This PARTICIPATION AGREEMENT (together with Exhibit A attached, the "Agreement"), is entered into as of the date accepted online by Participant ("Effective Date") by and between TRAVEL LEADERS FRANCHISE GROUP, LLC, a Minnesota limited liability company, ("Company") and the designated Travel Leaders Group employee ("Participant").
1.GRANT OF RIGHTS.
2. FEES AND TAXES.
3. PROPRIETARY RIGHT PROTECTION.
Company will be disclosing to Participant certain confidential, proprietary and trade secret information in tangible or intangible form, including but not limited to the Pinsight materials (including trademarks and other intellectual property from its Third Party Providers), documentation, all adaptations and modifications, all derivative works, and all related information and materials, and all copies (the "Proprietary Information"). The Proprietary Information has tangible value, is the intellectual property of Company, its Third Party Providers or other third parties, and is protected by law, including without limitation United States copyright laws and international treaties. The Proprietary Information is, and remains, Company's, Third Party Providersí or other third partiesí sole and exclusive property; either party would be irreparably damaged if the Proprietary Information were disclosed without its prior authorization. Therefore, Participant acknowledges and agrees that: (a) Participant will maintain the Proprietary Information in the strictest confidence and will use the Proprietary Information only for the performance of Participant's rights and obligations under this Agreement; and (b) other than as expressly provided in this Agreement, it shall have no right to copy or reproduce the Proprietary Information, in whole or in part, electronically or otherwise, without Companyís, Third Party Providersí or third partiesí express prior written permission, and will return any Proprietary Information (and any copies) upon termination of this Agreement. Any breach of this Section 3 by Participant will result in immediate and irreparable injury to Company (and to Third Party Providers), who shall be entitled to take whatever actions may be necessary, at law or in equity, to preserve the trade secret, confidential, and proprietary nature of the Proprietary Information. Any obligations of Participant relating to the confidentiality of the Proprietary Information will survive expiration or termination of this Agreement.
4. NO OBLIGATION TO CORRECT ERRORS.
Company shall use reasonable efforts to verify the cause of any errors in Pinsight reported by Participant. Companyís sole obligation shall be to use reasonable efforts to correct the reported error.
5. WARRANTIES AND LIMIT OF LIABILITY.
The services described herein are provided to participant on an "as is" basis, without warranty of any kind, whether express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose or non-infringement. Company accepts no responsibility for the acts, errors or omissions of any of its service providers or any other third party. Participant agrees that should Participant experience any difficulty with the services, Participant will look solely and exclusively to such service providers or third parties for any legal responsibility which Participant may feel they have to Participant. Nothing in this Agreement shall create any liability or obligation on the part of Company to Participant. Some of the products, content, services and technologies initially provided by Pinsight may be changed, enhanced, revised or deleted, without liability for Company.
6. HOLD HARMLESS; THIRD PARTY BENEFICIARY.
Participant agrees to indemnify, defend and hold harmless Company and the Third Party Providers from and against any liability, loss, cost or expense resulting from any failure by such party to perform any representation, warranty, or obligation under this Agreement, including those that arise as a result of the inaccuracy of the data or the disclosure of any data transmitted by parties other than Company contained in the files transferred by Participant. Company will not be liable for incidental or consequential damages arising out of any dispute under this Agreement. Company will not be liable in any event for the results of the services where the results are incorrect due to information provided by Participant or a failure of Participant to comply with the terms of this Agreement. Company assumes no responsibility for any action beyond the direct control of Company.
The terms and conditions set forth in this Agreement are for the benefit of Company and its third party providers who provide services and products that are used in Pinsight (the "Third Party Providers"). The Third Party Providers are intended to be third party beneficiaries of this Agreement and of the faithful performance of Participantís obligations hereunder. Participant understands and agrees that any such provider may directly pursue a cause of action against Participant if such provider believes that Participant has breached any of Participantís obligations hereunder and such breach damages or threatens to damage providerís company. Participant covenants that it shall not take any action or inaction in contravention of the foregoing, including without limitation, contesting the validity of a Third Party Provider to pursue Participant in accordance with the foregoing.
Any action brought by a Third Party Provider in connection with the foregoing shall be governed by the laws of the State of Minnesota, USA, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Minnesota, USA, and Participant hereby submits to the exclusive jurisdiction of the Federal and State courts residing in Hennepin County, Minnesota, USA for such purpose. Participant hereby expressly excludes the application of the United Nations Convention on Contracts for the International Sale of Goods.
7. PRIVACY
Use of Consumer Information. Participant agrees that all personal information of identified or identifiable consumers of the travel services being sold by Participant ("Consumer Information") shall be treated as Confidential Information of Company (or a Third Party Provider) in accordance with the Article on Confidentiality herein.
(a)Privacy. Participant recognizes and agrees that Consumer Information constitutes personal information that may also be protected by one or more privacy laws in the jurisdiction(s) where Participant is located or does business (collectively, the "Applicable Privacy Laws"). Participant agrees at all times to comply with all Applicable Privacy Laws. For purposes of compliance with Applicable Privacy Laws both Company or Participant (and not any Third Party Provider) shall be deemed a controller of Consumer Information and have overall responsibility for compliance with Applicable Privacy Laws, and each Third Party Provider shall be deemed only a processor of such Consumer Information, processing such information on Companyís and Participantís behalf and in accordance with Companyís instructions as set forth in this Agreement. As the controller of the Consumer Information, Company and Participant (and not any Third Party Provider) shall have the duty to notify affected Consumers (where required) of any and all violations of Applicable Privacy Laws and privacy breaches hereunder.
(b)Security. Participant shall ensure that all Consumer Information in its possession is maintained, accessed and transmitted in a secure environment, and that its use, collection, storage, processing, sharing, disclosure, or other handling of Consumer Information is in full compliance with all applicable federal, state, provincial and local laws, rules and regulations and any security regulations promulgated by the payment card industry.
(c)Privacy Policy. Participant shall provide each Consumer with any notices required to enable a Third Party Provider to perform its services. Participant shall provide Consumers with an accurate privacy policy in accordance with Applicable Privacy Laws.
8. REPRESENTATIONS
Participant represents and warrants that (i) it has the right, power and authority to enter into this Agreement and to perform all of its obligations hereunder, (including without limitation all required rights, licenses, authorizations and approvals to offer travel services in its jurisdiction(s)); (ii) the performance of such obligations will not conflict with or result in a breach of any agreement to which Participant is a party or is otherwise bound; (iii) its performance shall comply with all applicable laws, rules and regulations; and (iv) it shall not make any representations or warranties on any Third Party Providerís behalf.
9. CONFIDENTIAL INFORMATION
Participant acknowledges that any and all information about Companyís and any Third Party Providerís business which is not publicly known, including, without limitation, trade secrets, know-how, technology specifications, lists, Consumer Information, sales, cost or other unpublished financial information, marketing data, and any other information of such businesses which is marked or identified as, or provided under circumstances indicating that it ought to be treated as confidential, is confidential and proprietary information ("Confidential Information").
Participant shall treat as confidential all Confidential Information, shall not use such Confidential Information except as authorized in this Agreement, and shall not disclose such Confidential Information to any third party except as authorized in this Agreement. Participant shall disclose Confidential Information to its employees or consultants only on a need-to- know basis and only if they are bound by confidentiality obligations not materially less restrictive than those set forth herein. Without limiting the foregoing, Participant shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information. Participant shall promptly notify the applicable party of any actual or suspected misuse or unauthorized disclosure of Confidential Information (if misuse of a Third Party Providerís Confidential Information and such Third Party is unknown to Participant, Participant shall promptly notify Company).
Notwithstanding the above, Participant shall not have liability with regard to any Confidential Information which it can prove (i) was publicly available at the time it was disclosed or has become publicly available through no fault of Participant; (ii) was known to the Participant, without restriction, at the time of disclosure; (iii) was independently developed by the Participant without any use of or reference to the Confidential Information of the disclosing party; (iv) became known to the Participant, without restriction, from a source other than the disclosing party, without breach of this Agreement by the Participant and otherwise not in violation of the disclosing party's rights; or (v) is disclosed pursuant to the order or requirement of a court, regulatory entity or stock exchange, administrative agency or other governmental body;provided,however, that the Participant shall provide prompt notice of the latter event to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.
Promptly upon a termination or expiration of this Agreement, Participant shall, with respect to any Confidential Information in its possession or control, either destroy such Confidential Information or return such Confidential Information. In the event that Participant destroys all of the Confidential Information, within ten (10) days following a termination or expiration of this Agreement and upon receipt of a request therefore from the disclosing party, an officer or director of the Participant agrees to certify, in writing, to such destruction.
Participant acknowledges and agrees that, given the unique and proprietary nature of the Confidential Information, monetary damages may not be calculable or a sufficient remedy for any breach of this Confidential Information Article by Participant and that the disclosing party may suffer great and irreparable injury as a consequence of such breach. Accordingly, Participant agrees that, in the event of such a breach or threatened breach, the disclosing party shall be entitled to seek equitable relief (including, but not limited to, injunction and specific performance) in order to remedy such breach or threatened breach. Such remedies shall not be deemed to be exclusive remedies for a breach but shall be in addition to any and all other remedies provided hereunder or available at law or equity.
10. INDEMNIFICATION
In addition to any indemnities as may be expressly set forth in this Agreement, Participant will, at its expense, defend against, indemnify and hold harmless Company and all Third Party Providers, and each of their respective parent companies, affiliates, subsidiaries or entities under common ownership or control, and all of their respective present and former officers, members, shareholders, directors, employees, representatives, attorneys, insurers and agents, and their successors, heirs and assigns (collectively, the "Provider Parties"), from and against any and all Losses that directly or indirectly arise out of or relate to any claim or action arising from or related to (i) misrepresentation by Participant or breach of any warranty, representation, covenant or agreement made by Participant in this Agreement, including without limitation a breach by Participant of any provision in the Privacy, Compliance with Laws and Confidentiality Articles; (ii) the Proprietary Information or other content provided by Company or any Third Party Provider for use in connection with Pinsight, including without limitation any claim that the foregoing infringes or misappropriates any third party copyright, patent, trademark or other intellectual property right; or (iii) acts or omissions by Participant hereunder other than those Losses attributable directly or indirectly to the action or omissions of Company. "Losses" means any and all third-party losses, liabilities, actions, demands, claims, costs, damages, penalties, interest, judgment, settlements, costs and expenses (including, without limitation, fines, forfeitures, reasonable outside attorneysí and accounting fees and costs, disbursements and administrative or court costs).
11. COVENANTS
Participant covenants that it shall convey the Rules and Restrictions of each booking to the consumer wishing to make the booking prior to making such booking and further covenants not to make such booking if the consumer does not accept such Rules and Restrictions. Participant shall ensure that the information contained in any confirmation of a booking received by it be promptly forwarded to the applicable party under whose name the travel service was reserved or purchased.
Participant covenants that it shall not, under any circumstances, bring any cause of action or otherwise seek or attempt to seek any legal or equitable recourse against any Third Party Provider. Participant understands and agrees that any recourse available to it under this Agreement or in connection with its use of Pinsight or its provision of travel services will be solely with respect to Company, subject to the terms and conditions of this Agreement.
Participant represents, warrants and covenants that it shall not hold itself out as an agent or representative of any Third Party Provider or any of Affiliate of any Third Party Provider.
12. COMPLIANCE WITH LAWS
Participant agrees that Pinsight and any and all other travel-related technology, content and services made available to it in connection with this Agreement (collectively, the "Pinsight Services") will be used only, (1) by it or its duly authorized agents who shall be employees of Participant, and (2) in the United States, Canada, and the United Kingdom and such other jurisdictions expressly permitted by Company. Participant shall comply with all laws, rules and regulations as amended from time to time to the extent the same are applicable to its use of the Pinsight Services and all activities conducted by it in connection therewith (the "Companyís Regulatory Requirements"), including, but not limited to (a) Seller of Travel laws and DOT advertising regulations in all applicable jurisdictions, (b) the U.S. Foreign Corrupt Practices Act, (c) the U.S. Export Administration Act (including the U.S. Export Administration Regulations and Anti-Boycott Regulations promulgated thereunder, and any and all regulations administered by the U.S. Department of the Treasuryís Office of Foreign Assets Control or the Bureau of Industry and Security), including without limitation, the laws, rules and regulations that govern the facilitation of transactions, (d) the applicable laws of the European Union Member States and other jurisdictions where Participant is located or does business (if applicable), (e) Applicable Privacy Laws, rules and regulations in each jurisdiction where Participant is located or does business and all other applicable privacy requirements set forth in this Agreement, and (g) any other travel supplier and/or industry rules and regulations (e.g., IATA requirements, PCI standards, travel licensing, consumer protection etc.). Participant shall obtain all applicable permits and licenses in connection with its obligations under this Agreement.
13. TERM AND TERMINATION.
The term of this Agreement will begin on the Effective Date and will continue for one year. The Agreement will automatically renew for additional one year terms. Company has the right to require Participant to execute the then-current form of this Agreement upon any renewal.
Either party may terminate this Agreement at will, effective on the last day of the month following 30-day written notice. Company has the right to terminate this Agreement immediately and without notice to Participant, if Participant (a) breaches this Agreement or if a Third Party Provider requests same; or (b) fails to pay, when due, any fees under this Agreement.
In the event that this Agreement is terminated for any reason, Company shall continue to process Participantís transactions for a reasonable time, not to exceed 30 days.
14. GOVERNING LAW AND EXCLUSIVE VENUE.
Subject to the terms in the Hold Harmless; Third Party Beneficiary Article, this Agreement shall be governed by the laws of the State of Minnesota, whose state and federal courts shall have exclusive jurisdiction and venue over any dispute arising hereunder.
15. SEVERABILITY.
If any portion of this Agreement shall be found to be illegal, invalid or contrary to public policy, the same may be modified or stricken by a court of competent jurisdiction to the extent necessary to enforce such provision in a manner which is as consistent with the original intent of the provision as possible. The striking or modification of any provision shall not have the effect of invalidating the Agreement as a whole.
16. ENTIRE AGREEMENT.
This Agreement constitutes the entire Agreement of the parties and no modification of this Agreement shall be binding unless executed in writing by all the parties hereto
17. COMMUNICATIONS.
Participant may not use any brand identifier other than its own in any advertising or promotional media without Companyís prior written consent. Company and other third party providers and suppliers shall have the right to communicate with customers and who purchase travel services through Pinsight, and other parties, for purposes of conducting customer service or facilitating purchases through Pinsight.
18. FORCE MAJEURE.
Neither party shall be deemed in default or otherwise liable under this Agreement due to its inability to perform its obligations by reason of any fire, earthquake, flood, substantial snowstorm, hurricane, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, act of God, or any change in municipal, county, state, provincial, or national ordinance or law, or any executive, administrative or judicial order (which order is not the result of any act or omission which would constitute a default hereunder), or any failure or delay of any transportation, power, or communications system or any other or similar cause not under such partyís control, to the extent that such failure to perform results from a cause reasonably out of such partyís control.
19. NOTICES.
Notices shall be in writing and sent via U.S. Express Mail or private express or mailgram service, by facsimile or electronic mail, and will be effective upon receipt.
Signed
Roger Block
President
Travel Leaders Franchise Group, LLC