spontigo

Terms of Use

Last Updated: Oct 21st, 2024

Thank you for your interest in and use of Spontigo’s Services (as defined more fully herein). Please read these Terms of Use carefully as they govern Your use of (which includes access to) Spontigo’s Services, including without limitation any of Spontigo’s websites, software, and/or services. These Terms of Use constitute a binding legal agreement between You and Spontigo (the “Agreement”). By accessing and/or otherwise using any portion of Spontigo’s Services, including without limitation any of Spontigo’s websites, software and/or services, You are accepting, and hereby covenant and agree to be bound by, these Terms of Use. If you are not willing to be bound by these Terms of Use, You may not access or otherwise use any portion of Spontigo’s Services.

DEFINED TERMS

1. As used herein, “You”, “Your”, “Customer”, “Customers”, shall refer to any employee, agent, officer, manager, representatives, customer, and/or user of Spontigo’s Services, including, without limitation, Spontigo’s website(s), Platform, software, and/or applications, all Terms of Use of which are incorporated as is set forth fully herein.
2. As used herein, “Spontigo”, “We”, “Us”, “Our”, shall refer to Spontigo, Inc.
3. As used herein, the “Services” shall refer to software as a service, concierge services, data analytics, and software solutions provided by Spontigo. It is important to note that while we help users book activities and experiences, we are not an experience provider. When You make a booking, you will be purchasing the activity from a third-party supplier.
4. As used herein, the “Products” shall refer to tours, activities and other travel-related services provided by Supplier.
5. As used herein, the “Spontigo Platform”, “Platform”, shall refer to Spontigo’s Services, and/or various distribution and marketing channels.
6. As used herein, “Supplier”, “Suppliers”, shall refer to You or any entity that has provided Spontigo their/Your Products that they wish to be listed and booked via the Spontigo Platform. Sections 39-50 of this Agreement apply only to Suppliers.
7. Spontigo and You shall be collectively referenced herein as the “Parties”.

PROVISIONS REGARDING USAGE AND RIGHTS

1. Term. The initial term of this Agreement shall commence upon usage of Services according to all of the Terms of Use set forth herein. The Parties acknowledge that this Agreement shall continue unless otherwise canceled at any time by either Party. Spontigo retains the right to deny You access to the Services at any time and for any reason. In the event of cancellation, You may not access or otherwise use any portion of Spontigo’s Services. Supplier will honor all Product purchases made before the termination or expiration of this Agreement unless Spontigo requests otherwise. However, Spontigo reserves the right, at its sole discretion, to withdraw its booking Services. This action may override a Product’s cancellation policy and effectively cancel a booking if Spontigo determines it necessary or beneficial to protect the interests of Customers, Supplier, or Spontigo.

2. Authorized Uses. You agree to use Spontigo’s Services as contemplated herein. Subject to the Terms of Use of this Agreement, Spontigo grants You a limited, non-exclusive, and non-transferable right, during the Term of this Agreement, to:

1. Access and utilize Spontigo’s software, website(s), and other technological services on Your computer systems, mobile phones, websites, or other devices, for use solely to facilitate Your authorized use of the Services (solely for Your business operations); and
2. Spontigo may, from time to time in its sole discretion, develop and provide Software updates, which may include, without limitation, upgrades, bug fixes, patches and other error corrections and/or new features (collectively, the “Updates”). Updates may also modify or delete, in its entirety, certain features and functionality of the Services, or cause data (whether Your, Spontigo’s, or otherwise) to be lost. You acknowledge and agree that Spontigo has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Services. You agree to promptly install all Updates and acknowledges and agree that the Services or portions thereof may not properly operate should You fail to do so.

3. Restricted Uses. You agree it shall not:

3. Sell, rent, lease, or, except as expressly permitted in this Agreement, license, sublicense, distribute, or otherwise permit third parties to access or use the Services;
4. Use Spontigo’s Services, in Spontigo’s sole discretion, that imposes excessive traffic demand or load on Spontigo’s infrastructure, scrapes or programmatically accesses Spontigo’s Services;
5. Use Spontigo’s Services if you are under the age of 18;
6. Use Spontigo’s Services for commercial use and/or to make fraudulent or illegitimate Bookings;
7. Use Spontigo’s Services, software, website(s), and/or other technological services to provide outside or additional services to third parties (including Your Yous) as a service, as a frame or embed, or for any other purposes without Spontigo’s written approval;
8. Upload or provide for processing, or use Spontigo’s Services, software, website(s), and/or other technological services to store, display or transmit, any information or material that is illegal, defamatory, offensive, abusive, obscene, tortious, or that violates privacy or intellectual property rights;
9. Use, or attempt to use, any of Spontigo’s Services, including without limitation its software, website(s) and/or other technological services, for any form of high risk activity, including activities where the use or failure of the Services could lead to death, personal injury, or environmental damage.
10. Use, or attempt to use, any of Spontigo’s Services, including without limitation its software, website(s) and/or other technological services, to store or transfer any information or materials that are controlled, governed, or otherwise protected under any applicable export and/or re-export control laws and regulations of the United States or any other foreign jurisdiction.
11. Use Spontigo’s Services, software, website(s), and/or other technological services to harm, threaten, or harass another person or organization or in any way violate applicable laws or regulations;

If You engages in any one or more of the above Restricted Uses, Spontigo shall have the right, at its sole discretion, to charge You for any excess uses at Spontigo’s then-current rates, or to pause, cancel, or otherwise terminate this Agreement and delete Your account with Spontigo.

4. Protection of Confidential Information. As used herein, “Confidential Information” means any non-public business information, know-how, trade secrets, client information, personal information, and other information, in any form, that is designated as confidential or that a reasonable person should understand to be confidential due to the nature of the information or the circumstances of disclosure, and is disclosed by or on behalf of You, or Your employees, agents, officers, managers, and/or representatives to Spontigo, or Spontigo’s employees, agents, officers, managers, and/or representatives, directly or indirectly, in writing, orally, or by inspection of tangible objects, whether before or after the Agreement between the Parties. Confidential Information includes, without limitation, You reservation data, analytics, and any other sensitive data provided by You. Notwithstanding anything to the contrary, “Confidential Information” excludes information that: (a) is or becomes generally publicly available through no action or inaction of Spontigo; (b) is already in the possession of Spontigo through a non-confidential basis at the time of disclosure by You; or (c) is independently developed by Spontigo without use of or reference to Your Confidential Information.

Spontigo covenants and agrees that Spontigo under this Agreement shall hold all Confidential Information in confidence, and shall not disclose the Confidential Information to any third party, except as expressly permitted under this Agreement. Spontigo further covenants and agrees to exercise commercially reasonable efforts, substantially equivalent to the efforts Spontigo takes to protect their own Confidential Information, to preserve and protect Your Confidential Information. If necessary, a Spontigo may disclose the Your Confidential Information only to Spontigo employees or agents who reasonably need to have access to such information to perform Spontigo’s obligations under this Agreement. Under such circumstances, Spontigo’s employees or agents who receive the Confidential Information shall be bound by obligations of confidentiality and nonuse at least as restrictive as the terms of this Agreement. Spontigo may disclose Your Confidential Information to its subcontractors, employees, agents, or other third parties in connection with performing the Services contemplated under this Agreement. Finally, a Spontigo may also disclose Your Confidential Information as required by law (such as to comply with a properly executed court order), so long as Spontigo: (a) gives You written notice of the requirement prior to the disclosure (where permitted) and reasonable assistance, at the Your expense, in limiting disclosure or obtaining an order protecting the Confidential Information from public disclosure; and (b) in the event Confidential Information is nevertheless required to be disclosed, discloses only such portion of Confidential Information as is advised by its counsel to be legally required, and takes reasonable steps to obtain confidential treatment of the Confidential Information so as to avoid any unnecessary further disclosure.

You acknowledges and agree it is responsible for the content, accuracy, availability, appropriateness, and legality of any data or other information You provides to Spontigo or accesses using Spontigo’s Services, including, without limitation, Spontigo’s website(s), and/or application(s).

5. Data Security. Spontigo agrees to implement and maintain commercially reasonable administrative, physical and technical safeguards, intended to protect against unauthorized access, use, disclosure, alteration, or destruction of information and data provided by, or delivered to, You. However, Spontigo cannot guarantee or otherwise ensure the safety of any such information and/or data provided by, or delivered to, You. In entering into this Agreement, You acknowledges its understanding that Spontigo is not a guarantor of the safety or security of any such information or data, and expressly waives any claim of liability it may have against Spontigo in conjunction with any foreseeable or unforeseeable data breach, disclosure, alteration, destruction, or other loss or manipulation (in any form) of information or data that arises as a result of the relationship contemplated and memorialized between the Parties under the terms of this Agreement. You further waives any claims related to, and agree that Spontigo shall not be held liable for, any viruses, worms, Trojan horses, or other code, malware, or program that may affect You or its business during the course of this Agreement, whether or not any such virus, worm, Trojan horse, code, malware, or program arises or gains access to Your system or network as a result of Spontigo’s Services or its delivery of the Services.

6. Intellectual Property. SPONTIGO EXPRESSLY RETAINS EXCLUSIVE OWNERSHIP OF ALL RIGHT, TITLE, AND INTEREST, INCLUDING ALL INTELLECTUAL PROPERTY RIGHTS, IN, TO AND UNDER THE SERVICES, ITS WEBSITE(S), SOFTWARE, DELIVERABLES, OR OTHER MATERIALS PROVIDED TO AND/OR CREATED FOR You AS PART OF THE SERVICES CONTEMPLATED UNDER THIS AGREEMENT, TOGETHER WITH ALL MODIFICATIONS, UPDATES, CUSTOMIZATIONS, ENHANCEMENTS, IMPROVEMENTS, AND ANY DERIVATIVE WORKS OF ANY OF THE FOREGOING. Your rights to use the Services, and any other software, deliverables, or other materials provided to and/or created for You as part of the Services provided under this Agreement, are limited to those expressly set forth in this Agreement and no other rights (express, implied, by estoppel, through exhaustion, or otherwise) are granted to You. Spontigo reserves all rights in and to its Services, its website(s), its mobile application(s), and any other software, deliverables, or other materials provided to and/or created for You as part of the Services contemplated under this Agreement. Any of Spontigo’s Services, and any other software, deliverables, or other materials provided to and/or created for You as part of the Services contemplated under this Agreement, delivered to You, or to which You may have access, shall not be deemed to have been sold, even if, for convenience, we make reference to words such as "sale" or "purchase" in any conversations, advertisements, or other documents. You agree to make no claim to any intellectual property stemming from the Services performed pursuant to this Agreement.

7. Service Availability. As part of providing its Services to You and others, Spontigo performs and maintains regular updates and backups according to its own internal policies and procedures, or as otherwise deemed appropriate and necessary, as determined in Spontigo’s sole discretion.  These updates and backups may result in interruptions and/or delays in Spontigo’s delivery of the Services. Likewise, unforeseen circumstances beyond Spontigo’s control may result in interruptions or delays in Spontigo’s delivery of the Services.  The Parties hereby acknowledge and agree that they understand, and this Agreement specifically contemplates, such planned and unplanned (including unforeseen) interruptions in Spontigo’s delivery of the Services. While Spontigo implements and maintains commercially reasonable measures intended to avoid unplanned interruptions to the Services, and will use commercially reasonable efforts to notify You in advance of any planned interruptions, You expressly understands that such planned and unplanned (including unforeseen) interruptions are part of Spontigo’s delivery of the Services. You may contact Spontigo for technical support; however, You may not hold Spontigo liable for any circumstances (foreseen or otherwise) which may result from potential interruptions to the Services.  Spontigo reserves the right to change the way You access the Services as well as to deactivate or delete Your account, require You to change user access information or identifications, or otherwise change or modify Your account, as deemed necessary by Spontigo.

BOOKINGS AND THIRD-PARTIES

8. Platform and Supplier Terms. Spontigo operates a platform where you can book various Products directly from third-party suppliers ("Suppliers"). Although Spontigo provides information and facilitates bookings, it does not endorse or sponsor Suppliers. Spontigo does not assume responsibility for the accuracy of information obtained from Suppliers or displayed on the Website. Spontigo acts as the Suppliers' authorized agent. When you book a product through our platform, Spontigo may accept or decline your booking on behalf of the Supplier. Your use of our services and platform is governed by these Terms of Use. The terms governing the booked product will be those displayed on our website, provided during the booking process, and outlined in the Supplier's Terms and Conditions ("Supplier Terms"). By Booking, you agree to review and comply with the Supplier's Terms of Use ("Supplier Terms") and other applicable rules. In the event that there is a conflict between the Supplier Terms and these Terms of Use, these Terms of Use will take precedence. Your interactions with Suppliers are undertaken at your own risk. Spontigo disclaims any liability for actions, errors, or negligence of Suppliers, as well as for personal injuries, damages, or losses arising from your interactions. For any inquiries that may affect your decision to book, please contact Spontigo before finalizing your reservation. Once booked, you are bound by the cancellation policy specified in the product listing.

9. Booking Eligibility and Accuracy. By making a Booking, you confirm that you are at least 18 years old, possess the legal authority to enter into binding agreements (including this agreement and agreements with Suppliers), use our Services, and purchase Products. You further affirm that all information provided by you is accurate and truthful. You agree to utilize the Platform to make legitimate Bookings only for yourself and/or individuals for whom you are legally authorized to act.

10. Pricing, Taxes, Fees, and Payments. Prices for each Product are quoted per person, subject to change until a Booking is confirmed. All Prices and Currency are expressed in United States Dollars unless otherwise specified. Prices exclude local taxes and use-fees such as foreign departure, security, port charges, park fees, customs, immigration, agricultural, passenger-facility charges, or international transportation tax, unless specified otherwise by the Supplier. Inclusions and exclusions are determined by the Supplier and may not cover tips/gratuities, passport and visa fees, baggage and personal insurance, personal items, taxes or duties, or any beverages or food not explicitly stated as included. Your total Booking amount may include taxes, platform fees, duties, foreign transaction fees, currency exchange differences, or other charges. Your bank or payment card issuer may convert the payment into the local currency and impose fees, potentially resulting in discrepancies from the displayed amount. For clarification on currency conversion and fees, contact your bank or card issuer. Spontigo or Stripe will collect your payment information and act as the limited payment collection agent of the Supplier to process your payment for the Product(s). Stripe Inc. provides payment processing services for the Services under these Terms of Use. Full payment by credit or debit card is required to complete a Booking, unless otherwise specified. The payee on your financial statement may appear as Spontigo/Stripe. Spontigo saves Your Payment Information to be used exclusively for processing payments related to your Bookings and any modifications thereof.

11. Changes and Cancellations. Once you have purchased a Product, changes or cancellations for a refund are generally not permitted unless otherwise specified in the Product-specific Terms of Use. If you request modifications to any aspect of your Booking (such as pick-up location or time), the Supplier may consider accommodating such requests at their discretion. You are responsible for arriving at the designated meeting place at the specified time and date as detailed in your Booking. For certain Products, precise meeting instructions will be communicated by the Supplier after your Booking. It is your responsibility to review these messages and follow the provided meeting instructions. Failure to arrive on time may result in your Booking being classified as a "no show," with no entitlement to a refund or rescheduling by the Supplier. The standard cancellation policy permits changes or cancellations to a Booking up to 48 hours before the scheduled start time. Cancellations must be processed through the Spontigo Platform.

12. Change Requests. Requests for changes, including date changes, must be submitted online through the Spontigo Platform. Suppliers may impose a fee to process such requests, which you are required to pay for Spontigo to proceed with your Change Request. All requests are subject to availability and approval by the Supplier. Spontigo does not guarantee the approval of any Change Request. A Change Request is considered successful only upon Spontigo's confirmation of acceptance. If the Supplier cannot or chooses not to accept a Change Request, any potential refund rights are governed by the Booking's cancellation terms. It is your responsibility to cancel a Booking before any refundable cancellation deadline, regardless of awaiting Supplier response to a Change Request.

13. Promotions, Discounts, and Refunds. Using a promotion code or accepting a discount may invalidate the discount if changes are requested post-Booking. No refunds are available once an Experience starts or has been utilized.

14. Spontigo Account. You are responsible for maintaining the confidentiality of your Spontigo itinerary link. You are also solely responsible for all activities (including Bookings) that occur in connection with your Spontigo Account or Itinerary(s). You agree to notify us immediately of any unauthorized use of your Spontigo Account or Itinerary(s).

15. Supplier Changes and Withdrawal. Suppliers may occasionally make adjustments to a Product after purchase, including changes to dates, prices, inclusions, coverage, age requirements, or other features. Therefore, Spontigo (acting as the Supplier's agent) retains the right to cancel, modify, or substitute any purchased Product at its discretion and for any reason. Spontigo reserves the right to withdraw services, at its discretion, to deem necessary or beneficial for the protection of its own interests, the Supplier's interests, or your interests. This may result in overriding a Product's cancellation policy and effectively canceling a Booking. Spontigo may also choose, at its discretion, to refund all or part of the amounts charged to you. You acknowledge that neither Spontigo nor the relevant Supplier shall be held liable for such cancellations or refunds.

GENERAL PROVISIONS & DISCLAIMERS

16. General Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. SPONTIGO EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. SPONTIGO DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR ITS SOFTWARE, OR THAT ANY DOCUMENTATION OR REPORTS PROVIDED BY SPONTIGO ARE ERROR-FREE OR THAT OPERATION OR USE OF THE SERVICES OR SPONTIGO’S WEBSITE(S), OR MOBILE APPLICATION(S) WILL BE SECURE OR UNINTERRUPTED. SPONTIGO EXERCISES NO CONTROL OVER, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON, THE RESULTS OF USE OF THE SERVICES OR SPONTIGO’S SOFTWARE.

17. Disclaimer of Indirect Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOSS OF BUSINESS, OR COSTS ASSOCIATED WITH PROCURING SUBSTITUTE OR REPLACEMENT SERVICES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, ANY SERVICE ORDER, OR ANY OTHER AGREEMENT ENTERED INTO BETWEEN THE PARTIES OR THEIR AFFILIATES RELATED TO THIS AGREEMENT OR THE SERVICES (INCLUDING BUT NOT LIMITED TO STANDARD CONTRACTUAL CLAUSES), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER BASED ON AN ACTION FOR CONTRACT, WARRANTY, STRICT LIABILITY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, EVEN IF THE PARTY IS APPRISED IN ADVANCE OF THE LIKELIHOOD OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE REASONABLY BEEN FORESEEN.

18. Indemnification. You shall indemnify and hold harmless Spontigo and its directors, officers, employees, agents, affiliates, subcontractors and other Yous from and against any and all allegations, claims, actions, suits, demands, damages, liabilities, obligations, losses, settlements, judgments, costs and expenses (including without limitation attorneys’ fees and costs) which arise out of, relate to, or result from: (i) Your breach of any terms of this Agreement; (ii) Your improper or inappropriate use of the Services or Spontigo’s software, website(s), or mobile application(s); or (iii) the operations of Your business.  In no event shall Spontigo be responsible for any damages caused by the Services, Spontigo’s software, website(s), mobile application(s), or any harm that may result from Your reliance on or use of the Services, Spontigo’s software, website(s), mobile application(s), or any other information, data, document, deliverable, or other outcome resulting from any Parties’ actions undertaken in conjunction with performing under this Agreement, except to the extent proximately caused by the gross negligence or willful misconduct of Spontigo.

19. Non-Disparagement.  Partner agrees not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of Spontigo, its subsidiaries and affiliates, its managers, supervisors, directors, and officers. Partner acknowledges and agrees that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, employees (past and present), and any Partners.  Partner understands and agrees that this Paragraph is a material provision of this Agreement and that any breach of this Paragraph shall be a material breach of the Agreement, and that Spontigo would be irreparably harmed by violation of this provision.

20. Authorizations. Partner shall obtain necessary releases, licenses, permits, or other authorizations to use photographs, copyrighted materials, art work, or any other property or rights belonging to third parties provided to Spontigo for use in performing services for Partner and shall be responsible for any claims with respect to such use.  Partner shall be responsible for the accuracy, completeness, and propriety of information concerning Partner’s products and services that Partner furnishes to Spontigo in connection with the performance of this Agreement.

21. Limitation on Liability. The Parties hereby agree that, subject to the indemnification obligations set forth in above: (i) any liability of Spontigo hereunder shall be limited in all events to the amount of revenue Spontigo has collected from You, in conjunction with this Agreement, during the twelve (12) months immediately preceding the date of the event giving rise to the claim; (ii) each party hereby waives its right to any special, consequential, or punitive damages arising from this Agreement. The foregoing limitation of liability under this section does not apply to any violation of this Agreement on the part of You, or to any infringement or misappropriation of Spontigo’s intellectual property rights performed by You.

22. Transfer of Rights. Spontigo shall have the exclusive right, at any time, to sell, license, assign, or otherwise transfer its rights under this Agreement to any potential successors, assignees, or purchasers of Spontigo. You shall not assign any portion of this Agreement to any third party without prior written consent from Spontigo, whose consent may be withheld in Spontigo’s sole and absolute discretion.

23. Subcontractors. Spontigo may use subcontractors or other third parties in carrying out its obligations under this Agreement and You hereby acknowledges its understanding and agreement that Spontigo may use subcontractors in performing under this Agreement.

24. Notice. When You desire (or are required) to provide Spontigo notice, You must do so at the following address: sterling@spontigo.com. When Spontigo desires (or is required) to provide You notice, it must do so at the email address provided by You upon registration for Spontigo’s Services. Both Parties agree that provision of notice as set forth above is sufficient for all purposes for which notice may be required under the terms of this Agreement.

25. Entire Agreement. This Agreement along with Spontigo’s Privacy Policy and CCPA contains the entire agreement between the Parties and supersedes all prior oral and written agreements between them regarding their relationship. This Agreement may be modified only by an amendment in writing, dated and signed by Spontigo and You after the date of this Agreement. You acknowledge that You have not relied upon any statement, representation, prior or contemporaneous written or oral promises, agreements or warranties, except such as are expressed in this Agreement.

26. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Utah.

27. Dispute Resolution. In the event either party initiates legal action to enforce any right or obligation under this Agreement or to obtain relief for the breach of any covenant hereof, the non-defaulting party shall be entitled to recover from the defaulting party the costs of such action, including reasonable attorneys' fees and costs. EACH PARTY WAIVES TRIAL BY JURY IN THE EVENT OF ANY LEGAL PROCEEDING BROUGHT BY THE OTHER IN CONNECTION WITH THIS AGREEMENT.  EACH PARTY SHALL BRING ANY ACTION AGAINST THE OTHER IN CONNECTION WITH THIS AGREEMENT IN A FEDERAL OR STATE COURT LOCATED IN SALT LAKE COUNTY, UTAH, CONSENTS TO THE JURISDICTION OF SUCH COURTS, AND WAIVES ANY RIGHT TO HAVE ANY PROCEEDING TRANSFERRED FROM SUCH COURTS ON THE GROUND OF IMPROPER VENUE OR INCONVENIENT FORUM.  

28. Relationship (No Partnership).  Nothing contained in this Agreement shall be deemed or construed by the Parties hereto, or by any third party, to create the relationship of principal and agent or of partnership, joint venture, or any other form of association between You and Spontigo.  Nothing contained herein shall be deemed to create any form of relationship between You and Spontigo other than that of a subscriber and provider of services.

29. Binding Effect. The terms, provisions, covenants, and conditions contained in this Agreement shall apply to, bind, and inure to the benefit of the owners, managers, directors, employees, board, administrators, legal representatives, successors and assigns (where assignment is permitted) of You and Spontigo, respectively.

30. Miscellaneous. The captions, headings and paragraph titles in this Agreement are for the convenience of reference only, and are not intended in any way to restrict, affect, or interpret the provisions of any paragraph of this Agreement. The Parties acknowledge and agree that this Agreement shall not be more strictly construed against either party by reason of the fact that one party may have drafted or prepared the Agreement.

31. Severability. If any provision of this Agreement or its application to any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected. Otherwise, each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

32. Execution in Counterparts & by Electronic Means. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Agreement.  Delivery of this Agreement and signatures that may or may not be affixed hereto may be accomplished by electronic transmission.  In such event, any electronically delivered signatures shall function in the same manner and have the same legal effect as original signatures.  The Parties agree to accept a digital image of this Agreement, as executed by all Parties, as a true and correct original and admissible as best evidence for the purpose of state law, Federal Rule of Evidence 1002, and like statutes and regulations.

33. Updates. Spontigo retains the right to periodically revise this Agreement. Your continued access to or use of the Spontigo’s Services signifies your acknowledgment and acceptance of the revised terms. The latest revision date of this Agreement will be noted at the top of this page, with the updated terms taking immediate effect. It is your responsibility to routinely review this page to stay informed about the most recent version of this Agreement.

34. Publicity. You agree that Spontigo may use Your name, trademarks, and service marks to the extent necessary to fulfill its obligations under this Agreement and the Services. You also agree that Spontigo may use Your name and trademark as a reference for marketing and other promotional purposes on Spontigo’s website and/or in other marketing or advertising communications with existing or prospective Yous. In entering into this Agreement, You acknowledge and agree that Spontigo may use Your name, trademarks, and/or service marks in such capacity. If You wish to restrict Spontigo’s use of Your name, trademarks, and/or service marks in any manner, You shall notify Spontigo of such a desire by providing written notice. Spontigo shall not be liable for any use of Your name, trademarks, and/or service marks that occurred prior to receiving such written notice.

35. Force Majeure. Neither party will be liable for, or be considered to have breached or defaulted under this Agreement on account of, any delay or failure to perform any obligations under this Agreement (except for payment obligations) due to any cause or condition beyond that party’s reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the cause of the delay or non-performance.

36. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement and the Parties have not contemplated any third-parties in entering into this Agreement.

37. Non-Waiver. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, cannot be construed as a waiver of that party’s rights under this Agreement, and will not in any way affect the validity of the whole or any part of this Agreement or prejudice that party’s right to take subsequent action to enforce the terms of this Agreement. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by that party of any other right or remedy under this Agreement, or any other right or remedy that the party is entitled to enforce by law.

38. Validity of Agreement. Each party represents and warrants to the other that: (a) this Agreement constitutes a valid and binding agreement enforceable against it in accordance with the terms contained herein; and (b) no authorization or approval from any third party is required in connection with that party’s execution of, or performance under, this Agreement.

ADDITIONAL SUPPLIER PROVISIONS

39. Supplier Contract. Supplier agrees to provide certain Products that Spontigo may market and distribute via the Spontigo Platform for purchase (i.e., booking) by end Customers. Therefore, in consideration of mutual benefits, Spontigo and Supplier hereby agree to abide by these Terms of Use.

40. Customer Cancellation. Supplier agrees not to accept cancellations directly from Customers for Products purchased through the Spontigo Platform. If a Supplier receives a cancellation request from a Customer, the Supplier must instruct the Customer to process the cancellation through Spontigo's authorized channels. Customers are required to cancel purchased Products directly through Spontigo within the specified cancellation timeframe. Spontigo is not obligated to provide refunds to Customers who fail to cancel within this timeframe. In the event of a Customer cancellation due to a Force Majeure Event (as defined in Section 35 above), Supplier acknowledges that Spontigo may withhold the Net Rate for the Product, provided Spontigo receives sufficient evidence from the Customer demonstrating that the Force Majeure Event prevented the Customer from using the Product.

41. Payments to Supplier. Spontigo will fulfill payments of Net Rates owed to Supplier as specified in the payment terms below. Spontigo reserves the right to offset any amounts owed to Supplier against any obligations Supplier has to pay Spontigo or reimburse Spontigo under this Agreement. Each month, Spontigo will issue Supplier a Remittance equivalent to the total of Net Rates for Products purchased through the Spontigo Platform and fulfilled by Supplier to Customers, minus any adjustments for cancellations or refunds issued to Customers. Payments will be processed within thirty days after the date on which the Product was provided by Supplier to the Customer. The calculation of the payment amount will be based on the lowest applicable rate at the time the Customer made the Product booking. Supplier must notify Spontigo of any billing discrepancies via email within forty-five days from the date the Product was provided to the Customer. After this period, Spontigo reserves the right to make adjustments at its discretion regarding billing discrepancies. Notwithstanding the above, no disputes may be raised, and Supplier may not bring any claims, actions, or proceedings against Spontigo concerning payment-related matters. Spontigo will transfer payments via ACH or EFT to the Supplier's designated bank account. If Supplier fails to provide, maintain, or update the required bank account details (including relevant tax information), Spontigo reserves the right to withhold payment until such details are provided. If Supplier requests payment in a form other than ACH or EFT, or into an account not denominated in United States Dollars, Spontigo may apply transaction fees and/or currency conversion fees, not exceeding Spontigo’s costs. For each payment, Spontigo will provide Supplier with a Remittance receipt containing transaction ID and other booking details. Supplier is not to send invoices to Spontigo, and any invoices sent will not be recognized or honored by Spontigo, which assumes no obligation or liability for such invoices.

42. Rates and Taxes. For each Product, Supplier will furnish Spontigo with the following rates: Net Rate, Taxes, and Total Rate. Net Rate encompasses all applicable per-person fees minus taxes. Total Rate includes Net Rate plus all applicable taxes and additional charges. Unless otherwise agreed upon between Supplier and Spontigo, Supplier is solely responsible for paying all applicable taxes, such as value-added tax, sales tax, and any other taxes pertaining to Product sales. Spontigo retains the right to establish the actual retail rate for each Product displayed on the Spontigo Platform. The Net Rates provided by Supplier remain valid until Supplier modifies them through the Spontigo Platform or, if agreed upon between Supplier and Spontigo, through another method with prior written notice to Spontigo via approved means. Spontigo will have up to two weeks to implement any Net Rate modifications, regardless of how they are executed, and Spontigo will pay the prior Net Rate for all Product bookings made during this period.

43. Fraud and Chargebacks. Supplier may only use the Spontigo Platform to process payment transactions or transfer funds between Supplier and a Customer when directly related to the Customer’s purchase of a Product through the Spontigo Platform. Supplier agrees not to engage in any form of payment fraud. If Spontigo suspects Supplier is in breach of this agreement, Spontigo reserves the right to terminate the Agreement and withhold any outstanding payments to Supplier. Additionally, Spontigo may terminate the Agreement if an excessive number of payments result in chargebacks or other payment reversals, in which case Spontigo may withhold all outstanding payments to Supplier. Supplier acknowledges that liability for Customer chargebacks rests with Supplier, not Spontigo. Spontigo may use withheld funds to cover costs incurred due to Supplier’s fraudulent activities or excessive chargebacks, without prejudice to any other rights and remedies Spontigo may pursue against Supplier in connection with these issues.

44. Anti-Corruption. The parties agree that no payments or transfers of value shall be made with the intent or effect of public or commercial bribery, extortion, kickbacks, or other unlawful or improper means to obtain business or any advantage. Supplier must adhere to all international anti-corruption laws, including the United States Foreign Corrupt Practices Act, in performing activities under this Agreement:

1. Spontigo will only pay fees directly to Supplier and not to any other person or entity.
2. Supplier warrants that it has not and will not directly or indirectly pay, offer, authorize, or promise any monies or other value to:

1. Any government officer or employee;
2. Any person acting in an official capacity for a government entity;
3. Any political party, committee, or their officials or employees;
4. Any candidate for political office;
5. Any person, entity, or government official's suggestion, request, or benefit;
6. Any other entity with the understanding that funds or value will reach a government official, political party, committee, or candidate.

3. Upon Spontigo's request, Supplier will certify compliance with these provisions.

Failure to comply may result in termination of the Agreement by Spontigo and may lead to further actions or remedies under applicable law.

45. Cancellation and No-Show Policy. For each Product, Supplier agrees to follow Spontigo’s cancellation policy outlined on the Spontigo website at the time of Product booking. However, Supplier may not enforce a stricter cancellation policy on Customers booking through the Spontigo Platform than what Supplier applies to direct bookings. Unless canceled by Spontigo, all Products booked via the Spontigo Platform will remain available to Customers. Supplier will make reasonable efforts to accommodate Customers arriving after any designated no-show cut-off time.

46. Customer Interaction. If Supplier needs to communicate with a Customer, including notifying them of expected lateness for a scheduled meeting time, Supplier shall utilize only the interface provided by Spontigo, unless otherwise approved by Spontigo. Such communication shall be solely for purposes related to the sale of a Product through the Spontigo Platform. If Supplier needs to communicate with a Customer regarding purchased Products, Supplier agrees to adhere to the procedures outlined in this Agreement and any additional reasonable processes communicated by Spontigo. Supplier will maintain an effective customer service process, including responding to Customer complaints (including refund requests) in writing within 72 hours of receipt, using methods such as email or Spontigo's designated interface. Spontigo reserves the right to intervene in Customer complaints and may contact Customers directly. During the resolution process and potential compensation to Customers (at Spontigo’s discretion), Spontigo will attempt to engage Supplier in resolving complaints. If Spontigo compensates a Customer due to a complaint, Supplier will not receive payment for the Net Rate related to the affected booking(s). Any amounts previously paid to Supplier for such bookings and any compensatory payments made by Spontigo (up to the total Customer payment) may be adjusted in subsequent payments to Supplier, as agreed upon. After a Customer purchases a Product, Supplier agrees not to contact the Customer for marketing or selling purposes related to tours, activities, or other travel-related services without explicit permission from the Customer. Supplier may only contact Customers to fulfill purchased Products or to address Customer complaints.

47. Activity Redemption. If Supplier needs a voucher or confirmation of purchase, Supplier agrees to accept an electronic voucher for each Product sold via the Spontigo Platform. If Supplier is unable to accept electronic vouchers for a specific Product, Supplier must seek approval from Spontigo. Spontigo reserves the right to waive the electronic voucher requirement at its sole discretion, and such waiver may be communicated to Supplier via email.

48. Product Availability. Supplier must ensure all Products marketed and distributed through the Spontigo Platform are consistently available for Customer booking, except where Spontigo receives advance notice of unavailability from Supplier. If Supplier modifies any aspect of a Product or cancels it, such as due to sold-out dates, after a Customer has booked but before they have received the Product, Supplier must offer the Customer an alternative Product of equal or superior quality or otherwise accommodate them to their reasonable satisfaction. If the Customer cannot be reasonably accommodated, Supplier agrees that Spontigo may process a refund. In cases where Supplier anticipates being late for the agreed start time of a purchased Product, Supplier must promptly notify affected Customers using Spontigo’s designated interface. In such cases, Supplier may not be entitled to (and Spontigo may not be obligated to pay) any amount for the booked Product, and any payments already made may be adjusted in subsequent payments owed by Spontigo. Spontigo reserves the right to charge Supplier reasonable fees related to these actions, including merchant and customer service fees.

49. Product Bookings and Changes. All Products offered through the Spontigo Platform are typically available for "Instant Booking" unless Spontigo and Supplier mutually agree that a specific Product cannot support this method or should be categorized as "Manual Booking" which allow Supplier to accept or reject booking requests before Spontigo confirms them with the Customer. For Manual Bookings, Supplier agrees to promptly accept or reject requests, but no later than forty-eight hours after the booking is made. Acceptance confirms the purchase of the Product. For "Instant Bookings," Supplier authorizes Spontigo to accept all Customer requests to purchase Products and to confirm these purchases with Customers. It is understood that Supplier must accept all Instant Booking requests and may not reject them. If an Instant Booking request lacks necessary Customer Information, Supplier will follow Spontigo’s current procedures for customer contact (and Supplier will not reject the booking). Supplier will manage Product bookings using Spontigo’s provided interface, including accepting, rejecting, and confirming bookings. Supplier agrees to maintain up-to-date availability information for all Products. Bookings not explicitly rejected through Spontigo's Platform or Supplier’s technology partner will be deemed accepted by Supplier. If a Customer can book a Product because it appears available on Spontigo’s Platform, Supplier must honor such bookings. If Spontigo's Platform becomes unavailable, Supplier must promptly revert to managing booking confirmations via emailed confirmations from Spontigo or other means provided by Spontigo. Supplier will inform Spontigo of any changes regarding Products immediately upon becoming aware of changes. Failure to provide advance notice for changes resulting in Spontigo refunding Customers requires Supplier to reimburse Spontigo for forfeited amounts and reasonable expenses incurred by Spontigo.

50. Spontigo Platform. Spontigo retains full discretion regarding the utilization of the Spontigo Platform and the placement of Products within it. Factors influencing the visibility of Products on the Spontigo Platform may include their quality, listings, reviews, ratings, booking volume, and user preferences. Periodically, Spontigo may reward Suppliers for offering a higher commission on Products sold through the Spontigo Platform by offering increased visibility and improved positioning within the Spontigo Platform.

51. Insurance. Supplier must maintain current general liability insurance and errors and omissions insurance at all times, with coverage limits consistent with industry standards and as required by applicable laws, rules, and regulations. This insurance must be provided by an insurer rated A-VII or higher by A.M. Best (or equivalent), and should include completed operations, blanket contractual liability, and personal injury and advertising liability. Upon Spontigo's request, Supplier will add Spontigo as an additional insured to these policies or provide a certificate of insurance confirming all coverage outlined in this section. Supplier's insurance coverage will be primary to any insurance held by Spontigo. Spontigo reserves the right to specify additional or increased coverage requirements, or to waive insurance requirements entirely based on the nature of Supplier's Products. Supplier agrees to maintain insurance at the levels specified by Spontigo upon request. Spontigo does not guarantee that the coverage it requires will be sufficient to protect Supplier, and these coverage limits do not restrict Supplier's liability to Spontigo under this Agreement, if any. If Supplier fails to meet these insurance requirements and does not rectify the issue within fifteen days of receiving written notice from Spontigo, Spontigo may choose to terminate this Agreement.

52. Supplier Content. jSupplier grants and agrees to grant Spontigo a non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), worldwide right (but not the obligation), at its sole discretion, to reproduce, modify, reformat, create derivative works from, publicly display, publicly perform, and otherwise use all text, images, videos, and other content and materials provided by Supplier ("Supplier Content"). This grant includes the right to:

1. Advertise, market, promote, and distribute Products on or through the Spontigo Platform using Supplier Content.
2. Advertise, market, and promote destinations and activities on or through the Spontigo Platform, and to market and promote the Spontigo Platform generally, excluding use of Supplier Content for promoting competing products.
3. Perform Spontigo's obligations and exercise Spontigo's rights under this Agreement.

Supplier warrants and represents that:

1. Supplier either owns Supplier Content or possesses sufficient rights to grant Spontigo the rights specified in this Agreement.
2. Supplier Content is accurate, complete, and not misleading or fraudulent.
3. Supplier Content (and Spontigo's use of Supplier Content) does not and will not infringe, violate, or misappropriate any third party's proprietary or intellectual property rights, including copyrights, trademarks, or rights of privacy or publicity.

Supplier acknowledges and agrees that Spontigo will own all rights, title, and interest in any derivative works of Supplier Content created by or for Spontigo, whether before or after the Effective Date, and Supplier hereby assigns to Spontigo any rights it may have to such derivative works. However, Supplier retains all rights, title, and interest in existing intellectual property rights related to Supplier Content provided to Spontigo. Except for the rights explicitly granted in this Agreement, this Agreement does not convey or grant any ownership or other rights of any kind to Spontigo in Supplier Content.

53. Supplier Conduct. Supplier represents, warrants, and agrees to the following:

1. Supplier possesses and maintains all necessary registrations, licenses, permits, approvals, and authorizations required for its operations and the provision of Products.
2. Supplier's activities, operations, products, and services, including the provision of Products to Customers, are conducted in good faith and adhere to industry best practices in the tours and activities sector. If deemed appropriate or recommended based on the nature of Supplier’s Products, Supplier will conduct background checks on its personnel consistent with industry standards.
3. Supplier's personnel are adequately trained, possess necessary skills to deliver Products, and conduct themselves in a professional manner consistent with industry best practices.
4. Supplier complies with all applicable international, federal, state, and local laws and regulations, including those pertaining to fire safety, health, consumer protection, and data privacy. Supplier ensures that Products sold through the Spontigo Platform are not acquired through fraudulent means, such as automated ticket purchasing systems ("bots"), multiple IP addresses, or similar tools used to circumvent purchase limits or regulations applicable to ticket sales.
5. Supplier agrees not to engage in any act or omission, including through Supplier Content or the offer and delivery of Products, that could reasonably be expected to disparage, defame, discredit, or harm the reputation of Spontigo or the Spontigo Platform, as determined solely by Spontigo.

Spontigo reserves the right to verify Supplier's identity and may utilize third-party providers for such checks. Additionally, Spontigo may request proof of Product existence and authority to advertise and provide such Products. If Spontigo suspects that Supplier has provided false information, Spontigo may conduct further identity checks and due diligence or request additional proof from Supplier. Supplier may not subcontract or transfer its rights or obligations under this Agreement without prior written consent from Spontigo, except for the subcontracting of Product delivery, which requires Spontigo's prior written consent (may be provided via email). In the event of subcontracting, Supplier remains fully responsible for ensuring satisfactory Product delivery and compliance with this Agreement by the subcontractor. If Spontigo believes Supplier has breached this Agreement, including its representations, warranties, and covenants, Spontigo may terminate the Agreement. Upon termination, Spontigo may require Supplier to fulfill all Product purchases made before termination or assist Spontigo in securing alternative suppliers. Supplier shall not receive fees for such Products, must promptly refund any amounts already paid, and compensate Spontigo for any difference between the alternate supplier's suggested retail rate and Supplier's Net Rate, if higher.