Equipment Contract Memorandum of Understanding
This Equipment Contract Memorandum of Understanding (“Agreement”) is entered into as of by and between Wheel the World Inc., a Delaware public benefit corporation (“Company”) and (“Tour Operator”) (each a “Party” and, collectively, the “Parties”)
WHEREAS, the Company operates a travel platform (the “Platform”) located at gowheeltheworld.com, as well as other related channels operated by the Company, in which individuals with disabilities can find and book accessible tours, adventures, experiences, and activities (the “Experiences”) that are managed by third-party tour operators, including the above-identified Tour Operator; and
WHEREAS, the Company intends to lend certain mobility adaptive equipment (the “Equipment”) to Company in connection with one or more Experience pursuant to this Agreement.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Responsibilities of the Parties:
The Company shall have the sole discretion to lend Equipment to the Tour Operator for one or more Experiences that have been approved by the Company to be on the Platform.
The Tour Operator agrees to pay any reasonable fees imposed by the Company for the use of such Equipment. The Tour Operator may only use the Equipment and any associated materials strictly for the purpose of assisting with the Experience and solely for the users who booked the Experience through the Platform. Further, the Tour Operator agrees to abide by any terms and conditions, including both verbal and written instructions, associated with the use of the Equipment, including without limitation a compulsory training and certification for the Tour Operator staff pertaining to the assistance of people with disabilities, Equipment usage, and maintenance. The Tour Operator agrees to use the provided Equipment responsibly and cautiously, ensuring timely maintenance.
2. Rights in Property
The Company, or its applicable licensors, lessors, vendors, or other similar third parties (as applicable), shall remain the rightful owner of any and all titles, rights, and interests in the Equipment and any materials associated with the Equipment. The Tour Operator is only granted a limited lease to use the Equipment and related materials associated with the Equipment strictly in compliance with this Agreement and solely for as long as necessary to fulfill the purposes of this Agreement. The Equipment and any related materials associated with the Equipment shall be returned by the Tour Operator to the Company promptly upon request by the Company. The Tour Operator shall bear all costs for any damage to the Equipment, reasonable wear and tear excepted.
3. Delivery of Equipment
When Equipment is provided to the Tour Operator by the Company, the risk of loss and responsibility for any damage to the Equipment (reasonable wear and tear excepted) for the Equipment passes from the Company to the Tour Operator upon receipt and prompt inspection and acceptance of the Equipment by the Tour Operator. Any damages to the Equipment discovered upon inspection and claimed by the Tour Operator to have occurred prior to receipt shall be brought to the attention of the Company promptly, and in no event later than two (2) business days following receipt of the Equipment by the Tour Operator, at which time the Equipment shall be deemed accepted.
When Equipment is returned to the Company by the Tour Operator, the risk of loss and responsibility for any damage to the Equipment (reasonable wear and tear excepted) for the Equipment passes from the Tour Operator to the Company upon receipt and prompt inspection of the Equipment by the Company. Any damages to the Equipment discovered upon inspection and claimed by the Company to have occurred prior to receipt shall be brought to the attention of the Tour Operator promptly, and in no event later than two (2) business days following receipt of the Equipment by the Company, at which time the Equipment shall be deemed accepted.
The Tour Operator shall comply with all reasonable instructions provided by the Company pertaining to the shipment, delivery, and inspection of the Equipment.
4. Representation and Warranties
The Tour Operator represents and warrants to the Company each of the following:
(a) that it will use its best efforts to perform the obligations hereunder and to manage and operate each Experience consistent with standards applicable in Tour Operator’s industry(b) that it is a duly organized and validly existing legal entity in its jurisdiction of incorporation; (c) that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement; (d) that the performance of such obligations and duties does not and will not conflict with or result in a breach of any other agreement to which it is bound or any judgment, order, or decree by which it is bound; and (e) that no approval, authorization, consent, permission, or waiver to or from, or notice, filing, or recording to or with, any person, entity or governmental authority is necessary for the execution and delivery of this Agreement or the performance of its obligations pursuant hereto.
COMPANY DOES NOT ASSUME RESPONSIBILITY FOR ANY DAMAGE TO PERSONS OR PROPERTY CAUSED BY THE EQUIPMENT OR OTHERWISE RELATED TO THE TOUR OPERATOR’S USE OF THE EQUIPMENT. FURTHER, COMPANY DOES NOT WARRANT, ENDORSE, OR OTHERWISE ASSUME RESPONSIBILITY FOR THE EQUIPMENT NOR FOR ANY INFORMATION PROVIDED BY THE MANUFACTURER OF THE EQUIPMENT.
6. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY NOR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARENT, SUBSIDIARIES, AND OTHER AFFILIATES WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO TOUR OPERATOR’S INDEMNIFICATION OBLIGATIONS CONTAINED BELOW.
The Tour Operator shall hold harmless, defend and indemnify the Company and its directors, officers, employees, agents, parent, subsidiaries, and other affiliates from and against any and all liability, loss, damage, expense, costs (including without limitation reasonable attorneys’ fees) of every nature arising out of (a) any damage to the Equipment, reasonable wear and tear excepted, (b) the Tour Operator’s actions or omissions in connection with the use of the Equipment, or (c) any breach of this Agreement by the Tour Operator.
8. Dispute Resolution
To the extent that a dispute arises between the Parties and is not resolved informally by the Parties, any legal action or other legal proceeding arising out of or relating to this Agreement or the enforcement of any provision of this Agreement shall be resolved through binding arbitration administered by JAMS in Alameda County, California. Notwithstanding the foregoing, either Party may bring a lawsuit solely for injunctive relief without engaging in the dispute resolution process described in this Section.
(a) Relationship of the Parties
The Parties agree that the relationship of the Parties shall be that of independent contractors. Nothing contained in this Agreement shall be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship.
(B) No Third-party Beneficiaries
This Agreement is not intended to and shall not be construed to give any third party any interest or rights (including, without limitation, any third party beneficiary rights) with respect to or in connection with this Agreement.
(C) Successors And Assigns
This Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors and assigns. Neither Party may assign its rights and obligations under this Agreement without the other Party’s written consent, except that either Party may assign this Agreement in its entirety, without consent of the other Party, to its parent, subsidiary, or affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
(d) Modifications and Waiver
No terms in this Agreement may be changed except by an amendment or separate agreement executed in writing by an authorized representative of both Parties. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
(e) Entire Agreement
This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter contained in this Agreement and supersedes all prior or contemporaneous discussions, understandings, and agreements, whether oral or written, between the Parties relating to the subject matter of this Agreement.
Should any provision of this Agreement be held to be void or unenforceable, the remaining provisions shall remain in full force and effect, to be read and construed as if the void or unenforceable provisions were originally deleted.
Any notice made pursuant to this Agreement will be in writing and will be deemed delivered on (i) the date of delivery if delivered personally, (ii) five (5) calendar days after mailing if duly deposited in registered or certified mail or express commercial carrier, or (iii) upon confirmed receipt by email, addressed to the Party to be notified at the address or email address shown on the signature page of this Agreement or to such other address or email address as may be hereafter designated by either Party.
This Agreement may be executed in counterparts which taken together will be regarded as one and the same Agreement.
10. AcceptanceThe Company and the Tour Operator hereby acknowledge the receipt and understanding of all the terms and conditions and attachments as outlined in this Agreement.
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Signed by Camilo Navarro, President of Wheel the World Inc
Signed On: April 25, 2019
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Document Name: Equipment Contract Memorandum of Understanding
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