1. Applicability. These terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by Us, The GR8GROUP, LLC, a Florida limited liability company, and its officers, board, employees, agents, affiliates and subsidiaries (collectively, the “Service Provider,” “We,” “Us” or “Our”) to You (“Client,” “You” or “Your”). We require that any and all individuals, clients, groups, organizations, business, spectators or others who may participate in experiences, activities, events, or travel related services organized by Us adhere to the following terms and conditions, as amended from time to time. The accompanying Client Services Agreement (the “Services Agreement“) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Services Agreement, these Terms will govern, unless the Services Agreement expressly states that the terms and conditions of the Services Agreement will control.
2. Services. Service Provider will provide the services to You as described in the Services Agreement (the “Services”) in accordance with these Terms.
3. Performance Dates. Service Provider will use reasonable efforts to meet any performance dates specified in the Services Agreement, and any such dates will be estimates only.
4. Client’s Obligations. Client will: (a) cooperate with Service Provider in all matters relating to the Services; (b) respond promptly to any Service Provider request to provide information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement; (c) provide such client materials or information as Service Provider may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (d) comply with all applicable laws in relation to the Services.
5. Client’s Acts or Omissions. If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its Participants (as that term is defined in the Services Agreement), Service Provider will not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Change Orders. If either party wishes to change the scope or performance of the Services, it will submit details of the requested change to the other party in writing. Service Provider will, within a reasonable time after such request, provide a written estimate to Client of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges for the Services arising from the change; (iii) the likely effect of the change on the Services; and (iv) any other impact the change might have on the performance of this Agreement. Promptly after receipt of the written estimate, the parties will negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party will be bound by any Change Order unless mutually agreed upon in writing. Notwithstanding, Notwithstanding, Service Provider may, from time to time, change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Services Agreement or any supplemental document to such Services Agreement, including all itineraries.
7. Fees and Expenses; Payment Terms; Interest on Late Payments. In consideration of the provision of the Services by Service Provider and the rights granted to Client under this Agreement, Client will pay the fees set forth in the Services Agreement. Client agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services. Client will pay all invoiced amounts due to Service Provider according to the payment schedule and terms as provided for in the Service Agreement or, if the Service Agreement does not provide a payment schedule, within the timeframe set forth on the Service Provider’s invoice. Client will make all payments hereunder in US dollars by wire transfer of immediately available funds, check, or cashier’s check. In the event payments are not received by Service Provider within 14 days after becoming due, Service Provider may: (i) charge interest on any such unpaid amounts at a rate of 5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (ii) suspend performance for all Services until payment has been made in full.
8. Taxes. Client will be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder.
a. Termination for Convenience. Client may terminate this Agreement by delivering thirty (30) days’ advance written notice to Service Provider. In the event of termination, Client acknowledges and agrees that any and all payments made hereunder are non-refundable. Client will remain liable for all outstanding expenses incurred by Service Provider on behalf of Client, or any Participant, but Client will not be liable for the balance of remaining payments, if any.
b. Termination for Cause. Either party may terminate this Agreement due to the occurrence of any of the following events: (a) bankruptcy or insolvency of either party; or (b) in the event the other party materially breaches this Agreement and fails to cure such breach within five (5) days of written notice thereof. A material breach includes, but is not limited to, violations of law or covenants contained in any signed documentation between the parties. In the event that this Agreement is terminated for cause by Service Provider due to Client’s material breach hereunder, Client will remain liable for all outstanding expenses properly incurred by Service Provider on Client’s behalf. In the event that this Agreement is terminated for cause by Client due to Service Provider’s material breach hereunder, Service Provider will immediately return any and all payments made by Client to Service Provider pursuant to this Agreement, in addition to any other remedies Client may have at law or equity.
10. Third Party Service Providers. Certain products, services, and content made available through or organized by the Service Provider are provided by third parties (collectively, “Third-Party Providers”).
11. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Client under this Agreement or prepared by or on behalf of Service Provider in the course of performing the Services, including any items identified as such in the Services Agreement (collectively, the “Deliverables”) will be owned by Service Provider. Service Provider hereby grants Client a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.
12. Confidential Information.
a. All non-public, confidential or proprietary information of Service Provider, including, but not limited to, trade secrets, technology, information pertaining to business operations, strategies, and business plans, information pertaining to customers, vendors, suppliers, affiliates, pricing, marketing, and terms and conditions of contracts and transactions between Service Provider and its customers, vendors and suppliers (collectively, “Confidential Information”), disclosed by Service Provider to Client on or after the Effective Date, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and will not be disclosed or copied by Client without the prior written consent of Service Provider.
b. Confidential Information does not include information that is: (i) in the public domain; (ii) known to Client at the time of disclosure; (iii) rightfully obtained by Client on a non-confidential basis from a third party; or (iv) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Client.
c. Client agrees to use the Confidential Information only to make use of the Services and Deliverables and to treat and hold all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of the Company in each instance, and not to use any Confidential Information for any purpose except to the extent required to make use of the Services and Deliverables. The Client will immediately notify the Service Provider in writing upon discovery of any disclosure (whether inadvertent or otherwise), loss, misuse, or misappropriation of Confidential Information in contravention of this Agreement. The Confidential Information is the exclusive property of Service Provider and any disclosure of Confidential Information to the Client will not be construed as an assignment, grant, option, license or other transfer of any such right, title or interest whatsoever.
d. The Client understands and agrees that the Confidential Information of Service Provider constitutes a valuable asset from which it derives an economic benefit and a competitive advantage in the marketplace, the disclosure of which would cause substantial loss of goodwill and financial injury. Service Provider will be entitled to injunctive relief for any violation of this Section.
13. Relationship. In Our role of assisting You in finding travel suppliers and event/activity coordinators, as well as making arrangements that meet Your individual needs, Service Provider acts an independent contractor. We consider various factors in identifying suppliers to You and recommending specific itineraries. We want You to be aware that certain Third-Party Providers pay us commissions as well as incentives for reaching sales targets or other goals, and from time to time may also provide incentives to our travel counselors. Certain Third-Party Providers may also provide compensation to us for various marketing and administrative services that we perform for them, such as granting them access to our marketing channels, participating in marketing programs and supporting other initiatives. In identifying Third-Party Providers and recommending itineraries, we may consider a number of factors, including but not limited to, Third-Party Provider availability and Your preferences. The relationships we have with Third-Party Providers may also influence the Third-Party Providers we identify and the itineraries we recommend. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties.
14. Terms of Purchase. Client understands that additional terms and conditions dictated by the applicable Third-Party Provider will apply to Client’s reservation and purchase of products and services through Us. You agree to abide by such terms and conditions, including payment of all amounts when due and compliance with the applicable Third-Party Provider’s policies, rules, and restrictions regarding availability and use of fares, products, and services. You understand that any violation of any such Third-Party Provider’s terms, conditions, policies, rules, or restrictions may result in (a) Your forfeiting any monies paid for such reservation or purchase, (b) cancellation of Your reservation or purchase or (c) Your being denied access to any flights, hotels or other products or services. You acknowledge that You will be responsible for all charges, fees, duties, taxes and assessments arising out of Your participation in the Services.
15. Representation and Warranty.
a. Service Provider represents and warrants to Client that it will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner and will devote adequate resources to meet its obligations under this Agreement. The Service Provider will not be liable for a breach of the warranty set forth in Section 15(a) unless Client gives written notice of the defective Services, reasonably described, to Service Provider within 3 days of the time when Customer discovers or ought to have discovered that the Services were defective. In such case, Service Provider will, in its sole discretion, either: (i) repair or re-perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate. THE REMEDIES SET FORTH IN THIS SECTION 15(a) WILL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 15(a).
b. Client represents and warrants to Service Provider that: (i) it has the right to enter into this Agreement, to grant the rights granted herein and to perform fully all of its obligations hereunder; (ii) it will comply with any and all applicable laws and regulations in effect, including those in any jurisdiction where the Services are provided; and it of sufficient legal age to participate in the Services and to create binding legal obligations for any liability which it may incur as a result of its participation in the Services; and (iv) all information supplied by Client in connection with the participation of the Services and Agreement is true and correct.
16. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 14(A) ABOVE, SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
17. Disclaimer Regarding Suppliers. ALL THIRD-PARTY PROVIDERS, INCLUDING BUT NOT LIMITED TO THE AIR CARRIERS, HOTELS, CAR RENTAL AGENCIES, CRUISE LINES, TOUR OPERATORS AND OTHER SUPPLIERS PROVIDING TRAVEL OR OTHER SERVICES TO YOU ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OR AGENTS OF SERVICE PROVIDER. SERVICE PROVIDER ACTS SOLELY AS A SALES AGENT FOR THE THIRD-PARTY PROVIDERS AND IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES OR NEGLIGENCE OF ANY SUCH THIRD-PARTY PROVIDERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE OR LOSS, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. SERVICE PROVIDER WILL HAVE NO LIABILITY AND WILL MAKE NO REFUND IN THE EVENT OF ANY DELAY, CANCELLATION, OVERBOOKING, STRIKE, ACTS OF WAR, TERRORISM, DISEASE OR OTHER FORCE MAJEURE EVENT OR OTHER CAUSE BEYOND ITS DIRECT CONTROL, AND SERVICE PROVIDER HAS NO RESPONSIBILITY FOR ANY ADDITIONAL EXPENSE, OMISSIONS, DELAYS, RE-ROUTING, ACTS OR OMISSIONS OF ANY GOVERNMENTAL AUTHORITY. THE FACT THAT SERVICE PROVIDER INCLUDES OR OFFERS ANY PRODUCT OR SERVICE DOES NOT MEAN SERVICE PROVIDER IS ENDORSING OR RECOMMENDING SUCH PRODUCT OR SERVICE.
18. Limitation of Liability.
a. SERVICE PROVIDER AND ITS THIRD-PARTY PROVIDERS ASSUME NO RESPONSIBILITY, AND WILL NOT BE LIABLE FOR, ANY DAMAGES TO, OR ANY INJURY THAT MAY RESULT FROM YOUR PARTICIPATION IN THE SERVICES OR YOUR INTERACTIONS WITH ANY THIRD-PARTY PROVIDERS. IN NO EVENT WILL SERVICE PROVIDER OR ANY THIRD-PARTY PROVIDERS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO LOST PROFITS OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH (A) THE SERVICES; (B) ANY FAILURE OR DELAY THEREOF; OR (C) THE PERFORMANCE OR NON-PERFORMANCE BY SERVICE PROVIDER OR ANY THIRD-PARTY PROVIDER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO SUCH PARTY OR ANY OTHER PARTY.
b. IF, NOTWITHSTANDING THE FOREGOING, PROVIDER OR ANY SERVICE PROVIDER SHOULD BE FOUND LIABLE FOR ANY LOSS OR DAMAGE THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH ANY OF THE ABOVE DESCRIBED FUNCTIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, THE LIABILITY OF SERVICE PROVIDER AND THIRD-PARTY PROVIDER WILL IN NO EVENT EXCEED, IN THE AGGREGATE, THE GREATER OF (A) HE AGGREGATE AMOUNTS PAID TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT; OR (B) US $100.00.
19. Travel to Certain Destinations. You acknowledge and agree that travel to certain destinations may involve more risk than travel to other destinations. Service Provider urges Client to review current travel advisories, warnings and restrictions issued by the United States government or any governmental authorities in the local jurisdiction of travel before booking any travel. In addition, unless otherwise expressly agreed to in writing by Us, You are responsible for determining and obtaining proper documentation for travel to international destinations. For more information please visit www.state.gov, www.tsa.gov, www.dot.gov, www.faa.gov, www.cdc.gov, www.treas.gov/ofac and www.cbp.gov. Some countries may require aircraft cabin insecticide treatment for in-bound foreign flights. We strongly recommends that You periodically review www.visacentral.com for the most up to date and accurate entry/exit requirements for Your travel destination. Due to frequent changes, Service Provider cannot guarantee the accuracy of the information provided and expressly disclaims any liability for any inaccurate or incomplete information contained on any site listed herein.
BY COORDINATING ACTIVITIES WHICH REQUIRE TRAVEL TO PARTICULAR DESTINATIONS, NEITHER SERVICE PROVIDER NOR ANY THIRD-PARTY PROVIDER REPRESENTS OR WARRANTS THAT TRAVEL TO SUCH DESTINATIONS IS SAFE, ADVISABLE OR WITHOUT RISK, AND NEITHER SERVICE PROVIDER NOR ANY THIRD-PARTY PROVIDER IS LIABLE FOR ANY DAMAGES OR LOSSES THAT MAY RESULT FROM TRAVEL TO SUCH DESTINATIONS.
20. Release. Service Provider does not provide liability insurance for the protection of Client and Participants who may participate in the Services organized by Service Provider. Travel or other liability insurance must be obtained directly by You. In consideration for Your participation in the Services, You hereby release, remise and forever discharge Service Provider, its officers, board, employees, agents, affiliates and subsidiaries, jointly and severally, from any and all actions, causes of actions, claims and demands for, upon or by reason of any damage, loss or injury, which hereafter may be sustained by participating in the Services (“Release”). This Release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist. The provisions of any state, federal, local or territorial law providing substance to the effect that this Release will not extend to claims, demands, injuries or damages which are known or unsuspected to exist at this time to the person executing such Release, are hereby expressly waived.
a. By Service Provider. Service Provider will indemnify, defend and hold harmless Client from and against all lawsuits, damages, losses and expenses including reasonable attorneys’ fees, arising out of or resulting from Service Provider’s gross negligence or willful misconduct.
b. By Client. To the fullest extent permitted by law, Client will indemnify, defend and hold harmless Service Provider, its affiliates, and their respective officers, directors, employees, attorneys, agents, representatives, subsidiaries, partners, members, controlling persons, successors and permitted assigns (herein collectively, “Servicer Indemnitees”) from and against all claims, damages, losses, and expenses of any kind including but not limited to attorneys’ fees, arising out of or resulting from Client’s performance or obligations under this Agreement caused in whole or in part by the gross negligence or willful misconduct of Client, including but not limited to any violation of the terms of this Agreement. Such obligation will not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity, which would otherwise exist as to any party or person described in this Section. It is further understood and agreed that said participation in the Services is not to be construed as an admission of any liability and acceptance of assumption of responsibility by Servicer Indemnitees, jointly and severally, for all damages and expenses for which Servicer Indemnitees become liable as a result of any alleged act of the Client. Any and all activities depicted on any of Service Provider’s promotional or marketing materials are to be performed at Your own risk.
22. Waiver. No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
23. Force Majeure. The Service Provider will not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 30 days, Customer will be entitled to give notice in writing to Service Provider to terminate this Agreement.
24. Assignment. Client will not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
Governing Law; Venue. This Agreement and all questions of interpretation, construction and enforcement hereof, and all controversies arising hereunder, will be governed by the applicable statutory and common law of the state of Florida, U.S.A. Venue for any legal proceedings will be in Miami-Dade County, Florida, U.S.A. and the parties hereby irrevocably submit to the exclusive jurisdiction of Miami-Dade County, Florida, U.S.A., and irrevocably waive the defense of inconvenient forum to the maintenance of any action or proceeding in such venue. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing party.
26. Arbitration. Any controversy or claim arising out of or relating to this Agreement, including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach hereof, will be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules or, as applicable, be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
27. Severability. In the event any term or provision of this Agreement will be held illegal, unenforceable or inoperative as a matter of law, the remaining terms and provisions of this Agreement will not be affected thereby, but each such term and provision will be valid and will remain in full force and effect.
28. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) will be in writing and addressed to the parties at the addresses set forth in the Services Agreement or to such other address that may be designated by the receiving party in writing. All Notices will be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
29. Modification. Service Provider reserves the right to revise the terms and conditions hereof at any time in its sole and absolute discretion and Client agrees to be apprised of and bound by the terms and conditions hereof at all times.
30. Captions. Captions and paragraph headings contained in this Agreement are for convenience and reference only and in no way define, describe, extend or limit the scope or intent of this Agreement nor the intent of any provision hereof.