or integrate trademarked terms or keywords (includingvariations and misspellings) or that are identical or strikingly similar to those used by Viator, theSuppliers or Viator's affiliates, the Travel Products, or any related internet-domain names inassociation with advertising through paid search entries or other forms of online-advertising onplatforms of third parties.
- Permitted use of Names. Each Party grants to the other Party the right to display that Party'sname, marks and trademarks for the purpose of advertising the collaboration between theParties, identifying the source of the Travel Product Information and the parties responsible forCustomer service, or for similar commercially reasonable purposes.
- Privacy; Data Security. Each Party shall ensure that any collection, use and disclosure ofCustomer Information obtained by such Party pursuant to this Agreement complies with allapplicable laws, regulations and standards. Neither Party shall send any unsolicitedcommercial email or other online communication (e.g., "spam") to Customers. Partner shalltake all appropriate measures to secure the confidentiality of Customer Information in itspossession and to protect such Customer Information from unauthorized use or disclosure.
- Conduct. Partner will not do or omit to do any act that, in Viator's soleopinion, may be likely to cause Viator or the Viator Marketplace to be disparaged,defamed, discredited or brought into disrepute.
- Feedback. Partner acknowledges and agrees that the Viator Marketplace and Viator's affiliatedwebsites may implement mechanisms that rate and/or allow Customers to rate and providefeedback, reviews and commentary regarding the Travel Products and agrees that all suchratings, feedback, reviews and commentary are (as between the Parties) owned by Viator.
- Travel Product Information
- Travel Product Information. Viator shall use commercially reasonable efforts to ensure theaccuracy of the Travel Product Information, however, Partner acknowledges that Viator maynot be able to verify that all Travel Product Information provided by Suppliers is accurate ortimely and Viator disclaims all liability with respect thereto.
- Display. Partner may offer and make available for purchase all or some of theTravel Products, but must display all Travel Product Information provided by Viatorwith respect to any Travel Product offered by Partner. Partner may not add to,enhance, supplement, alter, modify or amend the Travel Product Information in wholeor in part without Viator's prior consent. Partner will promptly correct any errorsor inaccuracies of which Viator notifies Partner. Partner may not systematicallyanalyze or extract information (including guest reviews) from the Viator Marketplaceand shall not copy, in whole or in part, the look and feel or content of the ViatorMarketplace, except as permitted under this Agreement, or otherwise authorized byViator in writing.
- Transaction Confirmation. Upon completion of a Transaction, Viator will provide the Customer(and/or the Partner, as applicable) with an electronic acknowledgment and Voucher for suchTransaction.
- Conditions of Partner Purchasing as Customer's Agent. Partner may enter into aTransaction on behalf of a Customer, provided that Partner shall in every case: (a)notify the Customer that the Viator Terms and Conditions shall govern suchCustomer's receipt and use of all Travel Products purchased in connection with suchTransaction and provide all of the Travel Product Information applicable to suchTravel Products, so as to effectively incorporate (in the manner required byapplicable law) the Viator Terms and Conditions and Travel Product Information intothe contract for sale of such Travel Product; and (b) not make or give anyrepresentations, warranties or other promises concerning a Travel Product beyondthose contained in the Viator Terms and Conditions and the applicable Travel ProductInformation.
- Payment for Transactions. Viator, acting solely as the applicable Supplier's paymentprocessing agent, will be the merchant of record for all Transactions and will be responsible forcharging and collecting all amounts payable for Transactions from Customers and/or Partner.Viator shall be responsible for all credit card merchant fees and credit card chargebacksassociated with a Transaction. Viator shall be responsible for all payments to Suppliers forTravel Products. Viator or the applicable Supplier shall be responsible for paying any federal,state or local taxes imposed by applicable government entities with respect to Transactions,other than any taxes applicable to the Partner's receipt of Referral Fees.
- Transaction Terms. All requests to purchase a Travel Product are subject to acceptance byViator, in accordance with the terms and conditions specified on the Viator Marketplace. TravelProducts are subject to cancellation, restrictions and penalties, which vary and are detailedonline via the "Terms and Conditions" link on the Viator Marketplace and/or in the TravelProduct Information for each Travel Product (it is therefore important that you review both).
Viator will provide Partner and Customers with email-based support for the purpose of responding to andresolving issues associated with a Travel Product or Transaction.
- Referral Fees; Payment
- Subject to Section 7.2, if Partner is a Sponsoring Agent or an Unaffiliated Agent,Viator shall pay Partner a Referral Fee of eight percent (8%) of the Retail Rate ofeach Travel Product that is included in a Transaction, net of all cancellations andpartial or full refunds.
- Viator may, in its sole discretion, enter into an incentive agreement with Partner with respect toany additional fees to be paid to Partner pursuant to this Agreement.
- Referral Fees shall be paid via Electronic Funds Transfer or any other methodapproved by Viator in the month following the calendar month in which each TravelProduct purchased in a Transaction is availed. In the event the total amount ofReferral Fees due in any month is less than fifty United States dollars (US$50.00)then payment will be withheld until the earlier of (a) such time as the totalReferral Fees due (including the previously withheld amount) in a subsequentcalendar month are equal to or greater than fifty United States dollars (US$50.00),or (b) the termination of this Agreement.
Each Party ("Receiving Party") shall retain in confidence all information made available to it by the otherParty ("Disclosing Party") pursuant to or in connection with this Agreement that the Disclosing Partyidentifies as being proprietary and/or confidential or that, by the nature of the circumstances surroundingthe disclosure, ought in good faith to be treated as proprietary and/or confidential, including, withoutlimitation, all information pertaining to Referral Fees, the Viator Marketplace, Viator technology, and theterms of this Agreement (collectively, "Confidential Information"), and will make no use of suchConfidential Information except under the terms and during the term of this Agreement. ConfidentialInformation shall not include information that the Receiving Party can establish: (i) has entered the publicdomain without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) is rightfullyreceived by the Receiving Party from a third party without confidentiality restrictions; (iii) is known to theReceiving Party without any restriction as to use or disclosure prior to first receipt from the DisclosingParty; or (iv) is independently developed by the Receiving Party without reference the Disclosing Party'sConfidential Information. The foregoing exceptions shall be inapplicable to Customer Information.
- Representations; Warranties
- Power and Authority. Partner represents and warrants that: (a) it has full power and authorityto execute and deliver this Agreement, and has all licenses, authorizations, consents,approvals and permits (including those required to act as a Travel Agent entering intoTransactions on behalf of Customers) required by all applicable laws and regulations in orderto perform its obligations and exercise its rights hereunder, and (b) it shall comply with allapplicable international, federal, state and local laws and regulations (including but not limitedto consumer protection and data privacy laws). If Partner is an entity, Partner further representsand warrants that it is duly organized and validly existing in accordance with the laws of thestate of its incorporation and has full corporate power and authority to execute and deliver thisAgreement and has all licenses, authorizations, consents, approvals and permits required byall applicable laws and regulations in order to perform its obligations hereunder.
- Binding Agreement. Each Party represents and warrants that (a) this Agreement constitutes alegal, valid and binding obligation upon it enforceable in accordance with its terms byappropriate legal remedy; and that (b) the execution, delivery and performance of thisAgreement by such Party does not conflict with any agreement, instrument or understanding towhich it is a party or by which it may be bound, nor violate any law or regulation of any court,governmental body or other agency having jurisdiction over it.
- Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT,VIATOR DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES INCONNECTION WITH THE TRAVEL PRODUCTS, TRAVEL PRODUCT INFORMATION, OR OTHER SUBJECTMATTER UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR APARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, ANY WARRANTIESARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. VIATOR DOES NOTGUARANTEE THAT THE PRODUCT INFORMATION OR VIATOR MARKETPLACE WILL BE ALWAYSAVAILABLE, ACCESSIBLE, TIMELY, OR ERROR-FREE.
- Term; Termination
- Term and Termination. Upon the expiration of the Initial Term, this Agreementwill automatically continue on a month-to-month basis. Following the Initial Term,either Party may terminate this Agreement (a) for convenience upon no less thanthirty (30) days' prior written notice to the other Party; (b) immediately uponwritten notice to the other Party if such other Party commits an irremediable breachof this Agreement or commits a remediable breach and fails to cure such breachwithin fifteen (15) days of its receipt of written notice of such breach from thenon-breaching Party; and/or (c) immediately upon an event of bankruptcy by Partneror if Partner ceases to do business in the ordinary course. In the event ofPartner's breach of this Agreement, Viator may elect to immediately take any one ormore of the following steps either in lieu of, or as a precursor to, its terminationof this Agreement (defined collectively as "Deactivation"): (i) revoke Partner'saccess credentials with respect to the Viator Marketplace; (ii) discontinue Viator'spayment of Referral Fees; and/or (iii) prohibit Partner's use of the ViatorMarketplace. References in this Agreement to the rights and obligations of a Partyin connection with "termination" shall be deemed to include Deactivation, andpost-termination obligations shall apply equally to Partner for the duration of anysuch Deactivation.
- Effect of Termination. Upon termination of this Agreement for any reason, alllicenses and rights granted to Partner pursuant to this Agreement will immediatelyterminate and cease using the Viator Marketplace. Partner shall not be entitled toreceive any Referral Fees in respect of Transactions that occur after thetermination date. Sections 1 (Definitions), 2.2 (Provisions Applicable Only toSponsoring Agents), 2.3 (Provisions Applicable Only to Affiliated Agents), 3.2(Intellectual Property), 3.5 (Privacy; Data Security), 3.6 (Conduct), 7 (ReferralFees: Payment), 8 (Confidentiality), 9 (Representations; Warranties), 10.2 (Effectof Termination) and 11 (General) shall survive any termination or expiration of thisAgreement.
- DISCLAIMER OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHERPARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANYINDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL LOSS OR PUNITIVEDAMAGES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOSS OFREVENUES OR LOSS OF PROFITS, OR COSTS TO PROCURE SUBSTITUTE GOODS,EVEN IF ADVISED OF THE RISK OF THE LOSS OR DAMAGES IN ADVANCE. TO THEMAXIMUM EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF A PARTY WILLNOT EXCEED THE TOTAL REFERRAL FEES PAID OR PAYABLE PURSUANT TO THISAGREEMENT IN THE PRECEDING TWELVE (12) CALENDAR MONTHS. THE FOREGOINGLIMITATIONS SHALL NOT APPLY TO PARTNER'S BREACH OF SECTIONS 3 OR 8, ORPARTNER'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, FOR WHICHLIABILITY SHALL BE UNLIMITED.
- Indemnification and Insurance.
- Indemnification. Partner will indemnify and hold harmless, and at Viator's requestdefend, Viator (including without limitation all companies in the Viator group and Viator'saffiliates) and any of their respective directors, officers, employees, agents, suppliers,licensors, vendors, distributors and service providers (each a "Viator Indemnified Party")from and against any and all claims, losses, liabilities, damages, fines, penalties,settlements, expenses, and costs (including attorneys' fees and court costs) incurred orsuffered by a Viator Indemnified Party in connection with any third party claim, suit,demand, action, or investigation brought against a Viator Indemnified Party directly orindirectly arising out of or relating to Partner's breach (or a claim that, if true, would be abreach) of this Agreement, including, without limitation, any and all of Partner'srepresentations and warranties in this Agreement. Furthermore, if Partner is aSponsoring Agent, the foregoing indemnification obligation shall also apply to any andall claims, losses, liabilities, damages, fines, penalties, settlements, expenses, and costs(including attorneys' fees and court costs) incurred or suffered by a Viator IndemnifiedParty in connection with any third party claim, suit, demand, action, or investigationbrought against a Viator Indemnified Party directly or indirectly arising out of or relatingto any breach (or a claim that, if true, would be a breach) of this Agreement by any ofyour Affiliated Agents.
- Insurance. tner will procure and maintain a current Public (Product) liability insurance(PLI) and errors and omissions insurance with coverage limits consistent with industrystandards and as may be required by applicable laws, rules, and regulations. Suchinsurance will be provided through an insurer acceptable to Viator with an A.M. Best (orits equivalent) financial strength rating of A-VII or higher, and will include, withoutlimitation, completed operations, blanket contractual liability, and personal injury andadvertising liability. Partner will add Viator as an additional insured to such insurancepolicies and will provide a certificate of insurance evidencing all of the coveragedescribed in this Section 11.2.2 and that Viator has been added as an additional insured.Such insurance carried by Partner will be primary to any insurance carried by Viator andif Partner is a Sponsoring Agent, such insurance will provide coverage for Partner'sAffiliated Agents to the same extent as Partner. Notwithstanding the foregoing, Viatorreserves the right to require specific additional coverage or increased coverage, orto waive the foregoing insurance requirements, and Partner will maintain its insuranceat such levels upon Viator's request. Such coverage and limits will not be deemed to bea limitation on Partner's liability to Viator, if any, arising under this Agreement.
- Entire Agreement; Modifications; Waivers. is Agreement constitutes the entire agreementbetween the Parties pertaining to its subject matter, and supersedes all prior andcontemporaneous agreements, arrangements and understandings between the Parties withrespect to such subject matter. Viator reserves the right to update or otherwise make changesto this Agreement from time to time on at least thirty (30) days' notice ("Notice Period"), whichnotice Viator will provide to Partner by any reasonable means, including via email. If Partnerobjects to any such modifications to this Agreement, Partner will within the Notice Period notifyViator in writing of Partner's objection. If Partner so notifies Viator, the revised version will notapply to Partner and the parties will negotiate in good faith to resolve Partner's objection withinsixty (60) days after Viator first provided notice of the revised terms. If the Parties do not reachagreement within such sixty (60) day period, at Viator's option and in Viator's sole discretion, thisAgreement will continue in accordance with its terms in effect prior to such notice or may beterminated by Viator. If Partner does not notify Viator of Partner's objection during the NoticePeriod, Partner's continued access to and use of the Viator Marketplace and any other servicesand/or materials provided by Viator to Partner under this Agreement after the effective date ofsuch modification will be deemed Partner's acceptance of such modification; however, changesto this Agreement will not apply to any dispute between the Parties based on a claim filed beforethe effective date of the changes. Except as set forth in this Section, no amendment, modificationor rescission to this Agreement will be effective unless it is made in writing and signed by bothParties. In no event will a waiver of any right hereunder constitute the waiver of the right in afuture instance unless the waiver so specifies in writing. Any modification, amendment, or waivereffected in accordance with this Section shall be binding upon each of the Parties, and each oftheir respective successors and assigns.
- No Assignment. Partner may not assign this Agreement in whole or in part or delegate any of itsright or obligations hereunder without Viator's prior written consent. Any attempted assignmentin violation of the foregoing will be null and void. Subject to the foregoing, this Agreement willbind and inure to the benefit of each Party's successors and permitted assigns.
- Dispute Resolution. Any controversy, claim or dispute arising out of or relating to this Agreement,or the obligation of a Party hereunder ("Dispute"), will be settled exclusively in accordance withthis Section. Each Party will nominate a representative to negotiate in good faith to promptlyresolve the Dispute for a period of up to fourteen (14) days following notification of the Dispute.In the event the Dispute has not been settled between the nominated representatives then,unless otherwise agreed, the Parties will submit to final and binding arbitration on an individualbasis before a neutral arbitrator instead of in a court by a judge or jury, to be held in SanFrancisco, California. Arbitration will be conducted in accordance with the currently prevailingcommercial arbitration rules of the American Arbitration Association. You acknowledge that classarbitrations and class actions are not permitted and agree that you are giving up the ability toparticipate in any class action with respect to any Dispute. The Parties agree to abide by anydecision and award rendered in the proceedings. The decision and award will be final andconclusive and may be entered in any court having jurisdiction thereof. This Agreement will begoverned by the laws of the State of California without regard to its conflicts of law provisions.The UN Convention on the International Sale of Goods shall not apply to this Agreement and isexpressly disclaimed. The English language version of this Agreement shall govern and allproceedings conducted shall be conducted in English.
- Severability. If one or more provisions of this Agreement are held to be unenforceable underapplicable law the Parties agree to renegotiate the provision in good faith. In the event theParties cannot reach a mutually agreeable and enforceable replacement for the provision, then:(i) the provision shall be excluded from this Agreement; (ii) the balance of this Agreement shallbe interpreted as if the provision were so excluded; and (iii) the balance of this Agreement shallbe enforceable in accordance with its terms.
- Publicity. Neither Party shall issue a press release, advertisement or public statementconcerning the existence or contents of this Agreement or the relationship of the Parties withoutthe prior written consent of the other Party. Notwithstanding the foregoing, Viator may issue apress release, advertisement or public statement referencing Partner as a member of Viator'sTravel Agent Partner Program.
- Relationship of the Parties. The relationship created by this Agreement is solely that ofindependent contractors and the Parties hereby acknowledge and agree that nothing in thisAgreement will be deemed to constitute either Party as an employee or an agent of the otherParty. This Agreement will not be construed as constituting a partnership or create any otherform of joint venture. Neither Party will have any power or express or implied authorization tobind the other Party or to assume or to create any obligation or responsibility, express or implied,on behalf of the other Party or in the other Party's name.
- Notices. Unless otherwise provided herein, all notices under this Agreement from Partner toViator shall be in writing and shall be delivered to the addresses set forth below, and such noticesshall be deemed to have been given upon receipt. Notwithstanding the foregoing, Viator mayprovide notices to Partner via email or by other online messaging tools in connection withamendments to this Agreement or otherwise:
Attn: Chief Financial Officer
360 3rd Street, Suite 400
San Francisco CA 94107
360 3rd Street, Suite 400
San Francisco CA 94107