Effective for all Providers as of October 1, 2022.
Table of Contents
- Relationship Between You, the Customer, and FareHarbor
- Facilitated Payment
- Intellectual Property Rights
- Privacy & Data Protection
- Limitation of Liability and Indemnification
- Term and Termination
- Force Majeure
- Compliance Warranties
- Applicable Law and Forum
These Terms of Service for Providers are between you, individually or on behalf of an entity you represent (“you” “your”), and FareHarbor B.V. (“FareHarbor”, “we”, “us”, or “our”) and govern your use of the Service (You and FareHarbor are also each individually referred to as “Party” and collectively referred to as “Parties” in these Terms of Service). FareHarbor provides a comprehensive solution for businesses that desire an online booking reservation system. Specifically, FareHarbor provides various products and services to businesses and individual businesses in the (tourist) activity industry (“Providers”) that may include—amongst other things—platform creation, on-platform reservation payment capability, online reservation systems and management solutions, marketing and promotions, performance reporting tools, pricing tools, website creation, website hosting, self-service knowledge bases, and distribution access tools, that allows you to list the availability of, accept and manage reservations for, and sell your products and services (“Service“).
These Terms of Service for Providers consist of the following General Terms and Conditions, (collectively “Terms of Service“).
GENERAL TERMS AND CONDITIONS
You act as an entrepreneur and as a business towards FareHarbor when making use of the Service.
1. Relationship between You, the Customer, and FareHarbor
1.1 Upon making a reservation and/or purchase through the online reservation system created for you by FareHarbor (the “ORS”), the customer enters into a direct contractual relationship with you (the “Activity Contract”). FareHarbor is not a party to the Activity Contract, and merely acts as the limited purpose agent of the customer for the purpose of selecting (and paying for) Providers’ products and services through the Service (“Booking”). In exchange for facilitating the online payment and Booking process, FareHarbor may charge the customer a fee for making a Booking via your ORS (i) on a website that FareHarbor created for you, or (ii) on your own website, where the Service is integrated (“Booking Fee”). When a customer makes a Booking via your ORS, the customer pays two fees: the fee for the product or service provided under the Activity Contract (“Activity Fee”), and the Booking Fee.
1.2 You agree to only use the Service (i) to allow customers to make Bookings for products and services offered by you, (ii) to facilitate listings with third-party distributors of your products or services, and (iii) for any other purposes approved in writing by FareHarbor.
1.3 You remain fully and solely responsible for fulfilling obligations vis-a-vis customers under Activity Contracts.
2. Facilitated Payment
2.1 FareHarbor utilizes Payment Service Providers (“PSPs”) and integrates facilitated payments solutions offered by the PSPs into the Service it offers to you. A customer that makes a Booking through the Service will not pay any fees to a PSP for making use of its facilitated payment solution.
2.2 Within your ORS, FareHarbor has integrated the IT-infrastructure that enables customers to make online payments for Bookings. In connection therewith, FareHarbor has entered into contracts with certain PSPs to enable online payments.
2.3 You may be required to enter into a separate (User) agreement (FareHarbor Payments – Legal Information) with the respective PSP(s) to enjoy the benefits of the online payment services utilized by FareHarbor, and to receive payments for Bookings made through the Service. The terms of the (User) agreement shall apply to all facilitated payments through the Service.
2.4 FareHarbor disclaims all liability and bears no responsibility related to (i) any delay or unavailability of a facilitated payment in connection with the Service provided to you, or (ii) the fulfillment of the PSP’s obligations under the applicable User Agreement.
2.5 The facilitated payment typically includes (i) the collection of the Activity Fee paid by the customer, and (ii) the payment of the Activity Fee to you on behalf of the customer. You are required to provide all relevant information necessary to receive a payout in a timely and accurate manner.
2.6 FareHarbor and you agree that the PSP shall collect both the Booking Fee and the Activity Fee from the customer. Moreover, FareHarbor and you agree that Activity Fee will be paid to you on behalf of the customer, and that the Booking Fee will be retained by FareHarbor as compensation for the service provided to the customer, including acting as the customer’s limited purpose payment agent.
2.7 The costs related to the facilitated payments shall be charged by the PSP to FareHarbor.FareHarbor may charge you a fee as compensation for the use of the IT-infrastructure provided by FareHarbor allowing for facilitated payments. If FareHarbor decides to charge such a fee, payment shall be due in accordance with the terms of the invoice for the same. You agree and acknowledge that FareHarbor may utilize the facilitated payment for settlement and payment of the outstanding amounts by offsetting any due or outstanding fees charged for your use of the IT infrastructure as well as any other amounts that are due by you, if applicable.
3.1 You hereby represent and warrant the following:
i. that you comply with applicable laws, including but not limited to all laws referenced in Section 14;
ii. that you possess the legal capacity, right, power and authority to enter into these Terms of Service and fulfill the obligations set forth herein;
iii. that you are under no obligation or restriction that does or would interfere or conflict with your ability to use the Service or adhere to these Terms of Service;
iv. that the information you provided in connection with these Terms of Service is true, correct, and complete;
v. that your use of the Service and your ORS will be in accordance with these Terms of Service; and
vi. that you will not use, copy, modify, transfer, assign, or create derivative works or distribute any rights in the Service or in FareHarbor’s intellectual property to any third-party, in whole or in part.
3.2 If you breach the representations or warranties made in this Section 3, you will be fully responsible and liable for any and all damages suffered and/or to be suffered, directly or indirectly, arising out of said breach. FareHarbor’s obligations and liabilities under these Terms of Service will be suspended until said breach is remedied. If said breach is not remedied within thirty (30) days or cannot be remedied, FareHarbor’s obligations and liabilities under these Terms of Service will terminate.
4.1 FareHarbor authorizes you to make use of the Service and your ORS in accordance with these Terms of Service. Any support and/or assistance from FareHarbor with regard to your use of the Service and/or your ORS shall be provided on the basis of the conditions of these Terms of Service.
4.2 From time to time, FareHarbor may, on your behalf and either upon your instruction and/or with your knowledge, integrate or set-up, as part of the Service or your own website, third party products or services and cookies or similar (tracking) technologies. You remain fully responsible and liable for such integration or set-up that FareHarbor may execute on your behalf.
4.3 FareHarbor has the right to audit your use of the Service at any time to determine whether your use complies with these Terms of Service. If FareHarbor exercises its right to audit your use of the Service, you agree to cooperate fully with its completion of said audit at your sole cost and expense.
4.4 You agree to cooperate fully with FareHarbor and its counsel or accountants in connection with the filing of tax returns, and any other audit, litigation, or other proceeding with respect to all applicable tax matters, including the retention and (at FareHarbor’s request) the provision of records and information which are relevant to any such audit, litigation, or other proceeding, at your sole cost and expense.
4.5 You may not:
i. give or provide third parties access to the Service or use the Service for the benefit of third parties;
ii. remove any indication of copyrights, brands, trade names or other rights of (intellectual) property from the Service;
iii. use the Service for any purpose that would violate these Terms of Service, or in any manner that, as determined by FareHarbor in its reasonable discretion, could impair, harm, or damage FareHarbor, FareHarbor’s business reputation, or the Service;
iv. use the Service: (a) to disrupt, interfere with, or attempt to gain unauthorized access to services, servers, devices, or networks connected to or accessible via the Service; (b) to transmit or upload any material that contains viruses, malicious software, code or applications or any other harmful programs which may interfere with or disrupt the Service, or any network connected thereto; (c) to reverse engineer, decompile or disassemble the Service; (d) to scrape, build databases, or otherwise create copies of any data accessed or obtained using the Service; or, (e) to circumvent any limitations or restrictions on your use of the Service established by FareHarbor.
4.6 You will contact us as soon as is reasonably practicable, and refrain from making public statements (including on social media) without prior written permission from FareHarbor as it relates to the Service, at email@example.com if you become aware of or suspect:
i. any breach of the technical or organizational security measures applicable to the Service, involving your systems or any data collected through your ORS or the Service;
ii. any technical or operational failure or error of any part of the Service, including affecting availability of the Service or any data accessible through the Service; or,
iii. any fraudulent activity, unauthorized access or fraudulent transactions in any part of the Service or in the event of any breach of these Terms of Service.
4.7 FareHarbor provides the Service, including the ORS, on an “as is” and “as available” basis. FareHarbor will make commercially reasonable efforts to make the Service available, but cannot warrant or guarantee that the Service will be available at all times.
4.8 FareHarbor will make new versions, releases, and updates to the Service to: (i) solve defects and/or errors, (ii) keep the Service up to date with market developments, or (iii) otherwise improve the Service. You may receive updates within your ORS or by other means regarding the aforementioned changes. FareHarbor will only support the most recent version of the Service.
4.9 You agree to and are obliged to provide FareHarbor with all information required to make use of the Service (e.g. the account registration information) in a timely and correct manner. You agree to ensure that all information is and remains true, accurate, current, and complete. You will be liable and solely responsible for any errors, mistakes or omissions in the information that you provide to FareHarbor. FareHarbor may suspend or terminate the Service if it has commercially reasonable grounds to suspect that the relevant information is untrue, inaccurate, not complete or current.
4.10 You are not allowed to upload materials to your ORS that are (i) prohibited, (ii) infringe upon the rights of others, or (iii) unlawful. You will fully indemnify and hold FareHarbor harmless (including all costs and reasonable legal fees incurred by FareHarbor that are spent on the defense against such a claim) against third-party claims arising out of alleged infringement on a third-party’s rights related to materials uploaded to your ORS.
4.11 FareHarbor may, in its sole discretion, remove information or direct you to remove information that FareHarbor deems to be inappropriate or unlawful, and notify you thereof within a commercially reasonable amount of time.
4.12 You agree that you are solely responsible for and FareHarbor is not liable for:
i. any technical inaccuracies, any print or typographical (spelling) errors or other errors on your ORS (including but not limited to rates, fees, or availability related to your products or services);
ii. any changes made by or on behalf of you;
iii. improper use of your ORS and/or the Service; or
iv. use of your ORS and/or the Service together with software or equipment not approved by FareHarbor.
4.13 You agree to regularly check the correctness of the information provided on your ORS and confirm that all information is up to date. You shall notify FareHarbor immediately if you determine that changes should be made.
4.14 You are entirely and exclusively responsible for the security and confidentiality of your username and password that jointly give access to your FareHarbor account. Moreover, you are solely responsible for all activity happening through your FareHarbor account. If you share your username or password with a third-party, permit them to log on or to otherwise use the Service through using your account information, or if you are negligent in maintaining security of your username or password such that a third-party gains access to your FareHarbor account, you assume all risks and losses and you are responsible for all account activities (including but not limited to changes to the username, password, listings bookings or account settings) of that third-party as if you performed these activities yourself. You shall immediately notify FareHarbor of any unauthorized use of your account or any other breach of security that you become aware of.
4.15 Any individual identified in the registration data provided by you (or that you later identify to FareHarbor) with ‘user permission’, including joint business owners or additional users, shall be deemed to be authorized to use your ORS. You grant permission and consent to FareHarbor providing permitted users with information about your FareHarbor account to discuss the account with them and to make changes to the account (depending on the authorization settings). FareHarbor disclaims all liability and bears no responsibility in relation to disputes between you and any permitted user (or other third-party to whom you provided access to your account).
4.16 Any running or displaying of the Service or any information or material displayed on the Service in frames on another website or through similar means on another website without the prior written permission of FareHarbor is prohibited. The Service may occasionally contain links to websites that are not owned, operated or controlled by FareHarbor or its affiliates. Neither FareHarbor nor any of its respective affiliates are responsible for the content, materials or other information located on or accessible by any website not owned, operated or controlled by FareHarbor or its affiliates.
4.17 You agree to not:
i. use any robot, spider, scraper or other automated means to access the Service for any purpose without FareHarbor’s express written permission;
ii. take any action that imposes, or may impose in FareHarbor’s sole discretion an unreasonable or disproportionately large load on FareHarbor infrastructure;
iii. interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; and/or
iv. bypass or attempt to bypass any restrictive measures FareHarbor may implement to prevent or restrict access to the Service.
4.18 FareHarbor retains the right, in its sole discretion, to deny access to anyone to the Service, at any time and for any reason, including, but not limited to, for violation of the Terms of Service.
5. Intellectual Property Rights
5.1 All of the content featured or displayed on the Service, including without limitation text, graphics, photographs, images, sound, and illustrations (“Content”), is owned by FareHarbor, its licensors, vendors, agents or its Content providers. All elements of the Service, including without limitation the general design and the Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. The Service may only be used for the intended purpose for which such Service is being made available.
5.2 All trademarks, service marks and trade names of FareHarbor used in the Service (including but not limited to: FareHarbor’s name and logo; the Service’s name, design, and any logos) (collectively “Marks”) are trademarks of FareHarbor or its affiliates, partners, vendors or licensors. You are not allowed to use, copy, reproduce, republish, upload, post, transmit, distribute, or modify the Marks in any way, including in advertising or publicity pertaining to distribution of materials on the Service, without FareHarbor’s prior written consent. FareHarbor prohibits the use of the Marks as a “hot” link on or to any other website unless establishment of such a link is approved in advance. You shall not use FareHarbor’s name or any language, pictures or symbols which could, in FareHarbor’s judgment, imply FareHarbor’s endorsement in any written or oral advertising, presentation, brochure, newsletter, book, or other written material of whatever nature, without prior written consent.
5.3 FareHarbor may create websites, customer relationship management tools and other online features for your use (the “Online Assets”), and reserves the right to make changes to the Online Assets at its sole discretion. You acknowledge and agree that the Online Assets are the sole property of FareHarbor and, except for any of your marks displayed thereon, are not a “work made for hire” under the Copyright Act or any other law. To the extent that the foregoing does not apply, you assign to FareHarbor, and its successors and assigns, for no additional consideration, your entire right, title and interest in and to the Online Assets and any intellectual property rights contained therein. FareHarbor makes no warranties or guarantees that the Online Assets fully comply with the applicable rules and regulations. During your use of the Online Assets, you will be responsible for ensuring compliance with the applicable rules and regulations. Nothing contained in these Terms of Service shall be construed to reduce or limit FareHarbor’s right, title or interest in the Online Assets. Further, you agree to stop using and return to FareHarbor the Online Assets at FareHarbor’s request or upon the termination or expiration of these Terms of Service.
6. Privacy & Data Protection
6.1 The capitalized terms used in this Section 6 that are defined in the General Data Protection Regulation (“GDPR”) carry the same meaning as defined there.
6.2 This Section 6 applies to the Processing of Personal Data of (potential) customers (i.e. Data Subjects) that are processed for the purposes of performing the Service (“Booker Data”), for example: when Data Subjects enter into a Activity Contract, if Data Subjects visit a website that FareHarbor created for you or if Data Subjects visit your own website, where the Service is integrated. In this context, you will be regarded as the Controller and FareHarbor as the Processor. The purpose of this Section 6 is to ensure compliance with article 28(3) and (4) GDPR. You, as the data Controller, are at all times responsible for ensuring and demonstrating that any Processing of Booker Data is performed in compliance with all applicable data protection laws.
6.3 You acknowledge and agree that FareHarbor may also Process Booker Data as a Controller for analytical and statistical purposes with the aim of improving its products and services, and/or designing new products and services. Within that context FareHarbor may also monitor a Data Subject’s use of the Service and conduct analytics regarding such use.
6.4 You represent and warrant that all Booker Data Processed by FareHarbor shall be collected and Processed by you in accordance with applicable laws and that FareHarbor has all necessary rights and authorizations to Process the Booker Data, including, without limitation: (i) ensuring that all Booker Data is collected and Processed fairly and lawfully in accordance with applicable data protection laws and that Consent has been obtained from the Data Subjects where necessary; and (ii) ensuring that all Booker Data is accurate and up to date and that a notice or similar documentation in accordance with applicable data protection laws is provided by you to the Data Subjects prior to the collection of Booker Data which describes the Processing to be undertaken by FareHarbor pursuant to the Service and these Terms of Service.
6.5 Details of Booker Data Processing:
i. Nature of the Processing: collecting and transmitting Booker Data to you.
ii. Purpose: providing the Service, including enabling the Data Subject to enter into an Activity Contract and analyzing website visitor statistics.
iii. Duration of the Processing: the duration of the Booker Data Processing is determined by you.
iv. Type of Personal Data: Booker Data as determined by you that is required to provide the Service, including: full name, phone number, email address, payment detail, online surfing history and other information collected by means of cookies or similar technologies.
v. The categories of Data Subjects: your (potential) customers.
6.6 Where FareHarbor acts as a Processor under these Terms of Service with respect to the processing of Booker Data, FareHarbor shall:
i. Process the Booker Data as instructed to perform the Service in accordance with these Terms Service, unless you issue additional documented instructions as mutually agreed by the Parties or as otherwise required by Union or Member State law. In the latter case, FareHarbor shall inform you of that legal requirement before Processing, unless the law prohibits this on important grounds of public interest;
ii. upon request, make available to you information reasonably necessary to demonstrate compliance with this Section 6 and obligations that stem directly from the GDPR; and
iii. Process Booker Data for the irreversible anonymization and/or aggregation of data to ensure that such Booker Data is no longer Personal Data if FareHarbor uses Booker Data for research, analysis, improvement and development purposes.
6.7 At your request, FareHarbor shall – during the term of these Terms of Service – permit and contribute to audits of the Processing activities concerning Booker Data covered by this Section 6. The costs of this audit shall be borne by you (both your own costs and FareHarbor’s costs). Before executing an audit you shall first request the reasonably necessary information from us to demonstrate our compliance with this Section 6. The audit shall only take place if you – even after answering the request for information referred to in the preceding paragraph – have reasonable doubts as to FareHarbor’s compliance with this Section 6. In the event of an audit, you shall give FareHarbor at least 60 days notice and such audit will be limited to the processing activities and systems where FareHarbor Processes Booker Data as a Processor and to the strict minimum (no more than once during any consecutive 12 month period, lasting a maximum of two business days, and only during business hours without impact on the FareHarbor business).
6.8 FareHarbor shall ensure that employees, contractors and other persons working for FareHarbor that are authorized to Process Booker Data, are subject to a contractual obligation of confidentiality or are under an appropriate statutory obligation of confidentiality.
6.9 You hereby provide FareHarbor general authorisation for engaging other processors (“Sub-processors”) for carrying out specific Processing activities on behalf of you in accordance with this Section 6. The list of Sub-processors used by FareHarbor at the time of your acceptance of these Terms of Service can be found on the FareHarbor Sub-processors Webpage. FareHarbor will inform you, through the FareHarbor dashboard or otherwise, of any intended changes concerning the addition or replacement of Sub-processors. In the event of any objection to the use of a particular Sub-processor, you retain your right of termination as per Section 11.4 below. For the avoidance of doubt, Articles 28.2 and 28.4 of the GDPR apply with full effect where Sub-processors have been engaged.
6.10 You agree that where FareHarbor engages Sub-processors for carrying out specific Processing activities (on behalf of you) and those Processing activities involve a transfer of Personal Data within the meaning of Chapter V of the GDPR (“Transfer”), FareHarbor and the Sub-processor may ensure compliance with Chapter V of the GDPR by using one of the transfer mechanisms mentioned in Chapter V of the GDPR, for example by using standard contractual clauses adopted by the Commission in accordance with of Article 46(2) GDPR. Upon request, FareHarbor will provide you with information on how it complies with Chapter V of the GDPR, where applicable.
6.11 You agree that any Transfer of Booker Data to you by FareHarbor under these Terms of Service is necessary for the performance of the Activity Contract or the implementation of pre-contractual measures taken at the customer’s request or because it is necessary for the conclusion or performance of a contract concluded in the interest of the customer between you and another natural or legal person, without prejudice to the Parties’ right to conclude that for certain Transfers another justification for Transfer may also apply.
6.12 Where required by applicable law and taking into account FareHarbor’s role as Processor, FareHarbor shall forward to you any requests it receives for exercising data subject’s requests as described in Articles 12 to 22 of the GDPR and reasonably assist you (i) to respond such requests within the time prescribed by law, (ii) carrying out a Data Protection Impact Assessment and Prior Consultation as described in Articles 35 and 36 of the GDPR and (iii) with inquiries, investigations, or requests from or notifications to a Supervisory Authority in connection with the Personal Data Processed in connection with the Service. However, you remain solely responsible for correctly assessing legality and legitimacy of requests and complaints in relation to Booker Data Processed and shared in the context of the Service before responding, and taking appropriate steps in response.
6.13 Each Party will ensure appropriate technical and organizational measures to properly secure the Personal Data, as described in Article 32 of the GDPR, including, but not limited to:
i. Measures for ensuring events logging;
ii. Measures for user identification and authorisation;
iii. Measures of encryption of Booker Data;
iv. Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and
v. Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services.
6.14 In the event of a Personal Data Breach concerning Booker Data, FareHarbor will notify you without undue delay after FareHarbor having become aware of the Personal Data Breach. Such notification shall contain, in so far as this is known, the presumed cause of the Personal Data Breach, the categories of Personal Data and Data Subjects and the number of Data Subjects involved. Further information shall, as it becomes available, subsequently be provided without undue delay. FareHarbor shall cooperate with you to comply with your obligations under Articles 33 and 34 GDPR.
6.15 You will decide whether the Personal Data Breach must be notified to the Supervisory Authority and/or the Data Subject, provided that you, subject to mandatory requirements under applicable law, (i) shall use best efforts to consult with FareHarbor and take into account FareHarbor’s reasonable requirements as to timing, content and manner of disclosure or notification, and recipient prior to making any disclosure or notification to any third-party (including any Supervisory Authority and Data Subjects) in relation to a Personal Data Breach, (ii) acknowledge and agrees that FareHarbor retains the right to voluntarily inform any third-party (including any supervisory authority, group entities and Data Subjects) about any Personal Data Breach; and (iii) shall not mention FareHarbor without its prior written authorization when notifying Data Subjects or any other third-party of a Personal Data Breach that FareHarbor hosts or stores.
6.16 In the event of a Personal Data Breach, the Processor will take all reasonable measures without undue delay to remedy the Personal Data Breach, minimize the consequences and prevent further Personal Data Breaches.
6.17 The Processor will keep a register of the Personal Data Breaches concerning Booker Data where FareHarbor acted as a Processor and the measures taken in response to Personal Data Breaches. Upon request you, the data Controller, will be given access to the aforementioned register.
6.18 For 12 months following termination of the Service for any reason whatsoever, subject to these Terms of Service, FareHarbor will return or delete Booker Data at your request. After 12 months following termination of the Service, FareHarbor shall not be required to retain, and shall have the right to delete, without prejudice to your right to reactivate the Service and within that context instruct FareHarbor to withhold from deleting the Booker Data. FareHarbor is not obliged to return or delete Booker Data if FareHarbor is legally required to keep Booker Data, for example due to supervisory and tax obligations.
6.19 You shall not be entitled to recover any fines imposed on you by a Supervisory Authority on any legal ground whatsoever from FareHarbor.
7.1 You may use the Service to create listings about your products or services. You will be prompted to answer a variety of questions in order to populate your listings, including, but not limited to, the location, capacity, size, features, availability of the product or service, cancellation and refund policy, pricing and related financial terms, applicable taxes and fees, and other information. All listings must also include a valid physical address and all material terms and conditions. The listing information provided by you will be made publicly available for Bookings via the Service. You acknowledge and agree that once a Booking for your product or service is completed through your ORS, the price and terms for such Booking may not be altered. You will not submit any listing with a false or misleading price or other information and will not submit any lists with a price and terms that it does not intend to honor.
7.2 When you create a listing, you may also choose to include certain requirements, which must be met by the customer who is eligible to request a Booking, including, but not limited to, requiring customers to have a verified phone number, certain qualifications or certifications, in order to book your product or services. You agree that no such requirements will be applied in a discriminatory or unlawful manner. In addition, you will not use the Service to request that a customer engages in any prohibited or unlawful activity or request any information from a customer that is prohibited by law or subject to any applicable data protection and security requirements.
7.3 FareHarbor may provide you with the ability to customize the appearance of the display of your listings, including fonts and colors, on the Service. You agree that any alteration you make to the appearance of your listings is at your own risk, and that you are solely responsible if such alterations fail to comply with applicable accessibility regulations and/or international web content accessibility standards and guidelines.
7.4 Subject to these Terms of Service, you grant to FareHarbor a worldwide, nonexclusive license in any and all media now or later known or developed during the term of these Terms of Service to use, reproduce, display, modify, create derivative works of (including translations), distribute, (sub)license and transmit Your Content (as defined below) solely for the purpose of providing the Service. “Your Content” means all information, data, and content made available by you to FareHarbor in connection with the Service, which may include:
i. your name, trademarks, and logos;
ii. images, photographs, and descriptions of your products or services; and,
iii. rates, pricing, schedules, capacities, and other information relating to reservation availability for your products or services.
7.5 Subject to the licenses granted under these Terms of Service, you reserve all right, title, and interest that you may have in Your Content. Subject to your rights, FareHarbor or its affiliates, as applicable, will retain all right, title, and interest in all modifications, improvements on, and derivatives of Your Content, including any translations. You represent and warrant that:
i. you have all necessary rights to grant to FareHarbor the licenses granted under these Terms of Service;
ii. no consents from or payments to any third-party are required for FareHarbor to exercise the rights granted under these Terms of Service; and,
iii. Your Content and FareHarbor’s use will not infringe upon any trademark, trade name, service mark, copyright, trade secret, or other proprietary right of any other person or entity.
7.6 You shall not post, upload, publish, submit or transmit any of Your Content via the Service that:
i. infringes, misappropriates or violates a third-party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
ii. violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability;
iii. is fraudulent, false, misleading or deceptive;
iv. is defamatory, obscene, pornographic, vulgar or offensive as determined in FareHarbor’s sole judgment;
v. promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
vi. is violent or threatening or promotes violence or actions that are threatening to any other person; or
vii. promotes illegal or harmful activities or substances.
In addition to any other remedies, FareHarbor may immediately suspend or terminate any of your listings that violate these restrictions.
7.7 You are solely responsible for Your Content included in your listings.
8.1 “Tax” or “taxes” mean any sales taxes, value added taxes (VAT), goods and services taxes (GST) and other similar municipal, state and federal or other withholding and personal or corporate income taxes.
8.2 All fees charged by FareHarbor to you are exclusive of any applicable taxes. Where applicable, or based upon request from you, FareHarbor may issue a valid tax invoice. You acknowledge that all invoices issued by FareHarbor will be made available by electronic means for self-service download through the Service.
8.3 IRS regulations regarding federal tax reporting requirements stipulate that FareHarbor or its payment processors must collect information for the IRS Form W-9, or its equivalent, from all providers of products or services in the United States. If applicable and if required by applicable IRS regulations, FareHarbor and the acquired PSP will issue any required 1099-Ks to you by sending them in a digital format via email.
8.4 You understand and agree that you are solely responsible for determining the tax reporting requirements that are applicable in consultation with your tax advisors. FareHarbor cannot and does not offer tax-related advice. Additionally, please note that you are responsible for determining all applicable federal, state and local taxes and governmental fees, and for including any applicable taxes and fees to be collected in the appropriate listings.
8.5 You agree to fully indemnify and hold harmless FareHarbor, its partners, agents, and employees from and against any claims, losses, damages, liabilities, judgments, penalties, fines, and expenses including, but not limited to, reasonable attorneys’ fees and costs, to the extent resulting from or arising out of (i) your failure to comply with the applicable tax reporting requirements in your jurisdiction, or (ii) your failure to determine, include, or remit all applicable federal, state and local taxes and governmental fees to the appropriate taxing authorities.
8.6 You also agree to fully indemnify and hold harmless FareHarbor, its partners, agents, and employees from and against (i) tax claims and liabilities of FareHarbor for Taxes for which you are responsible or liable, or (ii) where FareHarbor has the legal obligation to pay, collect, withhold and remit for, on behalf or instead of, you.
9.1 To meet your obligations under these Terms of Service and applicable law, you agree to maintain in full force and effect adequate liability insurance coverage in connection with the Service at all times during your use of the Service and for a period of two (2) years following the end of your use of the Service. At FareHarbor’s request, you agree to (i) name FareHarbor and its affiliates as additional insureds on such insurance policies, and (ii) provide FareHarbor with proof of insurance coverage required by this Section 9 and applicable law. If FareHarbor reasonably determines that your coverage is insufficient according to these Terms of Service and/or applicable law, you will promptly purchase additional coverage at FareHarbor’s request.
10. Limitation of Liability and Indemnification
10.1 You are solely and fully responsible for honoring all Bookings and fulfilling all obligations owed to customers pursuant to Activity Contracts entered into with customers. You agree that FareHarbor will not be responsible or held liable by you for matters related to the fulfillment of your obligations under the Activity Contract. You agree to indemnify, hold harmless and defend FareHarbor against any and all claims, liability, loss, damages, costs, and expenses FareHarbor might incur, including but not limited to attorneys’ fees and costs, which FareHarbor might be required to pay, directly or indirectly, in connection with any claims, causes of action, or suits brought by third parties related to the performance of your obligations under the Activity Contract.
10.2 You agree to defend FareHarbor from and against any and all third-party claims, actions, suits, proceedings, and demands arising out of or related to your breach of these Terms of Service. You further agree to indemnify and hold harmless FareHarbor for all reasonable attorney’s fees, damages, and other costs awarded against FareHarbor, including settlement amounts paid, related to any and all third-party claims, actions, suits, proceedings, and demands arising out of or related to your breach of these Terms of Service.
10.3 FareHarbor may utilize third-party products or service providers, including without limitation software, software-as-a-service, data sources and other products or services not provided by FareHarbor that are used to facilitate certain processes related to the Service. You acknowledge and agree that in no event shall FareHarbor be held liable for any losses or damages arising, indirectly or directly, from the use of third-party products or service providers to provide the Service, including, without limitation, lost profits, lost revenues, lost profits, lost business, or lost contracts.
10.4 In connection with any complaints, claims, or investigations undertaken by FareHarbor or a representative of FareHarbor regarding use or abuse of the Service or a breach under these Terms of Service, you agree and shall require customers making a Booking through your ORS to cooperate in good faith by providing information and taking such actions as may be reasonably requested by FareHarbor.
10.5 You agree that neither FareHarbor, nor any of its officers, directors, employees, shareholders, affiliates, agents, successors or assigns, shall be liable to you or to any third parties for any damages, including, but not limited to, indirect, punitive, or consequential damages (such as damages resulting from lost profits, lost revenues, lost data, or business interruptions).
10.6 In the event of any problems with, or objections to, the Service, your sole remedy is to discontinue your use of the Service.
10.7 You shall inform FareHarbor in writing of any claim as soon as reasonably possible but in any case within forty five (45) days after you become or could reasonably have become aware of a breach of any these Terms of Service and/or damages setting forth any and all relevant details in respect of such breach and all available information in support of such claim. If you do not comply with the requirements of this Section 10.7, all rights to any claims and rights under the Terms of Service are immediately forfeited.
10.8 A claim notified in accordance with Section 10.7 above not satisfied, settled or withdrawn will be unenforceable and irrevocably waived against FareHarbor on the expiry of a period of twelve (12) months after rejection of such claim by FareHarbor in writing, unless you have commenced legal proceedings in respect of such breach within that period.
10.9 Unless otherwise stated, the maximum aggregate liability of each Party to the other for all claims arising out of this Agreement shall not exceed, and is limited to, the lesser of the following two amounts: (i) the accrued Booking Fees collected by FareHarbor during the 12 calendar months preceding the first incident giving rise to the claim(s); or (ii) one hundred thousand euros (€100,000). This maximum aggregate liability does not apply in case of fraud, willful misconduct, and/or any violation of Section 14: Compliance Warranties.
11. Term and Termination
11.1 These Terms of Service shall be effective upon acceptance by you and shall be entered into for a indefinite period of time, unless terminated in accordance with this Section 11.
11.2 FareHarbor is entitled to suspend or terminate your rights under these Terms of Service (including, but not limited to: your access and use of the Service) in whole or in part with immediate effect, without a notice of default being required and without incurring any obligation to compensate for any damages, if any of the following circumstances occurs:
i. a material breach by you of any term of these Terms of Service;
ii. (filing of a request for) bankruptcy or suspension of payment (or similar action) in respect of the other Party;
iii. FareHarbor determines that you abuse the Service; or
iv. Your company is terminated or transferred in whole or in part to a third-party.
11.3 FareHarbor will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that you may incur as a result of termination or suspension of your access to the Service.
11.4 In addition to the above, both you and FareHarbor can terminate these Terms of Service at any time by providing the other Party with thirty (30) days written notice of termination.
11.5 You remain fully and solely responsible for fulfilling obligations owed to customers under Activity Contracts that were executed prior to any suspension or termination of these Terms of Service.
12.1 Parties understand and agree that in the performance of this Agreement, each Party may have access to or may be exposed to, directly or indirectly, confidential non-public information of the other Party (the ‘Confidential Information’). Confidential Information includes transaction, traffic and usage volume, marketing, financial and business plans, technical, software and operational information. All Confidential Information shall be treated as private and confidential.
12.2 Each Party agrees that: (a) all Confidential Information shall remain the exclusive property and ownership of the disclosing Party, and the receiving Party shall not use it for any purpose, except in furtherance of these Terms of Service, (b) it shall use prudent methods to ensure its employees, officers, agents and service providers (the ‘Permitted Persons’) maintain the security of the Confidential Information, (c) it shall ensure that Permitted Persons do not (i) copy, publish, or divulge the Confidential Information to any third-party, or (ii) use or store it in an unprotected retrieval system or database (other than pursuant to the Terms of Service hereof), and (d) it shall return or destroy all ((hard and soft) copies of) Confidential Information upon written request of the other Party.
12.3 Notwithstanding the foregoing, (a) Confidential Information shall not include any information to the extent it (i) is or becomes part of the public domain through no act or omission on the part of the receiving Party, (ii) was possessed by the receiving Party prior to the date of this Agreement, (iii) is disclosed to the receiving Party by a third-party having no obligation of confidentiality with respect thereto, or (iv) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, and (b) nothing in this Agreement shall prevent, limit or restrict a Party from disclosing Confidential Information (including any general information, or technical, operational, performance and financial data unless otherwise agreed between the parties) in confidence to an affiliated (group) company. You explicitly agree and acknowledge that Confidential Information may be shared with and disclosed to any entity or website affiliated to FareHarbor.
12.4 The confidentiality obligation remains in force after the Terms of Service have ended.
13. Force Majeure
13.1 Force majeure shall be deemed to exist on the part of FareHarbor if, after the conclusion of these Terms of Service, FareHarbor is prevented or impeded from fulfilling one or more of its obligations under the Terms of Service or the preparation thereof as a result of: war (whether declared or not), threat of war, civil war, terrorism, riots, acts of war, a pandemic, epidemic, natural disaster or extreme natural event, fire, water damage, flooding, strike, sit-down strikes, lockouts, import and export restrictions government measures, defects in machinery, disruptions in the supply of energy, all this both in FareHarbor’s business and in the businesses of third parties from which the vendor has to obtain all or part of the Service, whether or not under his own management, and furthermore due to all other causes that arise through no fault of FareHarbor.
13.2 If FareHarbor successfully invokes this Section, it is relieved from its duty to perform its obligations under the Terms of Service and from any liability in damages or from any other contractual remedy for breach of the Terms of Service, from the time at which the impediment causes inability to perform, provided that the notice thereof is given without delay. If notice thereof is not given without delay, the relief is effective from the time at which notice thereof reaches you.
14. Compliance Warranties
14.1 Each Party shall comply with applicable laws, including anti-money laundering, anti-corruption, anti-terrorist financing, anti-tax evasion, trade and economic sanctions, modern slavery, human trafficking and human rights laws, rules, and regulations, that may restrict FareHarbor’s ability to make the Service available to you and from making, processing, or facilitating payments to your bank account, if it has no connection to the jurisdiction where you are located.
14.2 Anti-Bribery and Anti-Corruption Compliance: in relation to the execution, performance and delivery of these Terms of Service, each Party (including their respective employees, directors, officers, agents and other representatives) has and shall:
i. Not directly or indirectly: (a) offer, promise or give to any third-party (including any governmental official or political party’s official, representative or candidate); or (b) seek, accept, agree to receive or get promised for itself or for another party, any gift, payment, reward, consideration, advantage or benefit of any kind which would or could reasonably be construed as bribery or an illegal or corrupt practice; and,
ii. Comply with (and not place the other Party in breach of) all applicable laws prohibiting bribery and corruption (including without limitation the U.S. Foreign Corrupt Practices Act 1977, the UK Bribery Act 2010 and the laws of any other territory with jurisdiction over the Parties).
14.3 Tax Obligations and Compliance with Laws Prohibiting Tax Evasion or Tax Fraud: in connection with their performance of and remuneration under these Terms of Service, each Party (including their respective employees, directors, officers, agents and other representatives) shall pay in full all taxes that are lawfully due from it in any jurisdiction(s) in which it operates, and shall not:
i. commit (or facilitate, aid, abet, counsel or procure the commission of) any offense of cheating the public revenue or being knowingly concerned in, or taking steps with a view to, the fraudulent evasion of any tax, or
ii. otherwise breach or take any action that may place the other Party in breach of applicable laws prohibiting criminal tax fraud, tax evasion and the facilitation thereof.
14.4 Compliance with Economic and Trade Sanctions: Neither Party shall take any action that would breach, or place the other Party in breach of, applicable sanctions (including without limitation those imposed by the UN, U.S., EU, NL and/or UK and any other territory with jurisdiction over the parties). Each Party represents and warrants that, under these Terms of Service, it is not and is not in any way connected to, part of, involved in or related to or under the control, management or ownership of a person who is:
i. a terrorist(s) or a terrorist organisation(s);
ii. listed on any applicable list of sanctioned parties/persons (including without limitation the lists of restricted parties issued by the UN, US, EU, NL and UK);
iii. owned by, controlled by, or acting at the direction of, any person or persons listed on such a list; or
iv. ordinarily a resident of or organized under the laws of any jurisdiction subject to comprehensive or other territory-wide sanctions imposed by the UN, US, EU or UK.
14.5 Modern Slavery, Human Trafficking and Human Rights: each Party represents and warrants that, for the term of the Agreement, it complies with all applicable laws concerning employment rights, human rights, non-discrimination and modern slavery, and in particular does not hold any person in slavery or servitude, or arrange or facilitate the travel or stay of another person with a view to that person being exploited.
14.6 Compliance with Anti-Money Laundering and Terrorism Financing Laws: you represent and warrant that, under these Terms of Service, (i) no funds (or portion thereof) that it may remit to FareHarbor shall constitute the proceeds of crime, (ii) you shall not (whether knowingly or with cause to suspect) acquire, use, possess, retain, control or otherwise deal in funds or other property constituting the proceeds of crime, and (iii) you shall not otherwise engage in any activity or become concerned in an arrangement that may constitute an offence under applicable laws prohibiting dealing in the proceeds of crime and/or the financing of terrorism.
14.7 You represent and warrant that, with respect to the bank account to be used in connection with the Service, your ORS, and these Terms of Service (“Bank Account”): (i) you are the sole holder and beneficiary of the Bank Account; (ii) all payments and transfers between FareHarbor and the Bank Account (and vice versa) are at arm’s length and do not violate any applicable laws (including in particular laws concerning money laundering, bribery and corruption, tax evasion, terrorist financing, financial sanctions and other financial crimes); and (iii) you do not use the Bank Account (or any funds transferred to or from Booking.com) for breaches of laws concerning money laundering, bribery and corruption, tax evasion, terrorist financing, financial sanctions or other financial crimes.
14.8 FareHarbor warrants and represents that its operations are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, and applicable anti-money laundering statutes of all jurisdictions where FareHarbor or any of its subsidiaries conduct business, and the rules and regulations, and guidelines administered or enforced by any governmental agency.
14.9 Compliance with Applicable Competition Laws: each Party represents and warrants that, under these Terms of Service, it complies with all applicable competition laws, including but not limited to rules governing information exchange and use of data (including Confidential Information).
14.10 Internal Compliance Measures: each Party shall, under these Terms of Service, implement reasonable internal measures (including, but not limited to policies, procedures, compliance audits and training) intended to ensure that it (including its employees, directors, officers, agents and other representatives) does not breach the requirements under this Section 14.
15.1 The Sections entitled “Limitation of Liability and Indemnification”, “Survival”, “Miscellaneous”, “Privacy & Data Protection”, “Tax”, and “Applicable Law and Forum” will survive any termination or expiration of these Terms of Service. Any additional provisions herein that could be reasonably interpreted to survive the termination or expiration of these Terms of Service shall remain in effect until all applicable statutes of limitations have expired.
16. Applicable Law and Forum
16.1 These Terms of Service shall be exclusively governed by and construed in accordance with the laws of the Netherlands. Any disputes arising out of or in connection with these Terms of Service shall exclusively be submitted to and dealt with by the competent court in Amsterdam, the Netherlands.
17.1 Modification and Amendment. FareHarbor reserves the right to modify or amend these Terms of Service at any time. Upon such modification or amendment, FareHarbor will provide you with reasonable notice, at least one month in advance, prior to the change taking effect either by emailing the email address associated with your account, communicating such information via the Service, your ORS, or by other means. Any modifications to these Terms of Service will become effective on the date set forth in our notice. If you do not agree to any modification to the Terms of Service, you shall immediately stop all access to and use of the Service. Your continued use of the Service after any modification to the Terms of Service shall be deemed as your acceptance to the Terms of Service as modified.
17.2 Severability. If any of the provisions of these Terms of Service are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms, so that these Terms of Service shall remain in full force and effect.
17.3 Assignment. You may not assign your rights under these Terms of Service, including, without limitation, by operation of law or merger, without FareHarbor’s prior written approval, and any attempt to assign these Terms of Service without such prior approval is void. You agree that FareHarbor may, at its sole discretion and without your consent, assign its rights under these Terms of Service to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
17.4 Waiver. FareHarbor’s failure or delay to enforce any rights or provisions in these Terms of Service will not constitute a waiver of such provision, or any other provision of these Terms of Service.