Terms of Service
Last Updated: June 28, 2018
IMPORTANT! THIS IS A BINDING LEGAL AGREEMENT. PLEASE READ THESE TERMS AND CONDITIONS OF SERVICE CAREFULLY BEFORE USING THE SERVICE. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION, PROHIBITS CLAIMS AFTER TWO YEARS AND REQUIRES ALL LAWSUITS TO BE BROUGHT IN DELAWARE.
The terms and conditions, together with all updates, supplements, additional terms and any of Activiter’s rules and policies (collectively, the “Agreement”) are applicable to the Activiter’s website, Activiter.com, including any versions optimized for viewing on a mobile device or any version that is made available on a third-party website with Activiter’s authorization; Activiter call center; and all other interactive features, services, and communications provided by Activiter (the “Service”), however accessed or used, that are operated by us, made available by us, or produced and maintained by Activiter, Co. (collectively “Activiter” or “we”, “us”, or “our”). This Agreement is applicable to any individuals that use our service, including but not limited to entities that create a listing via the Service for their product or service (a “Provider”), third-parties that place reservations on behalf of particular Providers (a “Booking Agent”), and individual consumers that use the Service, directly or indirectly, in any fashion, including to request a reservation with a Provider (a “Guest”) (collectively “you” or “your”).
BY ACCESSING OUR WEBSITE OR USING OUR SERVICE, YOU ARE ACCEPTING THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICE OR ACCESS OUR WEBSITE. WE RESERVE THE RIGHT TO MODIFY OR AMEND THIS AGREEMENT FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF OUR SERVICE FOLLOWING THE POSTING OF CHANGES TO THIS AGREEMENT WILL MEAN YOU ACCEPT THOSE CHANGES. UNLESS WE PROVIDE YOU WITH SPECIFIC NOTICE, NO CHANGES TO THIS AGREEMENT WILL APPLY RETROACTIVELY.
YOU ACKNOWLEDGE AND AGREE THAT Activiter IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN PROVIDERS AND GUESTS, HAS NO CONTROL OVER THE CONDUCT OF THE PROVIDERS OR THEIR SERVICES, AND DISCLAIMS ANY AND ALL LIABILITY ASSOCIATED WITH THE USE OF PROVIDERS’ SERVICES.
1. How the Service Works. The Service can be used to facilitate the sale of Company’s services and the booking of said services by Guests. Activiter makes available a platform or marketplace for Guests and Providers to meet online and make a reservation related to Provider’s services (a “Booking”). Activiter is not an owner or operator of the Provider or any associated rental property, including, but not limited to, boats, equipment, nor is it a provider of the underlying activities, classes or tours, and Activiter does not own, sell, furnish, provide, rent, manage or control Provider’s products and services. Activiter’s responsibilities are limited to: (a) facilitating the availability of our Service to make Bookings and (b) serving as the Booking Agent of each Provider for the purpose of accepting payments from Guests on behalf of the Provider and Company.
2. Bookings. As a condition of your use of this Service, you warrant that (a) you are 16 years old or older if you are a Guest and 18 years old or older if you are a Provider or Booking Agent’s representative ; (b) you possess the legal authority to create a binding legal obligation; (c) you will use this Service in accordance with this Agreement; (d) you will only use this Service to make legitimate listing and/or Bookings for you or for another person for whom you are legally authorized to act; (e) you will not make any speculative, false or fraudulent listings or Bookings; (f) you will inform such other persons about the terms and conditions that apply to the Bookings, including all applicable rules and restrictions, and obtain their agreement to be bound by the terms and conditions; (g) all information supplied by you is true, accurate, current and complete, (h) you will not use the Service to find a Provider or Guest and then complete the transaction independent of the Service, attempt to circumvent any obligation to pay any fee to Activiter, or make any Bookings in the anticipation of demand, and (i) if you have a Activiter.com account, you will safeguard your account information and will be responsible for any use of your account by you and anyone other than you.
YOU ACKNOWLEDGE THAT ACTIVITER DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS OR BOOKING AND MAKES NO REPRESENTATIONS OR GUARANTEES ABOUT THE CONDITION, LEGALITY OR SUITABILITY OF ANY PRODUCT AND SERVICES OFFERED BY PROVIDER. Activiter IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS, BOOKINGS AND PROVIDER’S PRODUCTS AND SERVICES. THE USE OF PROVIDER’S PRODUCTS AND SERVICES IS AT THE GUEST’S OWN RISK.
The Providers, not Activiter, are solely responsible for honoring any Bookings and making available any product and services reserved through our Service. You agree and understand that you may be required to enter into an agreement with the Provider and that your Booking is contingent upon you agreeing to accept any terms, conditions, rules and restrictions imposed by the Provider. You acknowledge and agree that you, and not Activiter, will be responsible for performing the obligations of any such agreements and that Activiter is not a party to such agreements. For more information about Activiter’s seller of travel registration, please go here.
3. Account Registration and Security. In consideration of your access or use of the Service, you will: provide true, accurate, current and complete information about yourself and your business as prompted by the Service’ settings and item information page (such information being the “Registration Data”) and maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or complete, or Activiter has reasonable grounds to suspect that such information is untrue, inaccurate, not current or complete, Activiter has the right to suspend or terminate your account and refuse any or all future use of the Service.
Account Security. You are entirely responsible for the security and confidentiality of your username and password. Furthermore, you are entirely responsible for any and all activities that occur under your account, including activities performed by authorized users and other third-parties. You will not share your username and password with any third party or permit any third party to log-on to the Service using your account information. If you share your username and password with any third party, permit them to log-on to or otherwise use the Service using your account information, or are negligent in maintaining the security of your username or password such that a third party gains access to your account, you assume all risks and losses and are responsible for any account activities by that third party, including but not limited to changes to your username, password, listings, Bookings or account settings, as if you performed such changes yourself. You agree to immediately notify us of any unauthorized use of your account or any other breach of security of which you become aware.
Authorized Users. Any individual identified in your Registration Data or that you later identify to us, including joint business owners or additional users, shall be deemed an authorized user of your Activiter.com account. You are responsible for all account activities by authorized users. You authorize us to give any authorized user information about your account, discuss your account with them and/or make changes to your account, according to the level of account access you give to an authorized user through the Services. Any disputes between you and any authorized user, or any other third-party to whom you have provided access to your account, including their control of the account, are solely between you and that third-party and Activiter has no responsibility or liability regarding such disputes.
4. Property Damages. As a Guest, you acknowledge and agree that you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who you invite to, or otherwise provide access to, the Provider’s property or service. Both Guests and Providers agree to cooperate with and assist Activiter in good faith, and to provide Activiter with such information and take such actions as may be reasonably requested by Activiter, in connection with any complaints or claims or with respect to any investigation undertaken by Activiter or a representative of Activiter regarding use or abuse of the Service or violation of this Agreement.
5. Payment; Fees. In consideration for using the Service, you agree to pay the total amount included with the Booking, including any related charges, fees, deposits and taxes. The fees and other charges related to Provider’s products or services (the “Service Fee”) are set by the Provider. You acknowledge that Activiter charges an additional fee to Guests based on a percentage of the total Service Fee (the “Guest Fee”) and that Activiter may charge additional fees to Providers or Booking Agents. When applicable, taxes may also be charged. The Service Fee, Guest Fee, other charges and applicable taxes are all included in the “Total Fees.” Activiter will charge the full amount of the Total Fees to Guest’s method of payment at the time that the Booking is submitted by the Guest. Please note that Provider, not Activiter, determines the Service Fee and is solely response for honoring any confirmed Bookings reserved through our Service. Further, you acknowledge and agree that Activiter is not responsible for any fees or charges from Guest’s financial institution associated with this transaction.
Pre-authorization; Method of Payment: At the time that you make a Booking, you authorize Activiter, or a payment processor on its behalf, to (a) obtain a pre-authorization via your payment method for the Total Fees or (b) charge your payment method a nominal amount, not to exceed one US dollar ($1). You authorize Activiter, directly or indirectly via a third-party payment processor, to process your payment with the method of payment you select in the Booking and to collect the full amount of the Totals Fees for each confirmed Booking.
Security Deposits; Damages: Certain Providers may require security deposits be paid. Each Provider will describe the amount of the security deposits and other relevant information. The return of any security deposit may also be subject to additional terms and conditions available from the Provider. You authorize Activiter, directly or indirectly via a third-party payment processor, to obtain a pre-authorization at the time the Booking is made and process the full amount of the security deposit for a confirmed Booking against your selected method of payment. You acknowledge that Activiter will not pay interest on your security deposit and will only release it when indicated by the Provider. Activiter is not responsible for administering or accepting any claims related to the security deposit. All disputes related to the security deposit must be directed to the Provider. You also authorize Activiter, directly or indirectly via a third-party payment processor, to charge your method of payment to pay for any damages pursuant to Section 4.
Cancellations: The Provider’s cancellation policy will apply to any cancellation. Your ability to receive a refund for the Total Fees and other amounts charged to you will depend upon the terms of the Provider’s cancellation policy and, in some cases, no refund may be issued. Except as provided herein, the Total Fees are non-refundable. Details regarding refunds and cancellation policies of the Provider are available in the listing or from the Provider. If a Provider cancels a confirmed Booking made via the Service, it is at the Provider’s discretion and the Provider’s responsibility to issue a refund of the Total Fees for such Booking to the applicable Guest within a commercially reasonable time of the cancellation.
Recurring Payments: In some instances, Guests may be required to make recurring or incremental payments toward the Total Fees owed for a confirmed Booking (“Recurring Payments”). If Recurring Payments apply to your payment obligations for Total Fees owed for a confirmed Booking, you authorize Activiter, on behalf of the Provider, to collect the Total Fees in the Co.rements and at the frequency associated with the applicable Recurring Payments, identified on the Booking.
Donations: Some Providers may pledge to donate a portion of the funds they receive from confirmed Bookings to a particular cause or charity. Activiter is not responsible for the selection of any particulars charities and is not responsible for how, if or when the donation is made.
Foreign Currency: Activiter provides a feature through which you may view the Total Fees for various listings in foreign currencies. You acknowledge and agree that these a foreign currency conversion are for information purposes only, are not official and should not be relied upon, and may differ from the actual conversation rate charged by your financial institutions. All payments or other transactions with the Service will be in US dollars, unless otherwise expressly stated, and any refunds or deposits will be returned at the then-current exchange rate for US dollars. You further acknowledge that exchange of foreign currency into US dollars will be performed by your financial institution and our payment process and that the applicable rate may be different from the market rate and that your financial institution may impose additional fees or charges for international transactions. These additional charges may cause the amount listed on your statement to be different from the total amount listed on the Booking. If you have any questions about the fees or exchange rate applied to your Booking, please contact your financial institution.
6. Right to Cancel, Errors, Mistakes. The Service may contain technical inaccuracies and typographical or other errors in connection with information displayed, including without limitation rates, fee or availability related to your transaction. Activiter assumes no responsibility or liability for such errors, inaccuracies, or omissions. Activiter has the right to make changes, corrections or cancellations to such information or reservation, at any time, including after confirmation of a transaction. Activiter is not responsible for communication failures, errors, difficulties, or other malfunctions or lost, stolen or misdirected transactions, transmissions, messages or entries on or in connection with our Service. The Service may not be continuously available due to maintenance or repairs or due to computer problems, disruptions in Internet service or other unforeseen circumstances.
8. Copyright and Ownership. All of the content featured or displayed on the Service, including without limitation text, graphics, photographs, images, sound, and illustrations (“Content”), is owned by Activiter, 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. You are authorized to view, play, print and download copyrighted documents, audio and video found on our Service for personal, informational, and non-commercial purposes only. You may not modify any of the materials and you may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information or work contained on the Service. The Service, its Content and all related rights shall remain the exclusive property of Activiter or its licensors unless otherwise expressly agreed. You will not remove any copyright, trademark or other proprietary notices from material found on the Service.
We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to Activiter. We reserve the right to remove any material alleged to be infringing without prior notice and without liability to you. When appropriate, we will also terminate your account if you are determined to be a repeat infringer. If you believe that your copyrighted information has been used in a way that constitutes copyright infringement, please send a notice that complies with the requirements of the Digital Millennium Copyright Act to our designated agent at:
Attn: DMCA Agent
PO Box 2789
Honolulu, HI 96817
9. Trademarks; No Endorsement. All trademarks, service marks and trade names of Activiter used in the Service ( including but not limited to: Activiter’s name and logo; the Service’s name, design, and any logos) (collectively “Marks”) are trademarks of Activiter or its affiliates, partners, vendors or licensors. You may not 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 Activiter’s prior written consent. Activiter 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 Activiter’s name or any language, pictures or symbols which could, in Activiter’s judgment, imply Activiter’s endorsement in any written or oral advertising, presentation, brochure, newsletter, book, or other written material of whatever nature, without prior written consent.
Activiter does not control any Provider or any product or service. You are responsible for determining the appropriateness and suitability of any prospective Guest, Booking Agent, Provider or any activity booked through this Service.
10. Inappropriate Material. You are prohibited from using the Service to post or send any unlawful, threatening, defamatory, libelous, obscene, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense or give rise to civil liability, or otherwise violate any law. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing prohibitions, we may take any action we deem necessary to cure or prevent the violation. We may fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone inappropriately using the Service.
11. Links. Running or displaying the Service or any information or material displayed on the Service in frames or through similar means on another website without our prior written permission is prohibited. From time to time, the Service may contain links to websites that are not owned, operated or controlled by Activiter or its affiliates. All such links are provided solely as a convenience to you. If you use these links, you will leave the Service. Neither we nor any of our respective affiliates are responsible for any content, materials or other information located on or accessible from any other website. We do not endorse, guarantee, or make any representations or warranties regarding any other websites, services, or any other information located or accessible from any other websites or services. If you decide to access any other websites, you do so entirely at your own risk.
12. Access and Interference. You agree that you will not use any robot, spider, scraper or other automated means to access the Service for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (iii) bypass any measures we may use to prevent or restrict access to the Service. We retain the right at our sole discretion to deny access to anyone to this Service, at any time and for any reason, including, but not limited to, for violation of this Agreement.
13. General Representations and Warranties. You represent that you: if a Guest are 16 years old or older or if a Provider or Booking Agent’s representative 18 years old or older, have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions, and obligations herein, and your use of the Service is and will be in compliance with all applicable laws. In connection with information you submit, you affirm, represent and warrant the following: (i) you have obtained all consents and possess all copyright, patent, trademark, trade secret and any other proprietary rights, or the necessary licenses thereto, to grant the license in Section 7; (ii) if necessary you have the consent of each and every identifiable natural person to use such person’s name or likeness in the manner contemplated by the Service; (iii) you have read, understood, agree with, and will abide by the terms of this Agreement; (iv) you are not, and have not been an agent of Activiter and were not and are not acting on behalf of, or as a representative of Activiter; and (v) the submitted information and Activiter’s use thereof as contemplated by this Agreement will not infringe any rights of any third party, including but not limited to any intellectual property rights, privacy rights and rights of publicity.
14. DISCLAIMERS. YOUR USE OF THIS SERVICE IS AT YOUR RISK. THE INFORMATION, MATERIALS AND SERVICE PROVIDED ON OR THROUGH THE SERVICE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND including WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER Activiter, NOR ANY OF ITS AFFILIATES, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS OR SERVICE PROVIDED ON OR THROUGH THE SERVICE. THE INFORMATION, MATERIALS AND SERVICE PROVIDED ON OR THROUGH THE SERVICE MAY BE OUT OF DATE, AND NEITHER Activiter, NOR ANY OF ITS AFFILIATES MAKES ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS OR SERVICE. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ACTIVITER OR THROUGH THE SERVICE, CONTENT AND SERVICE WILL NOT CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
THE PROVIDERS AND ANY BOOKING AGENTS ON THIS SERVICE ARE INDEPENDENT CONTRACTORS AND NOT AGENTS OR EMPLOYEES OF THE ACTIVITER COMPANIES OR THE ACTIVITER AFFILIATES. THE ACTIVITER COMPANIES AND THE ACTIVITER AFFILIATES ARE NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY SUCH SUPPLIERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. THE ACTIVITER COMPANIES AND THE Activiter AFFILIATES HAVE NO LIABILITY AND WILL MAKE NO REFUND IN THE EVENT OF ANY DELAY, CANCELLATION, OVERBOOKING, STRIKE, FORCE MAJEURE OR OTHER CAUSES BEYOND THEIR DIRECT CONTROL, AND THEY HAVE NO RESPONSIBILITY FOR ANY ADDITIONAL EXPENSE, OMISSIONS, DELAYS, RE-ROUTING OR ACTS OF ANY GOVERNMENT OR AUTHORITY. RATINGS DISPLAYED ON THIS SERVICE ARE INTENDED AS ONLY GENERAL GUIDELINES, AND THE ACTIVITER COMPANIES AND THE ACTIVITER AFFILIATES DO NOT GUARANTEE THE ACCURACY OF THE RATINGS. ACTIVITER, ITS AFFILIATES AND THEIR RESPECTIVE SUPPLIERS MAKE NO GUARANTEES ABOUT THE AVAILABILITY OF SPECIFIC PRODUCTS AND SERVICES.
15. LIMITATIONS OF LIABILITY; LIMITATION ON TIME TO FILE CLAIMS. Activiter does not assume any responsibility for and is not liable for any damages to your computer, equipment or other property caused by or arising from your access to, use of, or browsing the Service, or your downloading of any information or materials from this Service. IN NO EVENT WILL ACTIVITER, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ( including, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USING THE SERVICE, ANY WEBSITES OR APPLICATIONS LINKED TO THE SERVICE, OR THE MATERIALS, INFORMATION OR OTHER CONTENT CONTAINED ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, ACTIVITER’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IN THE EVENT OF ANY PROBLEM WITH THE SERVICE, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SERVICE. IN THE EVENT OF ANY PROBLEM WITH THE PROVIDER OR THE PROVIDER’S SERVICE, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS FROM THAT PROVIDER DIRECTLY AND THAT ACTIVITER IS NOT RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES Co.URRED BY YOU AS A RESULT OF ANY DEALINGS WITH THE PROVIDER. IN NO EVENT SHALL ACTIVITER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT ( including, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED , IN THE AGGREGATE, THE GREATER OF (A) THE SERVICE FEES YOU PAID TO Activiter IN CONNECTION WITH SUCH TRANSACTION(S) OR (B) ONE HUNDRED DOLLARS (US $100.00).
TO THE EXTENT ALLOWED BY APPLICABLE LAW, YOU AGREE THAT YOU WILL BRING ANY CLAIM OR CAUSE OF ACTION ARISING FROM OR RELATING TO YOUR ACCESS OR USE OF THIS SERVICE WITHIN TWO (2) YEARS FROM THE DATE ON WHICH SUCH CLAIM OR ACTION AROSE OR ACCRUED OR SUCH CLAIM OR CAUSE OF ACTION WILL BE IRREVOCABLY WAIVED.
16. Indemnity. You agree to defend, indemnify and hold Activiter and any affiliated company or individual harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, related to or in connection with (i) the use of the Service or your placement or transmission of any message or information on this Service by you or your authorized users; (ii) your violation of any term of this Agreement, including without limitation, your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any information that you provide to Activiter; or (vi) any other party’s access and use of the Service with your username and password.
17. Release. In the event that you have a dispute with one or more other users of the Service, the Provider or the Booking Agent, you release Activiter (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes, including without limitation any dispute over the payment to the Provider or the goods or service provided (or not provided) by the Provider.
18. Termination. Activiter may suspend or terminate your account or your use of the Service at any time, for any reason or for no reason. You are personally liable for any orders placed or charges incurred through your account prior to termination. We may also suspend your access to our Service in the event that (a) you breach this Agreement; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users, the Provider, or us.
19. Force Majeure. Neither Activiter nor you shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, Internet or hosting outage, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies; any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.
21. General. Any claim relating to the use of the Service, the materials contained herein or this Agreement is governed by the laws of the State of Delaware. You consent to the exclusive jurisdiction of the state and federal courts located in State of Delaware. A printed version of this Agreement will be admissible in judicial and administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. If any provision of this Agreement is held to be illegal, invalid or unenforceable, such provision shall be struck and amended to achieve as closely as possible the effect of the original provision and all other provisions of this Agreement will continue in full force and effect. You agree that this Agreement may be assigned by Activiter in our sole discretion. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You and Activiter are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement. Fictitious names of companies, products, people, characters mentioned on the Services are not intended to represent any real individual, company or product.
22. Entire Agreement; Survival. These terms and conditions are the entire agreement between you and Activiter and supersede any prior understandings or agreements (written or oral). The license granted by your in Section 7 (Licenses), 15 (Limitations of Liability; Limitation on Time to File Claims), 16 (Indemnity), 17 (Release) and 21 (General) shall survive any termination or expiration of this Agreement.
ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO PROVIDERS AND BOOKING AGENTS
23. Additional Representations and Warranties. In addition to the representations and warranties contained in Section 13 and elsewhere in this Agreement, you further represent, warrant and covenant that (a) you are responsible for any and all content contained in your listings; (b) any information or content that is submitted to, published or displayed via the Service will not include any false, misleading, deceptive, defamatory, obscene, pornographic, vulgar or offensive materials, and that you will not use the Service to promote, encourage or solicit in any activity that is illegal, immoral, would give rise to civil liability or is prohibited in the jurisdictions where the listing appears or the Booking is offered; (c) you have the right or adequate license for any content that you publish or make available via the Service; (d) you will not solicit or collect any personal information from children under the age of 13; (e) that you are responsible for maintaining and providing your products and services in a safe and reliable manner and are responsible for any resulting harms; (f) you will not breach any agreements that you have entered into with the Guest or any other party; (g) your products and services will comply will all applicable laws, regulations, rules, zoning requirements and safety guidelines; (h) your listings will include any applicable government imposed tax or fee and that you will be solely responsible for the collection and payment of said fees to the governmental authorizes; and (i) you will not engage in any practice or conduct that conflicts with, interferes or violates the rights of any third party. You acknowledge and agree that Activiter is not responsible for your compliance with any applicable law, regulation or other requirement. Activiter reserves the right, at any time and without prior notice, to remove or disable access to any listing or suspend your use of the Service for any reason, including if Activiter, in its sole discretion, considers any use or content to be objectionable for any reason, in violation of this Agreement or otherwise harmful to the Service.
24. Listings. As the Provider, you may use the Service to create listings about your products or services. You will be asked 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, including any applicable taxes and fees. Information you include in a listing will be made publicly available via the Service and may be booked by Guests or Booking Agents. You acknowledge and agree that once a Guest or Booking Agent requests a Booking of your product or service, the price and terms for such Booking may not be altered by you. Provider 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 you do not intend to honor.
When you create a listing, you may also choose to include certain requirements which must be met by the Guests who are eligible to request a Booking, including, but not limited to, requiring Guests to have a profile picture or 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 Guest engage in any prohibited or unlawful activity or request any information from a Guest that is prohibited by law or subject to any applicable data security requirements.
As the Provider or Booking Agent, you may not post, upload, publish, submit or transmit any content ( including but not limited to any text, graphics, images, music, software, audio, video, information or other material) via the Services that (a) 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; (b) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability; (c) is fraudulent, false, misleading or deceptive; (d) is defamatory, obscene, pornographic, vulgar or offensive as determined in Activiter’s sole judgment; (e) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) is violent or threatening or promotes violence or actions that are threatening to any other person; or (g) promotes illegal or harmful activities or substances. In addition to any other remedies, Activiter may immediately suspend or terminate any Provider or Booking Agent that violates these restrictions.
25. Bookings. You must honor all Bookings that are accepted by you or your agent. If a Guest makes a Booking of or uses your product and service, any agreement you enter into with such Guest is between you and the Guest and Activiter is not a party or responsible for any commitments or obligations contained therein.
Unless Provider gives their permission, Activiter will not use the email addresses from Guests that make a booking with your service to market our Service. Activiter may, however, contact your Guests to provide customer support, conduct satisfaction surveys and to respond to Guest inquiries related to their Bookings and other transactions on Activiter.
You acknowledge and agree that Activiter does not act as an insurer or as a contracting agent for you as a Provider or Booking Agent. Activiter recommends that you obtain appropriate insurance for your business. Please review any insurance policies that you may have carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Guests (and the individuals the Guest invites, if applicable) while using your product or service.
You acknowledge and agree that you are fully authorized, licensed and permitted to provide your products and services, including the authority to license or rent in associated property. You acknowledge and agree that, as between Activiter and yourself, you are responsible for the acts and omissions for your employees, contractors, vendors, agents and all other parties that are involved in providing your product or service or that are on your property.
26. Fees; Payment. You authorize Activiter to collect the Service Fee, Guest Fee and Total Fees described in Section 5. You acknowledge that the Guest Fee is based on a variable percentage of the Service Fee and is set by Activiter. All Guest Fees are retained by Activiter and all Service Fees, including related charges and amounts attributable to government taxes or fees set by Provider, are remitted to Provider as described below. Provider acknowledges and agrees that, in the event of a refund and unless waived by Activiter, Provider is responsible for payment of the Guest Fee to Activiter. Please note that Activiter does not currently charge fees for the creation of listings. However, you acknowledge and agree that Activiter reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of listings. Please note that Activiter will provide notice of any listing fee collection via the Service, prior to implementing such a fee.
Activiter will also use its commercially reasonable efforts to address Providers’ requests and claims related to security deposits, but Activiter is not responsible for administering or accepting any claims by Providers related to security deposits, and disclaims any and all liability in this regard.
Remittals: Activiter will remit the collected fees, less those amounts that may be retained by Activiter. Activiter may direct the payment processor, in Activiter’s sole but reasonable discretion, to withhold part or all of the payment for a period of up to ninety (90) days after the date the product or services are rendered to the Guest by Provider in order to satisfy any requests to return any security deposits, cancellation requests or other refunds. All Provider fees retained by Activiter will be held in a non-interest bearing account by Activiter’s third-party payment processor. In the event of any refund, cancellation, reversal, chargeback, error or other need to return any amount of the Total Fee to the Guest, you expressly authorize Activiter and its third-party payment processor to without any further notice or consent to (a) use funds currently held by the third-party payment processor to satisfy the obligation, (b) reverse part or all of any previously applied transfers from the third-party payment processor to Provider’s financial institution, or (c) to apply a debit against and transfer the necessary amounts directly from Provider’s financial institution.
Unless otherwise agreed to in writing by Activiter, all payments to Providers will be in US dollars. Provider is responsible for any conversion, including any service or other charges, into a currency other than US dollars. If Activiter converts any payment into a foreign currency, it may deduct any processing expenses.
Payment Agent: Each Provider hereby appoints Activiter as the Provider’s agent solely for the purpose of collecting payments made by Guests or Booking Agents on behalf of the Provider. Each Provider agrees that payment made by a Guest to Activiter shall be considered the same as a payment made directly to the Provider and the Provider will make the product and service available to Guest in the agreed upon manner as if the Provider has received the fees directly. Each Provider agrees that, Activiter may, in accordance with the Provider’s cancellation policy as reflected in the relevant Listing, refund to the Guest that portion of the Product and Service Fees as specified or if in Activiter’s sole but reasonable discretion Activiter determines that the Provider had not adhered to this Agreement. In accepting appointment as the limited authorized agent of the Provider, Activiter assumes no liability for any acts or omissions of the Provider. Provider agrees to reimburse Activiter for any dispute or other related fees applied by Activiter’s third-party payment processor and that said fees may be debited directly from Provider’s account held by the payment processor.
Taxes: IRS regulation, regarding federal tax reporting requirements, stipulates that Activiter or its payment process must collect IRS Form W-9 information from all Providers in the United States. If applicable and if required by applicable IRS regulations, Activiter’s payment processor will issue any required 1099s to Provider. You understand and agree that you are solely responsible for determining your applicable tax reporting requirements in consultation with your tax advisors. Activiter cannot and does not offer tax-related advice. Additionally, please note that each Provider is 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 applicable listings. Where applicable, or based upon request from a Provider, Activiter may issue a valid VAT invoice to such Provider. “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.
27. Website Development. From time to time Activiter may create websites, customer relationship management tools and other online features for use by Provider and Booking Agent (the “Online Assets”). Provider and Booking Agent acknowledge and agree that the Online Assets are the sole property of Activiter and, notwithstanding the Co.lusion of Provider’s marks, are not a “work made for hire” under the Copyright Act or any other law. To the extent that the foregoing does not apply, Provider and Booking Agent each assign to Activiter, and its successors and assigns, for no additional consideration, Provider’s and Booking Agent’s entire right, title and interest in and to the Online Assets and any intellectual property rights contained therein. Nothing contained in this Agreement shall be construed to reduce or limit Activiter’s right, title or interest in the Online Assets. Further, Provider and Booking Agent agree to stop using and return to Activiter the Online Assets at Activiter’s request or upon the termination or expiration of this Agreement.
28. Supplier Payments. Provider may use Activiter to initiate ACH payments from Provider’s designated bank account to a designated supplier or vendor of goods or services (“Supplier”). By using Activiter in this way Provider agrees to the Supplier Payment Terms and Conditions, available here and which are incorporated and made part of this Agreement.
WE RESERVE ANY RIGHTS NOT EXPRESSLY GRANTED OR STATED IN THIS AGREEMENT.
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