This Collaboration Agreement Memorandum of Understanding (“Agreement”) is entered into as of the date it is signed by the Tour Operator representative (“Tour Operator”) and between Wheel the World Inc. (“WTW”) a Delaware public benefit corporation (each a “Party” and, collectively, the “Parties”).
This is the draft structure, with the objectives:
We will identify travel products for Wheel the World travel experiences: transportation, accommodation and activities:
The Company identifies the attractive tours and activities at the destination, develops logistically efficient accessible routes, and determines the accommodation and local transportation suitable for the needs of customers with disabilities in order to create Wheel the World travel experiences
The agreed travel experiences will be available to customers to buy on the platform gowheeltheworld.com and the Tour Operator agrees to operate them.
The Tour Operator operates the agreed tours and activities that the Company markets and distributes through its travel distribution channel (gowheeltheworld.com) for purchase (i.e., booking) by the customers, all as described further in this agreement.
Wheel the World will sell those tours and activities, by marking up Tour Operator activity fees by up to 20%, and the Tour Operator will operate the travel experience.
Wheel the World will provide Customer Support prior to the trip and will deliver every traveller to the Tour Operator according to Tour Operator requirements.
Conditions of operation:
WTW will book and sell the travel experiences created.
Before any purchase, we will check out availability with the Tour Operator.
The Tour Operator should be able to confirm the availability within 3 business days.
Once the WTW customer purchases, we will send a confirmation of the purchase to the Tour Operator with all customer contact information and all other booking details requested by the Tour Operator.
WTW will pay the Tour Operator according to Tour Operator payment policy within 3 days after the booking was made.
The Tour Operator will execute the sold travel experience.
The Tour Operator needs to have a commercial general liability insurance policy.
WTW also has an insurance policy of $1M US dollars on incidents and $2M US dollars on
aggregate, general and professional liabilities.
The Company will provide customers with important information regarding the risks of the experience and the participants’ responsibilities.
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; and
WHEREAS, the Parties intend to add Experiences managed by the above identified Tour Operator to the Platform pursuant to this Agreement.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
Responsibilities of the Parties:
Prior to adding any given Experience to the Platform, the Parties shall agree upon the Tour Operator’s fees for the Experience (the “TO Fees”), the payment schedule for the TO Fees, the dates for the experience, and any additional terms or conditions associated with the experience. In furtherance of the foregoing, the Tour Operator agrees to provide all such information that the Company may request to review the proposed Experience and the Tour Operator understands and agrees that the Company may, in its sole discretion, decline to post any proposed Experience on the Platform.
Upon such agreement, the Company agrees to market the Experience and make the Experience available for booking and purchase by the Platform’s customers consistent with the terms and conditions agreed upon by the Parties for such Experience.
After customers have booked the Experience on the Platform, the Tour Operator shall manage and operate the Experience consistent with the agreement of the Parties for the Experience and consistent with this Agreement.
Term and Termination
This Agreement is effective as of the date on which the Tour Operator accepted this Agreement and will remain in effect thereafter unless terminated in accordance with this Agreement. Either Party may terminate this Agreement upon 30 days written notice to the other Party. Upon termination, the Tour Operator agrees to return any and all property provided by the Company in the condition it was received and the Tour Operator shall only be paid for Experiences completed prior to the date of termination.
Rates and Payments
The Company has the right to set the price that users will pay for each Experience, provided that the Company shall not charge more than twenty percent (20%) above the TO Fees for any given Experience. The price for each Experience will be jointly agreed upon before the Company markets an individual Experience.
The Company will be responsible for collecting funds from its customers for the Experience and will pay the Tour Operator the agreed TO Fees on the payment schedule agreed upon by the Parties for each Experience.
Except as specifically agreed upon by the Parties from time to time, each Party shall be responsible for its own expenses in furtherance of this Agreement and any Experience.
Bookings, cancellations and modifications
When a customer requests to book an Experience on the Platform, the Company shall communicate the booking request to the Tour Operator within 24 hours of receipt of such request via email or such other method as the Parties agree upon. Within 3 working days of receipt of a booking request from the Company, the Tour Operator shall inform the Company whether such booking is confirmed or is refused. For any booking to be effective it must be confirmed by the Tour Operator.
In the event that a user requests to cancel or modify an accepted booking or a booking request, the Company shall communicate such request to the Tour Operator within 24 hours of such request. Within 3 working days of receipt of such request from the Company, the Tour Operator shall inform the Company whether such requested modification or cancellation is confirmed or is refused.
The Tour Operator agrees to obtain and maintain commercial general liability insurance with policy limits of no less than $1,000,000 US Dollars per occurrence for the duration of this Agreement. Upon the Company’s request the Tour Operator shall furnish proof of insurance for each year during the term of this Agreement.
Representation and Warranties
The Tour Operator represents and warrants to the Company each of the following:
that each Experience will strictly conform with all information provided to the Company for each Experience;
that it is duly licensed (as applicable) and has the qualifications, the experience, and the ability to properly perform the obligations hereunder and to manage and operate each Experience;
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;
that it is a duly organized and validly existing legal entity in its jurisdiction of incorporation;
that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement;
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
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.
Intellectual Property & Publicity Rights
Each Party recognizes and agrees that, except as specified herein, nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any intellectual property or other materials disclosed under this Agreement. Notwithstanding the foregoing, the Tour Operator grants the Company a license to use all materials provided to the Company during the term of this Agreement for the purpose of posting Experiences on the Platform and for the purpose of the Company’s promotion of the Platform.
Each Party may disclose information to the other Party, or otherwise learn such information, that is designated as confidential or that reasonably should be understood to be confidential (“Confidential Information”). Each Party agrees to only use the other Party’s Confidential Information for its intended purpose and agrees to maintain the confidentiality of Confidential Information during the term of this Agreement and for a period of two years following termination of this Agreement, except that the non-disclosure and use restriction obligations shall survive with respect to Confidential Information for as long as such Confidential Information retains its status as a trade secret under applicable law. Each Party shall provide prompt notification to the other Party of any unauthorized access to or disclosure of the other Party’s Confidential Information. The term “Confidential Information” shall not include any information that is or becomes publicly and widely known through no wrongful act of the Parties, nor information that was independently developed by a Party without use of the other Party’s Confidential Information. Notwithstanding the above, nothing in this section shall prohibit either Party from providing Confidential Information to its insurers, attorneys, or to a government agency, law enforcement agency, or emergency medical personnel as reasonably necessary to protect its interests or as required by law.
Nothing contained in this Agreement shall limit Company’s right to engage, or otherwise work with, any third parties in Tour Operator’s field of specialization or any other field.
COMPANY DOES NOT ASSUME RESPONSIBILITY FOR ANY ACTIONS BY ANY INDIVIDUAL WHO PURCHASES OR PARTICIPATES IN ANY EXPERIENCE. FURTHER, COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE THE TRUTHFULNESS OR ACCURACY, OR OTHERWISE ASSUME RESPONSIBILITY FOR ANY INFORMATION PROVIDED BY ANY USER.
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) the Tour Operator’s actions or omissions in connection with any Experience, or (b) any breach of this Agreement by the Tour Operator.
Likewise, the Company shall hold harmless, defend and indemnify the Tour Operator 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) the Company’s actions or omissions, or (b) any breach of this Agreement by the Company.
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.
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.
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.
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.
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.
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.
The Company and the Tour Operator hereby acknowledge the receipt and understanding of all the terms and conditions as outlined in this Agreement.