WHEREAS, FOREST TRAVEL is a fully-appointed, qualified, and acting full-service travel management company engaged in the general business of arranging, planning, and reserving of domestic and international passenger transportation, lodging and ancillary services; WHEREAS, FOREST TRAVEL and a third party have entered into an alliance agreement whereby FOREST TRAVEL is a reseller of a certain web-based online booking tool; and WHEREAS, Client and FOREST TRAVEL desire to enter into an agreement, pursuant to which FOREST TRAVEL will provide Travel Management Services as may be requested by authorized representatives of Client, its subsidiaries and affiliates. NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of which is hereby mutually acknowledged, the Parties hereto agree as follows:
- TERM AND TERMINATION. The term hereof will commence when you first access the Services and continue in effect until terminated by either party. FOREST TRAVEL may, in its sole discretion, terminate or suspend your access to all or part of the Services for any or no reason and with no prior notice to you; provided, however, if FOREST TRAVEL terminates for a reason other than your misconduct or breach of these Terms, and you have prepaid for Services, FOREST TRAVEL will provide a refund on a pro rata basis for such pre-paid amounts. You may terminate this Agreement at any time by discontinuing use of the Services.
- DEFAULT. If either Party breaches any material provision of this Agreement, the non-defaulting Party shall give written notice to the other Party, specifying the nature of the default. If such default is not remedied or substantial efforts acceptable to the non-defaulting Party are not made to remedy such default within thirty (30) days from receipt of such notice, then the non-defaulting Party may at its option, either (a) suspend the performance of its obligations under this Agreement until such default is remedied, or (b) terminate this Agreement upon ninety (90) days prior written notice to the other Party. Either Party may also terminate this Agreement upon ten (10) days prior written notice to the other Party if: (w) the other Party begins liquidation or dissolution proceedings; (x) the other Party assigns a substantial portion of its assets for the benefit of its creditors; (y) bankruptcy proceedings or similar federal or state court proceedings are filed with respect to the other Party’s business; or (z) the other Party fails to pay its debts as they become due. Termination under this provision or any provision of this Agreement shall not relieve or release either Party from any rights, liabilities, or obligations which it has accrued prior to the date of such termination.
- TRAVEL INDUSTRY CHANGE. The Parties acknowledge that the travel industry is volatile, and therefore presents special inherent risk of change that is outside of the control of FOREST TRAVEL. A “Travel Industry Change” means changes including, but not limited to, operating rules and charges imposed by airlines, hotels, car rental companies, the Airline Reporting Corporation (“ARC”), Global Distribution Systems (“GDS”), credit card companies, and other distributors and suppliers. The Parties agree that upon written notice by FOREST TRAVEL of a Travel Industry Change, which materially increases the cost to FOREST TRAVEL to perform its obligations hereunder, the Parties will renegotiate in good faith the terms of this Agreement. If the Parties are unable to agree upon new terms of this Agreement within thirty (30) days of such notice by FOREST TRAVEL, then FOREST TRAVEL may terminate this Agreement upon sixty (60) days written notice to Client.
- DATA PROTECTION.
4.1. Each party warrants and represents to the other that it will comply with all applicable privacy and data security laws. Client acknowledges and agrees that FOREST TRAVEL will collect, use, disclose and transfer across borders personally identifiable information of Client’s Travelers (“Personal Data”) and, to the extent that Client provides FOREST TRAVEL with Personal Data, Client agrees to ensure that Client’s Travelers are given notice of the foregoing and legally consent to our collection, use, disclosure and transfer of their Personal Data. FOREST TRAVEL will not attempt to collect, use, disclose, or transfer any Personal Data for any purpose other than as: (i) reasonably necessary to perform the Services or as otherwise necessary to perform FOREST TRAVEL’s obligations or exercise FOREST TRAVEL’s rights under the Agreement (including, without limitation, using Personal Data to develop reports at Client’s request), or (ii) otherwise required by law. Client agrees to make available only that Personal Data which is necessary for FOREST TRAVEL to perform the Services, is solely responsible for the accuracy of such information, and has valid and enforceable rights to disclose Personal Data for the purposes contemplated hereunder.
4.2. In order to provide the Services to individual travelers and to satisfy FOREST TRAVEL’s obligations under the Agreement, FOREST TRAVEL will maintain, enhance and expand Traveler Profiles. As between FOREST TRAVEL and Client, Client owns the Personal Data contained in these profiles; however, the law in certain jurisdictions provides that the Personal Data contained in the Traveler Profiles are owned by the Client’s Travelers. All Traveler Profile templates are FOREST TRAVEL’s property and Travel Agent reserves all rights therein.
4.3. For the avoidance of doubt, Client acknowledges and agrees that (i) nothing contained in this Section will limit or otherwise effect FOREST TRAVEL’s right to disclose information to a governmental authority (or to a third party that the governmental authority requires) to the extent required by applicable law, and (ii) nothing contained in this Section will limit or otherwise effect FOREST TRAVEL’s right to use any data which is in an aggregate form or otherwise in a format that does not contain Personal Data.
- PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS.
5.1. FOREST TRAVEL hereby grants Client a limited, non-exclusive, royalty-free, non-transferable license for the Term to use intellectual property that FOREST TRAVEL provides to Client in connection with the Services for the sole purpose of using the Services in accordance with the terms of this agreement.
5.2. All rights not specifically granted in this Agreement are expressly reserved to FOREST TRAVEL and/or its Suppliers. Neither Party shall use the trademarks, trade names, service marks, or logos of the other Party in advertising, publicity, promotional marketing or other material in a derogatory way. Notwithstanding, FOREST TRAVEL may state in its presentation materials (including website landing pages for promotional purposes) to prospective and current clients the fact that it is the travel management company of the Client and use the Client’s name for this purpose only, unless written request by Client is made to decline such use of logos, trademarks etc.
- CONFIDENTIALITY. The Client and FOREST TRAVEL agree that all information pertaining to the other, obtained pursuant to the negotiation and/or administration of this Agreement (collectively, “Confidential Information”), shall be maintained in strict confidence and shall not be released or disclosed to any other corporation, company, association, or individual for any reason whatsoever except (a) as agreed to in writing; (b) information that is travel data in an aggregate form or otherwise in a format that does not contain personally identifiable information; (c) information that when received by the receiving Party is in the public domain or subsequently enters the public domain without fault of the receiving Party; (d) information that when received was known to receiving Party; (e) information that at any time is received in good faith by receiving Party from a third party which receiving Party had no reason to believe was not lawfully in possession of the same or did not have the right to disclose the same; (f) as required by law or by judicial, administrative, or civil legal process; provided that the Party receiving such process, or subject to such requirement, shall promptly advise the other in writing so that the other may seek an appropriate protective order; (g) by FOREST TRAVEL for internal purposes; or (h) to any of its affiliates, officers, directors, employees, agents, advisers, representatives, or travel suppliers, to the extent that such disclosure is reasonably necessary for performance of a Party’s obligations or the provision of Services under or pursuant to this Agreement. For the avoidance of doubt, this Section will survive any termination or expiration of this Agreement.
- DISCLAIMER AND LIMITATION OF LIABILITY.
7.1. Except as otherwise explicitly set forth in this agreement, the services are provided “AS IS”, and FOREST TRAVEL disclaims all oral, written, express, implied, and statutory warranties and representations with respect to the use, misuse, or inability to use the services, their quality, their accuracy or reliability, or their merchantability, title, non-infringement of third-party rights, or fitness for a particular purpose or that the services are error free or will be offered without interruption.
7.2. The total liability of either Party hereunder shall be limited to an amount equal to the total amount of the compensation due by the Client to FOREST TRAVEL hereunder in the six (6) months period immediately preceding the claims. Nevertheless, if either Party becomes liable to pay for any loss, cost, or expense before the end of the first six (6) months of this Agreement, either Party’s liability for such loss, cost or expense shall be limited to the equivalent of the total amount of compensation accrued at the time such loss, cost, or expense became payable and any such amount shall be included in the total liability of such Party for any subsequent claim.
7.3. Notwithstanding anything contained in this Agreement to the contrary, neither Party nor its direct or indirect subsidiaries, affiliates, agents, employees or representatives shall be liable to the other Party for any indirect, special, incidental, consequential, punitive, or exemplary damages of any kind (including, without limitation, lost revenues, loss of profits, or loss of business), arising from this Agreement or relating to the obligations hereunder.
7.4. FOREST TRAVEL, in providing Services including but not limited to making reservations and issuing airline tickets and other documents to its clients, acts solely in its capacity as the agent for the Supplier of the travel services. FOREST TRAVEL does not guarantee or insure the services to be provided by any Supplier.
7.5. FOREST TRAVEL assumes no responsibility for actions beyond the control of FOREST TRAVEL in connection with travel services. FOREST TRAVEL is not responsible or liable for any act, error, omission, injury, loss, accident, damage, delay, nonperformance, irregularity, or any consequences therefrom, which may be occasioned through the neglect, or default, or any other act or inaction of any Supplier. FOREST TRAVEL does not guarantee or insure the services to be provided by any Supplier. The Services are provided in part based upon Third-Party Information. FOREST TRAVEL shall have no liability for the accuracy, completeness, timeliness, or correct sequencing of any Third-Party Information, or for any decision made or action taken by Client in reliance upon any Third-Party Information. To the extent that FOREST TRAVEL collects any passenger data on behalf of air carriers or other vessels for purposes of meeting governmental requirements (such as the United States’ Advance Passenger Information System requirements), notwithstanding anything to the contrary in this Agreement, Client hereby waives and releases any and all obligations and liabilities of FOREST TRAVEL, expressed or implied, arising by law or otherwise, related to such activities. Without limiting the generality of the foregoing, Client acknowledges that FOREST TRAVEL will not be liable if FOREST TRAVEL is supplied with incorrect data regarding a Client’s Traveler’s residence in the United States or a Client’s Traveler changes his or her plans without informing FOREST TRAVEL.
7.6. FOREST TRAVEL shall not be responsible for any direct or consequential damages resulting from any of the aforementioned acts or omissions of any Supplier.
7.7. In some instances, FOREST TRAVEL passes the proceeds from the sale of travel services to the Supplier of such services. In the event that such a Supplier defaults prior to providing the service for which payment has been made, the Client’s sole recourse for refund shall be with the defaulting Party, or from insurance covering such defaults.
7.8. FOREST TRAVEL shall not be liable for any fluctuation in price or change in schedule or equipment or accommodations for any travel service that occurs subsequent to payment for such service. FOREST TRAVEL disclaims all liability for errors or bias in reservations, fares, or other information provided by any automated airline reservation system.
7.9. For the avoidance of doubt, this Section will survive any termination or expiration of this Agreement.
- INDEMNIFICATION. Each Party agrees to indemnify and hold harmless the other Party from any third party claims, liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) asserted against the other Party and arising out of the indemnifying Party’s breach or alleged breach of any of its duties or obligations under this Agreement. In addition, Client agrees to indemnify and hold harmless FOREST TRAVEL from any third party claims, liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) asserted against FOREST TRAVEL and arising out of any of Client’s affiliate’s breach or alleged breach of any of its duties or obligations under this Agreement.
- HOLD-OVER OBLIGATIONS. Any obligations of the Client or FOREST TRAVEL stemming from Services or responsibilities rendered prior to the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement and be performed by the respective Parties.
- COMPLIANCE WITH LAWS. FOREST TRAVEL hereby warrants that all Services performed pursuant to this Agreement shall be in compliance with all applicable state and federal laws, and that FOREST TRAVEL shall abide by applicable provisions of the FAA and all rules, regulations, and policies relating to air carriers and regulation of ARC and IATAN.
- GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement shall be governed by and interpreted pursuant to the laws of the State of Florida. Both Parties to this Agreement waive any and all right to a trial by jury in any action or proceeding, brought or commenced by either Party, which is directly or indirectly related to this Agreement. If a dispute arises from or relates to this Agreement or the breach thereof, and if the dispute cannot be settled through direct discussions, the Parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The Parties further agree that any unresolved controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Florida. The arbitration shall be governed by the laws of the State of Florida. Except as may be required by law, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties.
- FORCE MAJEURE. Neither Party shall be liable for any delay or failure in performance of any part of this Agreement during any period in which such Party cannot perform due to Force Majeure Conditions. If any Force Majeure Condition occurs, the Party delayed or unable to perform shall use reasonable efforts to furnish prompt notice to the other Party, stating the nature of the Force Majeure Condition and any action being taken to avoid or minimize its effect.
- RELATIONSHIP OF THE PARTIES. The relationship of the Parties hereto is that of independent contracting parties and is not, and shall not be deemed to be, any other relationship including, without limiting the generality of the foregoing, that of joint ventures, partners, joint employers, or principal and agent.
- FOREST TRAVEL’S EMPLOYEES.
14.1. FOREST TRAVEL’s employees are employees of, and work exclusively for, and under the direction and control of FOREST TRAVEL. They are not the Client’s employees. FOREST TRAVEL shall make all decisions concerning employment issues including but not limited to salary increases, bonuses, schedules, and termination. Client acknowledges that FOREST TRAVEL’s human resources programs, policies, and procedures shall be followed as they relate to FOREST TRAVEL employees who are servicing Client. FOREST TRAVEL considers all information relating to an employee confidential and will not release any personal information on an employee to the Client.
14.2. Client agrees that the hiring, training, management, and retention of employees by FOREST TRAVEL to perform the Services for Client represents significant cost to FOREST TRAVEL, which cannot be specifically quantified. Client agrees that during the Term of this Agreement, and for a period of twelve (12) months following expiration of the Term or Renewal Term, as applicable, (i) not to solicit, directly or indirectly, or hire, an employee of FOREST TRAVEL; (ii) not to encourage, assist, or otherwise participate in the hiring of any such employee by another Party who provides travel services to Client substantially similar to those provided herein. Parties agree that the damages they may suffer as a result of this Section are not readily ascertainable, and therefore agree that a reasonable liquidated damage amount for a breach would equal one-third (1/3) of the annual salary (or annualized hourly wages) of the wrongfully hired, solicited or contacted employee.
- WAIVER AND SEVERABILITY. Any delay or omission of a Party to exercise any of its rights hereunder shall not waive, affect, or impair the rights of such Party and any such waiver must be in writing and signed by the Parties. If any provision of this Agreement is found to be void or unenforceable, that provision will be enforced to the maximum extent possible, and the remaining provisions of this Agreement will remain in full force and effect.
- NO ASSIGNMENT. The rights of FOREST TRAVEL and Client hereunder shall not be assignable, nor shall the obligations and duties of FOREST TRAVEL and Client hereunder be delegable. Notwithstanding the foregoing, FOREST TRAVEL may delegate any duty hereunder to an affiliate, when, in the reasonable business judgment of FOREST TRAVEL, such affiliate can provide equal or better service to Client in compliance with this Agreement. In addition, either Party may assign its interest in this Agreement to any affiliate of that Party in a merger, consolidation, or other business combination or restructuring where the assignee affiliate continues the business of the assigning Party. For the purposes of this Section, “affiliate” shall mean any entity controlled by, controlling, or under common control with a party, whether directly or indirectly. If assigned, this Agreement shall be binding upon the successors of FOREST TRAVEL and Client, including those duties relevant to information related to Client’s Travelers processed by FOREST TRAVEL for the purposes of this Agreement and compliance with all applicable labor, privacy, confidentiality, secrecy, and data protection laws, regulations, statutes, guidelines, and directives.
- HEADINGS. Headings of the sections hereof and of the Exhibit(s) attached hereto are inserted for convenience only and shall not constitute a part of this Agreement.
- ATTORNEYS’ FEES. In the event of legal action between the Client and FOREST TRAVEL on account of any alleged default by either hereunder, the prevailing Party shall be entitled to entry of judgment including reimbursement by the other Party for reasonable attorneys’ fees and costs incurred by the prevailing Party in connection with such action.
- SURVIVAL. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement shall survive the termination or expiration of this Agreement and continue in full force and effect.
- DEFINITIONS. Definitions of terms used throughout this Agreement, all Exhibits and Amendments shall be as defined in the footnotes, attached hereto and incorporated herein by reference.
- NOTICE. All notices, requests, demands, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and may be given by any of the following methods: (a) personally delivered, (b) sent by certified mail with return-receipt requested, (c) sent by facsimile, (d) sent by email, or (e) sent by other means which affords the sender evidence of delivery, attempted delivery, or rejected delivery, to the respective Parties. All such notices, requests, demands, waivers, and communications by means which affords the sender evidence of delivery, attempted delivery, or rejected delivery will be deemed to have been given and received at the date and time of receipt, attempted delivery, or rejected delivery; provided, however, any notice by fax or email must have evidence of delivery. A “read-receipt” received for an email delivery and a fax confirmation page from the sender’s fax machine will be deemed evidence of delivery for notices sent by email or fax, as applicable. If notice is given in accordance with this Section by either of the methods described in (c) or (d) above, a copy of such notice shall also be delivered within two (2) business days of the “electronic” delivery of such notice.
- “ARC” shall mean Airline Reporting Corporation.
- “Automobile Rental” shall mean car rentals only and shall exclude other means of ground transportation.
- “Client’s Traveler(s)” shall mean Client’s authorized officers, employees and representatives authorized by Client to utilize the services provided in this Agreement.
- “Concierge” shall mean select VIP Traveler(s) as designated by Client’s travel management who receive Concierge-type services and personal travel needs.
- “Contact” shall mean any telephone call, fax, email, text or other form of communication to a FOREST TRAVEL agent affecting one data record; work performed on multiple records will be counted as multiple contacts.
- “Domestic Reservations” shall mean reservations for travel within the 50 states of the United States.
- “Effective Date” shall mean the date written in this Agreement
- “Force Majeure Conditions” shall mean fire, flood, explosion, war, terrorist acts, strike, walk-out, embargo, government requirement, civil or military authority, act of God, or other similar causes beyond a Party’s control and without the fault or negligence of the delayed or non-performing Party.
- “FAA” shall mean the Federal Aviation Act.
- “GDS” shall mean Global Distribution Systems.
- “IATAN” shall mean International Airlines Travel Agents Network.
- “Hourly Rate” shall mean a rate charged per hour for Services provided by FOREST TRAVEL. The amount will vary depending on the type of Services being provided.
- “International Reservations” shall mean reservations for travel outside of the 50 states of the United States.
- “Lowest airfare” or “LA” shall mean the lowest airfare at the time of ticketing that is available in the GDS.
- “LTA” shall mean Lost Ticket Application.
- “OBT” shall mean an Online Booking Tool.
- “Program Management” shall mean the services provided to act as the liaison between FOREST TRAVEL and Client.
- “Renewal Term” shall mean each successive one (1) year periods commencing at the end of the Term.
- “Services” shall mean Travel Management Services and Enhanced Services, if applicable.
- “Supplier” shall mean a third party vendor with whom a reservation may be made, for example, airlines, car rental companies, hotels, etc.
- “Transaction Fee” shall mean the charges applied to the booking of a transaction.
- “FOREST TRAVEL” shall mean Forest Travel Agency, dba Forest Travel Management or Travel Management Company. “Travel Arranger” shall mean the person in the Client’s organization in charge of making reservations for any number of Client’s Traveler(s).
- “Traveler Profile” shall mean a document including personal information about Client’s Traveler.
- “VIP Traveler(s)” shall mean select Client Traveler(s) as designated by Client’s travel management who receive personalized attention.
- “Void/Refund/Exchange Processing” shall mean the act of voiding, refunding or exchanging a transaction.