Last Updated: June 12, 2023
These Terms of Service constitute a legally binding agreement between you and TourHero Inc. (together with its affiliates, “Company”, “we,” “our” or “us”) governing your use of the TourHero Platform (as defined below), our mobile application (the “App”) and our website (the “Site”). The related services provided by Company to potential Operators and Travelers (each as defined in Section 1 ), the Site, and the App are collectively referred to as the “Platform” or “TourHero Platform.”
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “I AGREE” OR SIMILAR BUTTON, REGISTERING FOR AN ACCOUNT, DOWNLOADING THE APP OR ANY APP UPGRADES, USING THE APP ON YOUR MOBILE DEVICE, OR ACCESSING OR USING THE TOURHERO PLATFORM, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE OR THE APP. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE TOURHERO PLATFORM. These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access the Platform, whichever is earlier. If you accept or agree to these Terms of Service on behalf of your employer or another legal entity, you represent and warrant that (i) you have full legal authority to bind your employer or such entity to these Terms of Service; (ii) you have read and understand these Terms of Service; and (iii) you agree to these terms of service on behalf of the party that you represent. If you accept or agree to these Terms of Service on behalf of a minor child, you represent and warrant that (a) you have full legal authority to bind such minor to these Terms of Service; (b) you have read and understand these Terms of Service; (c) you agree to these Terms of Service on behalf of the minor child that you represent; and (d) you have sole responsibility to abide by these Terms of Service on behalf of such minor child. In such foregoing events, “you” and “your” will refer and apply to your minor child or such other legal entity.
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND COMPANY CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 17). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
1. The TourHero Platform
The TourHero Platform is a web and mobile application-based platform for like-minded travelers to coordinate, meet and go on tours supplied by Operators. “Travelers” are individuals seeking to book a Tour (the “Tours”) and some Travelers may be known as “TourHeroes” as further described below. “Operators” are individuals and/or businesses that supply products and services to enable the Tours, such as but not limited to lodging, ground transportation, experiences, tour guides, and equipment (the “Tour Services”). Travelers, TourHeroes, and Operators together are hereinafter referred to as “Users.” If you agree on the terms of the Tours and Tour Services with another User, you and such other User form a Service Contract (as defined below) directly between the two of you as set forth in more detail in Section 3 below.
TourHeroes are individuals who want to plan a Tour on the TourHero Platform with the help of Operators.
Through the TourHero Platform, TourHeroes and Travelers may plan, coordinate, request, or book Tours and Tour Services from Operators with the help of Company (the “Services”). In order to facilitate the bookings of Tours and Tour Services, you agree to authorize Company or its agents or Operators to submit certain information, including the name, date of birth, passport details, hotel preferences, and other personal information of the Traveler and the applicable payment information (collectively, the “Shared Information”), to the Operator. As an example, and by way of illustration only: to facilitate a Traveler’s hotel reservation, Company or the Operators may provide the Traveler’s name, phone number, email address, and other identifying information to the hotel. Additionally, in order to connect you with the TourHero, you agree to authorize Company or its agents or Operators to submit certain Shared Information, including email address and phone number, with the TourHero on the Tour you book.
OPERATORS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, OR FRANCHISEES OF COMPANY. TOURHEROES ARE NOT INDEPENDENT CONTRACTORS, EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, OR FRANCHISEES OF COMPANY. COMPANY DOES NOT PERFORM TOURS OR TOUR SERVICES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM THE TOURS OR TOUR SERVICES. USERS HEREBY ACKNOWLEDGE THAT COMPANY DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR AN OPERATOR’S WORK AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED OR THE TOUR SERVICES IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
The TourHero Platform enables coordination and communication between Users for the fulfillment of the Tours and Tour Services. Company is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of the Tours or Tour Services or Users, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Users or of any ratings provided by Users with respect to each other, including any possible unauthorized use, disclosure or misuse of any Shared Information by an Operator. Company makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Tours and Tour Services requested or Tours and Tour Services provided by, or the communications of or between, Users identified through the TourHero Platform, whether in public, private, or offline interactions or otherwise howsoever. You, as applicable, acknowledge and agree that (i) the purchase of Tours and Tour Services may be subject to the terms and conditions, agreements (such as contract of carriage), and privacy and security policies of the specific Operator, and (ii) the use of Tour Services will be subject to your compliance with applicable law. You shall be solely responsible for, and assume all risk arising from, the selection, use and receipt of any Tour or Tour Services. You shall be responsible for the accuracy of all Shared Information you provide to Company and Operators.
2. Account, Password, Security, and Mobile Phone Use
You may be required to register with Company and create an account to use the TourHero Platform (an “Account”), and as part of that process you will be requested to provide certain information, including without limitation your name, full address, phone number and email address. By using the TourHero Platform, you agree to provide true, accurate, current and complete information as prompted by the registration process and to maintain and promptly update the Account information to keep it accurate, current and complete. You are the sole authorized user of your Account. You are responsible for maintaining the confidentiality of any log-in, password, and Account number provided by you or given to you by Company for accessing the TourHero Platform. You are solely and fully responsible for all activities that occur under your password or Account, even if not authorized by you. Company has no control over the use of any User’s Account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or Account or you suspect any other breach of security, you agree to contact Company immediately.
The person signing up for the TourHero Platform will be the contracting party (“Account Owner”) for the purposes of these terms of service and will be the person who is authorized to use any corresponding Account we provide to the Account Owner in connection with the TourHero Platform; provided, however, that if you are signing up for the TourHero Platform on behalf of your employer, your employer shall be the Account Owner. As the Account Owner, you are solely responsible for complying with these terms of service and only you are entitled to all benefits accruing thereto. Your Account is not transferable to any other person or account. You must immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of our security or the security of your Account.
An Account of a User seeking to book a Tour with a minor under the age of 18 is subject to review and approval by Company and such User may be required to (i) create a separate account or different account type on behalf of the minor subject to additional identity verification of a parent or legal guardian, or (ii) provide other reasonably requested information by Company. IF YOU REGISTER, APPROVE OR CONSENT TO THE REGISTRATION OF, OR OTHERWISE ASSUME RESPONSIBILITY FOR ANY MINOR USER, YOU REPRESENT AND WARRANT THAT YOU (A) ARE SUCH MINOR’S PARENT OR LEGAL GUARDIAN OR (B) HAVE CONSENT FROM SUCH MINOR’S PARENT OR LEGAL GUARDIAN TO DO SO AND YOU AGREE TO BE BOUND BY THE TERMS ON BEHALF OF SUCH MINOR, INCLUDING WITHOUT LIMITATION BEING LIABLE FOR ALL USE OF THE SERVICES BY THE MINOR. You acknowledge that Company may choose, but is not obligated, to make any inquiries, either directly or through third parties, that Company deems necessary to validate your registration information, including without limitation engaging third parties to provide verification services. Company reserves all rights to take legal actions against anyone who misrepresents Shared Information or is otherwise untruthful about their identity. An Account, along with all associated minor child’s Accounts, may be terminated by Company at any time and without warning for any failure to abide by these Terms.
By providing your mobile phone number and using the TourHero Platform, you hereby affirmatively consent to Company’s use of your mobile phone number for calls and recurring texts, (including with an autodialer and/or prerecorded voice) in order to (i) perform and improve upon the TourHero Platform, (ii) facilitate the Tours, (iii) provide you with information and reminders regarding your registration, changes and updates, service outages or alterations, (iv) connect you to an Operator, and (v) share with other Users in private when all Users accept one another’s Services. These calls and texts may include, among other things, reminders about upcoming services on the TourHero Platform and/or push notifications and other reminders delivered through our App. Company will not assess any charges for calls or texts, but standard message, data or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your Account settings on the Site or the App, texting “STOP” in response to any texts, or by emailing email@example.com and specifying you want to opt-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing firstname.lastname@example.org and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
3. Contract between Travelers and Operators
You acknowledge and agree that a legally binding contract (the “Service Contract”) is formed when you agree on the terms of a Tour with another User. The Traveler and Operator are responsible for abiding by contract formation laws and requirements and have complete discretion both with regard to whether to enter into a written Service Contract with each other and with regard to the terms of any Service Contract, provided that any such agreements do not conflict with, narrow, or expand Company’s rights and obligations under this Agreement and provided that such agreements abide by required law. The terms of the Service Contract shall be deemed to include the terms set forth in this section.
The Service Contract is a contractual relationship directly between the Traveler and Operator and you agree that Company is not a party to any Service Contract and the formation of a Service Contract will not, under any circumstance, create an employment or other service relationship between Company and the Operator (or Assistants (as defined below)), nor will it create an employment relationship between the Traveler and the Operator (or Assistants). Company’s role is solely limited to providing a platform for Users to plan, coordinate, communicate, book and pay for a Tour and Tour Services. The Traveler and the Operator may track the progress of the Tour and to facilitate payment between the parties using the applicable third party payment processing system (the “PSP”). In acting as the limited payment facilitation agent for particular Tour, Company disclaims any other agency or authority to act on behalf of the Operator or the Traveler, and assumes no liability or responsibility for any acts or omissions of the Operator or the Traveler, either within or outside of the TourHero Platform.
Where approved in advance by the Traveler, the Operator is not obligated to personally perform the Tour Services and may delegate any Tour Services to Operators, subcontractor, agents, assistants, or other personnel engaged by the Operator (collectively “Assistants”). The Operator assumes full and sole responsibility for the acts and omissions of such Assistants, including without limitation the payment of all compensation, benefits and expenses of Assistants, if any, and for all required and applicable income tax withholdings as to the Provider and all persons engaged by the Provider in the performance of the Tour Services.
The Traveler shall pay the TourHero Platform for the Tour and Tour Services through the PSP as indicated on the TourHero Platform at the rates agreed to by the parties on the TourHero Platform. Each User agrees to comply with the Service Contract and this Agreement during the engagement, performance and completion of a Tour or Tour Service. Both Users agree to notify Company of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally for at least 30 days after notification (via certified mail or personal delivery) before initiating any proceeding. Company reserves the right to suspend or terminate any Account pending the resolution of any dispute.
4. Tour Details
TourHeroes. Travelers can choose to be TourHeroes. TourHeroes are travelers who want to organize and plan Tours on the TourHero Platform. Subject to the TourHeroes Policy, TourHeroes may receive a free or discounted Tour or Tour Services or additional compensation. The terms of the TourHeroes Policy may change at any time at Company’s discretion.
Logistics. Tours may be initiated by Company or TourHeroes, and Tour Services are supplied by Operators. Tours may be publicly or privately hosted on the TourHero Platform and Company reserves the right to remove Travelers from a Tour for any reason including any violations of this Agreement. In order to use the Services, book a Tour or participate in Tour Services, Travelers must provide Shared Information to Company. Further, Company reserves the right, in its sole discretion, to cancel a Tour or host a Tour on the TourHero Platform.
Tour Pricing. Pricing for Tours and Tour Services are made available on the “Itinerary” page. Prices for Tours and Tour Services may vary depending on the number of Travelers going on such a Tour or using such Tour Services. In the event, however, that a Tour listed or provided to us at an incorrect price or with incorrect information due to typographical error or other error in pricing or service information received from an Operator, we retain the right to refuse or cancel any Tour or Tour Services, whether or not the order has been confirmed and/or your card has been charged.
Cancellation and Refund Policy. A Tour or Tour Services may be cancelled, changed, postponed or delayed as a result of causes beyond our control (i.e. weather and travel conditions, river water levels, political or environmental changes, pandemics or epidemics, national security risks, acts of terror, equipment failure, flight schedule changes or rescheduling of air routes and times, referred to herein jointly as “Force Majeure”). While our Operators will endeavor to avoid changes and cancellations, our Operators must reserve the right to do so and to substitute alternative arrangements of comparable monetary value. Company or Operators reserve the right to adjust a Tour and Tour Services without prior notice. We accept no liability for loss of enjoyment as a result of these changes. Any additional charges incurred arising from the postponement, delay or extension of a Tour or adjustment to the itinerary due to Force Majeure will be your responsibility. Company or Operators will attempt to provide you advanced notice of any changes to a Tour or reservation to the extent commercially possible.
In the event that Traveler cancels a Tour or Tour Services, any applicable refunds will be provided according to our Cancellation Policy as set forth in the Itinerary page for your Tour.
In the event that Company cancels a Traveler’s Tour, due to Traveler’s violation of this Agreement, Traveler shall not be entitled to a refund.
Tour Waivers and Releases. You may be required to enter into waivers and releases with Operators in order to participate in the Tours or use any Tour Services. Failure or refusal to do so may result in the cancellation or suspension of your Tour and any Tour Services.
Travel Documents. Travel documents will only be sent to the Traveler, who has expressly agreed to this Agreement. Should the Traveler change his or her email address, phone number, or address before his or her departure date, you are required to advise us of the change. If you provide incorrect information to Company, we do not assume any liability if the Tour is adversely affected or made impossible by the non-receipt of travel documents.
Special Needs or Disabilities. If the Traveler has special needs (e.g., wheelchair accessible room, traveling with seeing eye dog, etc.) you must inform all relevant Operators for the Tour or confirmed booking ahead of time and verify that special needs can be met. Depending on such Operator’s terms and conditions, your Tour reservation may be refunded, canceled or modified if special needs cannot be met. Company makes no guarantee as to the ability of any Operator to meet special needs.
Minors. If the Traveler is traveling with a minor, it is the Traveler’s sole responsibility to (i) verify and obtain all necessary travel documents, waivers and consents prior to travel with the minor for each destination, accommodation and activity required for the Traveler’s entire Tour, (ii) supervise the minor throughout the duration of the Tour, and (iii) obtain any requisite parent or legal guardian consent or permission to travel with the minor.
Some countries may require you to be in possession of (x) a copy of the custody document if you are a parent or legal guardian with sole custody of the minor child, (y) a notarized and signed letter by both parents or legal guardian acknowledging you have permission to travel with the minor, and/or (z) any other travel documentation, if: (i) the minor is traveling only with one of their custodial parents or legal guardians or (ii) the Traveler is an adult who is a relative or another person with permission to travel with the minor. It is the sole responsibility of the Traveler to verify and obtain such custody document, letter, and/or any other documentation if required by any destination on Traveler’s Tour.
Passports, Visas, Reciprocity Fees, and Travel Health Requirements. It is the Traveler’s sole responsibility to verify that you have all the necessary visas, transit visas, passport, and vaccinations required for a Traveler prior to travel and have paid any required reciprocity fees for the destination. A full and valid passport is required for all persons traveling to any destination outside of such Traveler’s home country. Traveler must obtain and have possession of a valid passport, all visas, permits and certificates, and vaccination certificates required for Traveler’s entire Tour.
Most international Tours require a passport valid until at least six (6) months beyond the scheduled end of your Itinerary. Non-U.S. citizens should contact the appropriate consular office for any requirements pertaining to their Tour. Further information on entry requirements can be obtained from the State Department, by phone (202) 647-5335 or at the State Department’s website or directly from the destination country’s website.
Some countries require you to be in possession of a return ticket or exit ticket and have sufficient funds, etc. Similarly, certain countries require that the Traveler produce evidence of insurance/repatriation coverage before it will issue a visa.
You must carefully observe all applicable formalities and ensure that the full names used for all passengers when making a booking and appearing in your travel documents (booking forms, travel tickets, vouchers, etc.), correspond exactly with those appearing on Traveler’s passport, visas, etc., including middle name if applicable.
Immunization requirements vary from country to country and even region to region. Up-to-date information should be obtained from your local health department and consulate. You assume complete and full responsibility for, and hereby release Company from, any duty of checking and verifying vaccination or other entry requirements of each destination, as well as all safety and security conditions of such destinations during the length of the proposed travel or extensions expected or unexpected. For State Department information about conditions abroad that may affect travel safety and security, you can contact them by phone at (202) 647-5335. For foreign health requirements and dangers, contact the U.S. Centers for Disease Control (CDC) at (404) 332-4559, use their fax information service at (404) 332-4565, or go to the CDC travel website.
It is your responsibility to ensure that Traveler holds the correct, valid documents for the countries Traveler is visiting and have obtained the necessary vaccinations, clearance to travel, and hold the necessary confirmations for medications required as we cannot be held liable for any illness, delays, compensation, claims and costs resulting from your failure to meet these requirements.
WE CANNOT ACCEPT RESPONSIBILITY IF TRAVELER IS REFUSED PASSAGE ON ANY CARRIER, TRANSPORT OR ENTRY INTO ANY COUNTRY DUE TO THE FAILURE ON YOUR PART TO CARRY OR OBTAIN THE CORRECT DOCUMENTATION. IF FAILURE TO DO SO RESULTS IN FINES, SURCHARGES, CLAIMS, FINANCIAL DEMANDS OR OTHER FINANCIAL PENALTIES BEING IMPOSED ON US, YOU WILL BE RESPONSIBLE FOR INDEMNIFYING AND REIMBURSING COMPANY OR OPERATOR ACCORDINGLY. IN SUCH EVENT, TRAVELER SHALL NOT BE ENTITLED TO A REFUND FROM OPERATOR OR COMPANY.
Safety Policy. The TourHero Platform and our Services provide a platform for Users to plan, coordinate, request, or book Tours and Tour Services with other Travelers or Operators. Company is not a party to, has no involvement or interest in, makes no representations or warranties as to, and has no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other User, person or organization. You are solely responsible for your interactions with Users. We reserve the right, but have no obligation, to monitor interactions between you and other Users. Remember, the TourHero Platform and Services are just a platform that enable you to communicate and interact with other people around the world. We cannot be responsible for the interactions that you have with other Users, so please use good judgment and keep safety in mind when you use our Services, including participating on a Tour and using Tour Services.
5. Billing and Payment
Payment and any other expenses must be paid through the PSP as indicated on the TourHero Platform. You may be required to register with the PSP, agree to terms of service of the PSP, provide your payment details to the PSP and go through a vetting process at the request of the PSP to set up an account with the PSP (the “PSP Services Agreement”). By accepting these Terms of Service, you agree that you have reviewed and agreed to, the PSP Services Agreement. Please note that Company is not a party to the PSP Services Agreement and that you, the PSP and any other parties listed in the PSP Services Agreement are the parties to the PSP Services Agreement and that Company has no obligations, responsibility or liability to any user or any other party under the PSP Services Agreement.
For Tours, Company collects a service fee for the Tour Services directly from the Operator and will remit the remaining amounts paid by the Traveler for the Tour Services to Operator (“Traveler Payment”). Traveler Payments shall be remitted by Company to Operator in a manner as agreed upon between Company and Operator. After the Tour Services are completed, to the extent a refund is requested by a Traveler and approved by Operator, a portion of the amount paid by the Traveler shall be refunded to such Traveler. Further, it is agreed that the Traveler Payment will be paid to Operator, and Operator shall be responsible for payments to any third parties involved in hosting or providing the Tour Services, including but not limited to, Assistants.
All prices and fees displayed on the TourHero Platform are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services or other taxes, fees or charges now in force or enacted in the future (“Taxes”). Any applicable Taxes are based on the rates applicable to the billing address you provide to us, and will be calculated at the time of a transaction is charged to your Account. Unless otherwise indicated, all prices, fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
6. User Generated Content
“User Generated Content” is defined as any content, information, and materials that may be textual, audio, or visual that you provide, submit, upload, publish, or make otherwise available to the TourHero Platform and its Users, including without limitation to images and information of Services, Tours and Tour Services. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that Company:
You hereby represent and warrant to Company that your User Generated Content (i) will not be false, inaccurate, incomplete or misleading; (ii) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (iii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (iv) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (v) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (vi) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vii) will not represent you being employed or directly engaged by or affiliated with Company or purport you to act as a representative or agent of Company; and (viii) will not create liability for Company or cause Company to lose (in whole or in part) the services of its ISPs or other suppliers.
By making available any User Generated Content through the TourHero Platform, you hereby grant to Company a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, access, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Generated Content on, through or by means of the TourHero Platform. We do not claim any ownership rights in any such User Generated Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such User Generated Content.
7. Representations and Warranties
By using the Services, you represent and warrant that: (i) you are 18 years of age or older or are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts, and (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement. Where you enter into this Agreement on behalf of a minor, you represent and warrant that: (a) you have the right and authority to act on behalf of the minor without the consent of any other person or entity (including providing any of the minor’s Shared Information), (b) you voluntarily consent to the minor’s participation in a Tour and use of the Services in connection with such Tour, (c) you understand and acknowledge the inherent risks of travel which will involve activities described on the Platform for the Tour, which may include but are not limited to long drives, flights and potentially dangerous and physically demanding activities, and (d) you assume full and complete responsibility for checking and confirming any and all passport, visa, vaccination, or other entry requirements of each destination, accommodation and activity and all safety or security conditions of the foregoing.
You agree not to engage in any of the following prohibited activities, among others: (i) copying, distributing, or disclosing any part of the TourHero Platform in any medium other than as allowed by the TourHero Platform and these terms of service; (ii) using any automated system (other than any functionalities of the TourHero Platform), including without limitation “robots,” “spiders,” “offline readers,” etc., to access the TourHero Platform; (iii) transmitting spam, chain letters, or other unsolicited email or attempting to phish, pharm, pretext, spider, crawl, or scrape; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the TourHero Platform; (v) violating any international, federal, provincial or state regulations, rules, laws, or local ordinances; (vi) conducting any unlawful purposes or soliciting others to perform or participate in any unlawful acts; (vii) uploading invalid data, viruses, worms, or other software agents through the TourHero Platform; (viii) infringing upon or violating our intellectual property rights or the intellectual property rights of others; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) harassing, insulting, harming, abusing, defaming, stalking, threatening, intimidating or otherwise violating the legal rights (such as of privacy and publicity) of any other users or visitors of the TourHero Platform or staff member of Company; (xi) interfering with or any activity that threatens the performance, security or proper functioning of the TourHero Platform; (xii) uploading or transmitting viruses or any other type of malicious code; (xiii) attempting to decipher, decompile, disassemble or reverse engineer any of the software or algorithms used to provide the TourHero Platform; (xiv) bypassing the security features or measures we may use to prevent or restrict access to the TourHero Platform, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the TourHero Platform or the content therein; (xv) attempting to access unauthorized Accounts or to collect or track the personal information of others; (xvi) using the TourHero Platform for any purpose or in any manner that infringes the rights of any third party; or (xvii) encouraging or enabling any other individual to do any of the foregoing.
You hereby warrant and represent that, other than as fully and promptly disclosed to Company as set forth below, you do not have any motivation, status, or interest which Company may reasonably wish to know about in connection with the TourHero Platform, including without limitation, if you are using or will or intend to use the TourHero Platform for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to Company in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the TourHero Platform.
Additional Representations and Warranties for Operators. By registering or using the TourHero Platform to offer, post, or provide Tour Services, as an Operator, you represent and warrant that you, and your employees and Assistants (as defined below) who may perform work for you, are properly and fully qualified and experienced, and licensed, certified, bonded, and insured, as required by applicable laws or regulations to which you may be subject in the jurisdiction(s) in which you offer your Tour Services and in relation to the specific job you are performing. Operators additionally represent and warrant that you will provide timely, high-quality services to your Travelers, you will only offer and provide services for which you have the necessary skills, expertise and, if applicable, license, and you will provide the Tour Services safely and in accordance with all applicable laws, and that you have the legal right to work in the country in which you are performing Tour Services.
Additional Representations and Warranties for Travelers
User Vetting. We cannot and do not confirm each User’s identity. Although we may provide tools intended to assist with identity verification, you are solely responsible for determining the identity and suitability of others with whom you may interact through the Platform and our Services. Company does not represent or warrant that our tools are sufficient to determine whether it is appropriate for you to interact with another member. Further, we do not endorse any persons who use or register for our Services. We do not investigate or verify any member’s reputation, conduct, morality, criminal background, or any information Users may submit to the Services. We encourage you to take precautions when interacting with other Users, particularly when meeting a stranger in person for the first time.
Parental Verification. We cannot and do not confirm each User’s identity. Although we may provide tools intended to assist with identity verification, you are solely responsible for the supervision of any minors who may use the Platform and our Services. Company does not represent or warrant that our tools are sufficient to determine whether a Traveler is a minor or has submitted accurate information to identify and verify a parent or legal guardian is such minor’s actual parent or legal guardian or another adult with permission to travel with the minor. Further, we do not investigate or verify any User’s reputation, conduct, morality, criminal background, or any information Users may submit to the Services. We encourage you to take precautions when minors participate in a Tour.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety, data, and property, just as you would when interacting with other persons whom you don’t know. Company will not be liable for any false or misleading statements made by Users of the TourHero Platform. NEITHER COMPANY NOR ITS AFFILIATES, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, LICENSORS, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS “COMPANY AND AFFILIATES”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE TOURHERO PLATFORM AND YOU HEREBY RELEASE COMPANY AND AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE TOURHERO PLATFORM, TOURS OR TOUR SERVICES.
Licenses. Operators alone are responsible for identifying and obtaining any required licenses, permits, or registrations before offering Tour Services and undertaking Tour Services. Indeed, certain types of Tour Services may be prohibited altogether, and it is the responsibility of Operators to avoid such prohibited services. Penalties may include fines or other enforcement. If you have questions about how local laws apply to a Tour Service, you can and should first seek separate legal guidance. Because Company does not oversee, monitor or supervise the posting, scoping or performance of Tour Services, Travelers must determine for themselves whether an Operator is qualified to perform the specific Tour Service at hand. Travelers may wish to consult their state/provincial/territorial or local requirements to determine whether certain TourTour Services are required to be performed by a licensed professional.
8. Mobile App Updates and Upgrades
9. Termination and Suspension
Unless otherwise agreed to in writing between you and Company, either party may terminate these Terms of Service for any or no cause, at any time. You may cancel and delete your Account at any time by either using the features on the TourHero Platform to do so (if applicable and available) or by written notice to email@example.com. After cancellation, you will no longer have access to your Account, your profile or any other information through the TourHero Platform. The provisions of these Terms of Service which by their intent or meaning intended to survive such termination, including without limitation the provisions relating to disclaimer of warranties, limitations of liability, and indemnification, shall survive the termination of these terms of service and any termination of your use of or subscription to the TourHero Platform and shall continue to apply indefinitely. Additionally, Work Product that includes your likeness, including photographs and videos of you, will not be removed upon deletion of your Account and may remain visible to others.
We reserve the right to refuse the TourHero Platform to anyone for any reason at any time. Company may terminate or limit your right to use the TourHero Platform in the event that we are investigating or believe that you have breached any provision of this Agreement, by providing you with written or email notice. Such termination or limitation will be effective immediately upon delivery of such notice. If Company terminates or limits your right to use the TourHero Platform pursuant to this section, you are prohibited from registering and creating a new Account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.
Even after your right to use the TourHero Platform is terminated or limited, this Agreement will remain enforceable against you. Company reserves the right to take appropriate legal action, including but not limited to pursuing arbitration in accordance with Section 17 of these Terms of Service.
Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the TourHero Platform at its sole discretion. Company is not liable to you for any modification or discontinuance of all or any portion of the TourHero Platform. Company has the right to restrict anyone from completing registration as a User if Company believes such person may threaten the safety and integrity of the TourHero Platform, or if, in Company’s discretion, such restriction is necessary to address any other reasonable business concern.
Following the termination or cancellation of your Account, we reserve the right to delete all your data, including any User Generated Content, in the normal course of operation. Your data cannot be recovered once your Account is terminated or cancelled.
10. Links to Third-Party Websites
The TourHero Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Company or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the TourHero Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Company does not control any such websites, and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that Company is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that Company has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the TourHero Platform at its sole discretion.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. Company expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the TourHero Platform. You hereby agree to hold Company harmless from any liability that may result from the use of links that may appear on the TourHero Platform.
As part of the functionality of the TourHero Platform, you may link your Account with online accounts you may have with third-party service providers (such as Facebook) (each such account, a “Third-Party Account”) by either: (i) providing your Third-Party Account login information through the TourHero Platform; or (ii) allowing Company to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Company and/or grant Company access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third-party service providers. By granting Company access to any Third-Party Accounts, you understand that (1) Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third-Party Account (the “SNS Content”) so that it is available on and through the TourHero Platform via your Account, including without limitation any friend lists, and (2) Company may submit and receive additional information to your Third-Party Account to the extent you are notified of this when you link your Account with the Third-Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Generated Content. Depending on the Third-Party Accounts you choose, and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the TourHero Platform. Please note that if a Third-Party Account or associated service becomes unavailable or Company’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content may no longer be available on and through the TourHero Platform. You will have the ability to disable the connection between your Account on the TourHero Platform and your Third-Party Accounts at any time, as set forth below, provided that any SNS Content that you provide or have provided may not be deleted by such disabled connection. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY PROVIDERS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Company is not responsible for any SNS Content.
11. Worker Classification and Withholdings
AS SET FORTH IN SECTION 1 , COMPANY DOES NOT PERFORM TOUR SERVICES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM TOUR SERVICES. EACH USER ASSUMES ALL LIABILITY FOR PROPER CLASSIFICATION OF SUCH USER’S WORKERS BASED ON APPLICABLE LEGAL GUIDELINES. IF A TRAVELER, YOU INDEMNIFY AND HOLD COMPANY AND AFFILIATES HARMLESS, AND IF AN OPERATOR, YOU FULLY AND FINALLY RELEASE COMPANY AND AFFILIATES, FROM ALL LIABILITIES, CLAIMS, CAUSES OF ACTION, DEMANDS, DAMAGES, LOSSES, FINES, PENALTIES OR OTHER COSTS OR EXPENSES THAT OPERATORS OR ASSISTANTS MAY INCUR OR BECOME ENTITLED TO, WHETHER UNDER CONTRACT, COMMON LAW, CIVIL LAW, STATUTE OR OTHERWISE, IN RESPECT OF TOUR SERVICES OR SERVICE CONTRACTS OR THE USE OF THE TOURHERO PLATFORM, INCLUDING WITH RESPECT TO MISCLASSIFICATION OF OPERATORS AND ASSISTANTS AND THE TERMINATION OR CESSATION OF ANY TOUR SERVICE, SERVICE CONTRACTS, THIS AGREEMENT OR THE USE OF THE TOURHERO PLATFORM.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each User acknowledges and agrees that Company does not, in any way, supervise, scope, direct, control or monitor an Operator’s work or Tour Services performed in any manner. Company does not set an Operator’s work hours or location of work. Company will not provide any equipment, tools, labor or materials needed for a particular Tour Service. Company does not provide any supervision to Users.
The TourHero Platform is not an employment agency service or business and Company is not an employer of any User. As such, Company is not responsible for and will not be liable for workers’ compensation or any tax payments or withholding, including but not limited to applicable sales taxes, unemployment or employment insurance, social security, disability insurance or any other applicable federal, provincial or state withholdings in connection with a User’s use of the TourHero Platform. Operators acknowledge and confirm that they are responsible for exercising their own business judgment in entering into Service Contracts and performing Tour Services and that, depending on how they exercise such business judgment, there is a chance for individual profit or loss.
This Section 11 in no way limits the generality of Section 15.
12. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, trademarks, logos, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the TourHero Platform is owned by Company, excluding User Generated Content, which Users hereby grant Company a license to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Company owns or has a license to all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the TourHero Platform without Company’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content.
Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Company and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Company, including without limitation Company and Company logos, are service marks owned by Company. Any other trademarks, service marks, logos and/or trade names appearing via the TourHero Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
Additionally, your name, image, likeness, and voice may be captured in photography, video, or other digital media generated during a Tour (“Likeness Content”) and you may choose to or we may invite you to submit comments, ideas, or feedback about a Tour or the TourHero Platform, including without limitation about how to improve our services or our products (“Feedback” and together with Likeness Content, “Work Product”). By using the Services and by submitting any Feedback, you hereby (i) grant Company the right to use any Work Product, including any Work Product attributed to your minor child (if applicable), for any commercial or non-commercial purpose in all forms and media (including, without limitation, Company websites, advertising and promotions on social media, television and radio, packaging and print or digital ads), in perpetuity and worldwide, for any lawful purposes whatsoever, (ii) agree that your suggestions are gratuitous, unsolicited, and without restriction and will not place Company under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone, (iii) you waive any right to royalties or other compensation arising or related to the use of Work Product, (iv) irrevocably authorize Company to edit, alter, copy, exhibit, publish, or distribute Work Product for any lawful purpose, (v) waive any right to inspect or approve the finished Work Product, (vi) understand and agree that all Work Product will become the exclusive worldwide property of Company and will not be returned, and (vii) agree to transfer and assign to Company any rights that you may have therein, or which may be necessary to effect this paragraph. In addition, you hereby authorize Company to use, reuse, publish and republish (with attribution to you) any social media content that you post on social media tagging Company. You hereby hold harmless, release, and forever discharge Company from all claims, demands, and causes of action which you, your heirs, representatives, executors, administrators, or any other persons acting on your behalf or on behalf of your estate have or may have by reason of the matters set forth in this paragraph.
Subject to the terms and conditions hereof, you are hereby granted a limited, nonexclusive, nontransferable, freely revocable, license to access and use the TourHero Platform. We may terminate this license at any time for any reason or no reason. The TourHero Platform and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, reports generated by the TourHero Platform, and copyrights (the “TourHero Content”), and all Intellectual Property Rights (as defined below) related thereto, are the exclusive property of Company or, as applicable, its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, publicly distribute, publicly transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the TourHero Platform. Use of the TourHero Content or materials on the TourHero Platform for any purpose not expressly permitted by this Agreement is strictly prohibited. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Your use of the TourHero Platform and the relating licenses granted hereunder are also conditioned upon your strict adherence to the letter and spirit of the various applicable guidelines and any end user licenses associated with your use of the Platform. Company may modify such guidelines in its sole discretion at any time. Company reserves the right to terminate your Account and access to the TourHero Platform if it determines that you have violated any such applicable guidelines.
13. Copyright Complaints and Copyright Agent
Company respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the TourHero Platform infringe upon your copyright or other intellectual property right, please send the following information to Company’s Copyright Agent at firstname.lastname@example.org:
14. Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Company and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than using the TourHero Platform in accordance with these Terms of Service. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You shall promptly notify Company in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Company upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Company’s trade secrets, confidential and proprietary information, and all other information and data of Company that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other proprietary and confidential information relating to Company or Company’s business, operations or properties, including information about Company’s staff, Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
15. Disclaimer of Warranties
THE TOURHERO PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE TOURHERO PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE TOURHERO PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE TOURHERO PLATFORM, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED ON THE TOURHERO PLATFORM.
UNDER NO CIRCUMSTANCES WILL COMPANY AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY COMPANY, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES) ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE TOURHERO PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY AND AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE LOWER OF (I) THE TOTAL FEES PAID BY YOU TO COMPANY DURING THE SIX MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE OR (II) ONE HUNDRED DOLLARS ($100), TO THE EXTENT PERMITTED BY APPLICABLE LAW.
You hereby agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, attorneys, insurers, successors and assigns (the “Indemnified Parties”) from and against any and all Liabilities incurred in connection with (i) your use or inability to use the TourHero Platform or perform Tour Services, (ii) your actions on the Platform or on a Tour, (iii) your breach or violation of this Agreement, (iv) your violation of any law, or the rights of any User or third party and (v) any content submitted by you or using your Account to the TourHero Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. You also agree to indemnify the Indemnified Parties for any Liabilities resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or loan on our infrastructure. Company reserves the right, in its own sole discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of Company.
17. Dispute Resolution – Arbitration & Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND COMPANY CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND COMPANY TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
You agree that, in the event any dispute or claim arises out of or relating to your use of the TourHero Platform, you will contact us at email@example.com and you and Company will attempt in good faith to negotiate a written resolution of the matter directly. You agree that if the matter remains unresolved for 30 days after notification (via certified mail or personal delivery), such matter will be deemed a “Dispute” as defined below. Except for the right to seek injunctive or other equitable relief described under the “Binding Arbitration” section below, should you file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter by mediation, then you agree that you will not be entitled to recover attorneys' fees, even if you may have been entitled to them otherwise.
Binding Arbitration. You and Company agree that any dispute, claim or controversy arising out of or relating to this Agreement or to your use of the TourHero Platform (collectively “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. This means that you and Company both agree to waive the right to a trial by jury. Notwithstanding the foregoing, you may bring a claim against Company in “small claims” court, instead of by arbitration, but only if the claim is eligible under the rules of the small claims court and is brought in an individual, non-class, and non-representative basis, and only for so long as it remains in the small claims court and in an individual, non-class, and non-representative basis.
Class Action Waiver. You and Company agree that any proceedings to resolve Disputes will be conducted on an individual basis and not in a class, consolidated, or representative action. This means that you and Company both agree to waive the right to participate as a plaintiff as a class member in any class action proceeding. Further, unless you and Company agree otherwise in writing, the arbitrator in any Dispute may not consolidate more than one person’s claims and may not preside over any form of class action proceeding.
Arbitration Administration and Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution’ section. (The AAA Rules are available at http://www.adr.org or by calling the AAA at 1-800-778-7879).
Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the AAA’s roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.
Arbitration Location and Procedure. Unless you and Company agree otherwise, the seat of the arbitration shall be in New York, New York. If your claim does not exceed USD$10,000, then the arbitration will be conducted solely on the basis of documents you and Company submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds USD$10,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Hearings may be conducted by telephone or video conference, if requested and agreed to by the parties.
Arbitrator’s Decision and Governing Law. The arbitrator shall apply New York law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in the AAA Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the “Disclaimers and Limitations of Liability” section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Fees. Each party’s responsibility to pay the arbitration filing, administrative and arbitrator fees will depend on the circumstances of the arbitration and are set forth in the AAA Rules.
18. Governing Law
Except as provided in Section 17 or expressly provided in writing otherwise, this Agreement and your use of the TourHero Platform will be governed by, and will be construed under, the laws of the State of New York, without regard to choice of law principles, and regardless of your location. This choice of law provision is only intended to specify the use of New York law to interpret this Agreement.
19. No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
20. General Provisions
Failure by Company to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and Company with respect to its subject matter, and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Class Action Waiver” in Section 17, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (i) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (ii) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (1) to a parent or subsidiary, (2) to an acquirer of assets, or (3) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement will inure to the benefit of Company, its successors and assigns.
21. Changes to this Agreement and the TourHero Platform
22. No Rights of Third Parties
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
23. Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically including without limitation by e-mail or by posting Notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
24. Contacting Us
If you have any questions about these Terms of Service or about the TourHero Platform, please contact us by email at firstname.lastname@example.org or by mail to TourHero Inc. at 2807 Jackson Ave, Floor 5, Long Island City, 11101 NY.