FISHTUWATUWA.COM COMMERCIAL PROVIDER AGREEMENT
This FishTuwaTuwa.com Provider Agreement (this "Provider Agreement"), is a legal agreement between TuwaTuwa, Inc. (FishTuwaTuwa.com) and you as a Commercial Provider (as defined below).
Please read this Provider Agreement before enrolling in or accessing or using the Services as a Commercial Provider. By enrolling in or accessing or using the Services as a Commercial Provider, you hereby represent, warrant, understand, agree to and accept all terms and conditions contained herein. If you object to anything in this Provider Agreement, do not use the Services. The terms and conditions of this Provider Agreement are subject to change by FishTuwaTuwa.com at any time, effective upon posting on the Service, and your participation in or access or use of the Services after such posting will constitute acceptance by you of such changes.
Any capitalized terms not defined in this Provider Agreement shall have the meaning given to them in the Terms. If any conflict arises between this Provider Agreement and the Terms, the Provider Terms shall govern.
As part of the Services, FishTuwaTuwa.com maintains certain information from individuals and corporate entities providing fishing guide, charter captain, outfitter, and or lodge services ("Commercial Providers", "you", "your") and presents such information to users ("Users") of the Site, as appropriate in its sole discretion, which may include in search results and other information that relates to certain Commercial Providers.
1. Enrolling as a Commercial Provider and Listing
Enrolling. You can enroll as a Commercial Provider by creating an online profile on the Site or by giving us your consent to do so on your behalf.
The Listing. By enrolling as a Commercial Provider, you authorize FishTuwaTuwa.com to publish certain information, content, materials, images, sounds, videos, communications and data about you, your products and/or services posted, submitted, published, displayed, uploaded or transmitted by you on or in connection with the Services ("Content"), including but not limited to content posted in the form of a listing ("Listing"). FishTuwaTuwa.com reserves the right to refuse any request for a Listing or to cancel any Listing for any reason, including but not limited to the failure to fulfill the obligations set forth in this Provider Agreement, or for no reason. You hereby grant, and you represent and warrant that you have the right to grant, to FishTuwaTuwa.com and its officers, directors, shareholders, employees, subsidiaries, other affiliates, successors, assignees, agents, representatives, advertisers, marketing partners, licensors, independent contractors, recruiters, corporate partners or resellers ("Affiliates"), during the term of this Provider Agreement, an irrevocable, perpetual, non-exclusive, fully paid, royalty-free, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such Content and to prepare derivative works of, or incorporate into other works, such Content, and to grant and authorize sublicenses of the foregoing (i) on the Site or otherwise in connection with the Services, including for the purpose of identifying you and describing your products and/or services to Users, (ii) to promote and market the Services and your participation therein, and (iii) for any other purposes otherwise expressly approved in advance, in writing, by you. You represent and warrant that public posting and use of Content by FishTuwaTuwa.com will not infringe or violate the rights of any third party.
Listing Content. The Listing will contain information you provide to FishTuwaTuwa.com. You agree to provide true, accurate, current and complete information about your business and your products/services. Failure to provide information in such manner may result in FishTuwaTuwa.com suspending or terminating your Listing. The Listing will appear in the service category areas of the Site selected in the enrollment process, and will be in a style and format consistent with other similar Listings in those areas. FishTuwaTuwa.com reserves the right to change the style, form, content and appearance of the Site and/or Services at any time. You agree to maintain the accuracy of information contained in your Listing. If any information included in your Listing is or becomes inaccurate, you will promptly update your Listing and notify FishTuwaTuwa.com. The Listing and any changes thereto are subject to approval by FishTuwaTuwa.com. Certain changes that you make to your Listing may require review by FishTuwaTuwa.com prior to posting, which review will be performed within five (5) business days of submission. If such changes are approved, they will be promptly reflected in your Listing. If they are declined, FishTuwaTuwa.com will notify you as to the reason for the rejection and provide you an opportunity to revise and re-submit them.
Unless you opted out during the enrollment process, you have agreed for FishTuwaTuwa.com to act as your agent and to accept bookings from Users ("Bookings") on your behalf, subject to your acceptance of those bookings on their requested dates or modification of those bookings to alternate dates agreed upon between you and the User. By using FishTuwaTuwa.com as your booking agent, you also agree to the terms of the FishTuwaTuwa.com Booking Agreement, which are incorporated herein.
3.1 Responsibilities to us and Users.
You agree to adhere to the following requirements in your access and use of the Site and Services and in all of your dealings, interactions and transactions with Users and third parties relating to or in any way connected to the Site and/or Services:
3.2 Transactions with Users.
- You will honestly and accurately represent your products and services to Users.
- You will accurately portray your accreditations and certifications, if any.
- You will interact with Users in a polite, professional manner.
- You will perform all of your obligations hereunder and owed to any third party, including any User, in accordance with industry standards and in compliance with all applicable laws and regulations.
- You will respond to Bookings within 24 hours.
- You will not communicate to Users other than through FishTuwaTuwa.com
We provide a platform to allow Users to seek the services of Commercial Providers, but we are not a party to any transaction between any User and any Commercial Provider. We have no control over Users and cannot ensure that any User will actually complete a transaction. All Bookings are solely between the User and the Commercial Provider; FishTuwaTuwa.com is not a party to any such agreement. If you have a dispute with any User or other third party resulting from or arising out of or in connection with your use of the Services, you release FishTuwaTuwa.com and its Affiliates from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
4. Use of Marks
4.1 Commercial Provider Marks.
You hereby grant to FishTuwaTuwa.com and its Affiliates an irrevocable, perpetual, non-exclusive, fully paid, worldwide right and license during the term of this relationship, subject to the terms and conditions hereof, to use, copy, display, reproduce and distribute your logo(s), tradename(s) or trademark(s) (the "Marks") and those of your affiliates, (i) on the Site or otherwise in connection with the Services, including for the purpose of identifying you and describing your products and/or services to Users, (ii) to promote and market the Services and Your participation therein, and (iii) for any other purposes otherwise expressly approved in advance, in writing, by you. You further represent and warrant that FishTuwaTuwa.com's use of your Marks in accordance with these terms will not infringe or violate the rights of any third party. All Marks shall be deemed Content for the purposes of this Provider Agreement.
Neither party may represent or imply to a User or other third party that it is acting on behalf of the other party hereto or that the other party hereto has approved of or endorsed its products or services. All goodwill associated with use of a party's trademarks by the other party shall inure to the benefit of the party that owns the trademarks.
5. Term and Termination
FishTuwaTuwa.com reserves the right to terminate this Provider Agreement at any time for any reason or no reason upon two (2) business days' notice. In the event of such termination, any payments due and payable under this Provider Agreement will be made within thirty (30) days of the effective date of such termination. FishTuwaTuwa.com reserves the right to terminate this Provider Agreement immediately upon notice in the event the Commercial Provider should commit or otherwise become associated with, for any reason, any act that would reasonably be expected to have an adverse impact on the reputation or public image of FishTuwaTuwa.com. FishTuwaTuwa.com reserves the right to send a notice of such termination to Users with whom FishTuwaTuwa.com has reason to believe you have corresponded.
By agreeing to the terms of this Provider Agreement, You agree to indemnify, defend and hold harmless FishTuwaTuwa.com and its affiliates, officers, directors, employees, stockholders, representatives and agents from and against any and all claims, losses, expenses or demands of liability, including attorneys' fees and costs incurred by them in connection with any claim by a third party (including an intellectual property claim) arising out of: (i) any breach by you of your obligations under this Provider Agreement, (ii) any willful misconduct or negligent act, omission or misrepresentation by You, Your agents or Your employees, (iii) any violation by you of any federal, state or local law, rule or regulation, (iv) any disputes between you and any User or other third party, or (v) the violation or alleged violation of third-party intellectual property rights or proprietary rights by you or any Listing or other materials and content you submit, post or transmit through the Site or otherwise provide to FishTuwaTuwa.com for inclusion on the Site or use in connection with the Services. You may not settle any claim subject to indemnification without the prior written consent of FishTuwaTuwa.com. In addition, FishTuwaTuwa.com may, at its sole expense, participate in the defense and settlement of the claim.
7. Warranties; Disclaimers
Warranties. Each party represents and warrants to the other party that (i) this Provider Agreement constitutes a valid and binding obligation of such party, enforceable in accordance with its terms; (ii) such party has full power and authority to enter into this Provider Agreement and perform its obligations hereunder; (iii) the making of and performance under this Provider Agreement by such party does not violate any agreement or obligation existing between such party and any third party; (iv) the making of and performance of this Provider Agreement does not infringe upon any third parties' rights and (v) each party shall, at all times, comply with all applicable federal, state and local laws, regulations and ordinances. You represent, warrant and covenant that: (i) all of the information provided to FishTuwaTuwa.com hereunder, including information submitted in connection with the Listing, is truthful and not misleading, fraudulent, defamatory, libelous, threatening, harassing, or obscene; (ii) you are authorized to provide the products and services set forth in the Listing; (iii) You have the right to use each copyright, trademark, trade name, service mark, graphic, photograph, or any other intellectual property in the way it is used under this Provider Agreement; and (iv) any advertising copy or materials and any linked advertising shall comply with all applicable laws and regulations.
DISCLAIMERS. OTHER THAN SET FORTH HEREIN, FISHTUWATUWA.COM MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE FISHTUWATUWA.COM SITE, ANY PRODUCTS, SERVICES OR INFORMATION PROVIDED THROUGH THE FISHTUWATUWA.COM SITE, OR THE ACCURACY OF, OR RESULTS TO BE OBTAINED BY USING, THE FISHTUWATUWA.COM SITE. FishTuwaTuwa.com is not involved in any actual transactions between Users and You. Thus, FishTuwaTuwa.com has no control over the interest or ability of Users to purchase items or pay for services or the suitability of any User for Your products or services. FishTuwaTuwa.com cannot and does not control whether or not Users will complete the purchase of products or services for which they have requested information. Because user authentication on the Internet is difficult, FishTuwaTuwa.com cannot and does not guarantee that each User is who he or she professes or claims to be. You assume all risk when using the Site, including but not limited to all of the risks associated with any online or offline interactions with Users of the Site, and FishTuwaTuwa.com disclaims any liability arising out of or in any way connected with such interactions.
8. Ratings and Reviews
Ratings and reviews posted on the Site are the opinions of their respective authors. Such authors are solely responsible for such content. FishTuwaTuwa.com does not adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Site or through the Service. Under no circumstances will FishTuwaTuwa.com or its affiliates be responsible for any loss or damage resulting from reviews or comments made about you on the Site by other Users.
You understand and agree that FishTuwaTuwa.com may but is not obligated to review and delete any Content, in each case in whole or in part, that in the sole judgment of FishTuwaTuwa.com violates this Provider Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users of the Site. We reserve the right to remove, screen, edit, or reinstate ratings and reviews from time to time at our sole discretion and without notice to you. You may encourage others to write reviews about your business. However, you agree not to, and will not assist or enable others to write a fraudulent or defamatory review, trade reviews with other businesses, compensate anyone to write a review on your behalf, or write a review that you were paid for either directly or indirectly by the business being reviewed. You do have the right to rebut a review by posting a response to a current review of your business.
9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FISHTUWATUWA.COM AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (II) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (III) ANY CONTENT OBTAINED FROM THE SERVICES; OR (IV) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
IF, FOR ANY REASON, A COURT FINDS FISHTUWATUWA.COM OR ITS AFFILIATES LIABLE FOR DAMAGES NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FISHTUWATUWA.COM AND ITS AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICES EXCEED ONE HUNDRED U.S. DOLLARS (U.S. $100.00) .
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), CONSUMER PROTECTION LAW, OR OTHERWISE, AND WHETHER OR NOT FISHTUWATUWA.COM AND/OR ITS AFFILIATES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF THIS SUBSECTION ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FISHTUWATUWA.COM AND YOU.
Unless otherwise specified herein, in the enrollment process or on our Site, any notice by one party hereto to the other shall be in writing (which may include email) and either personally delivered, delivered by Internet email, or sent via reputable overnight courier or certified mail, postage prepaid and return receipt requested. Notices will be sent to you at the Internet email address or the mailing address specified in your account profile and to us at FishTuwaTuwa.com, Inc., c/o Latham and Watkins, John Hancock Tower, 27th Floor, 200 Clarendon Street, Boston, Massachusetts 02116. All paper notices will be deemed effective on the date of personal delivery, upon signed receipt from an overnight courier, or five days after deposit with the U.S. Postal Service, as applicable. All email notices will be deemed effective when sent by us to the email address specified in your account, whether actually received or not, and all notices on our Site will be deemed effective upon posting on our Site, whether or not reviewed by you.
For the avoidance of doubt, Sections 8 through 14 of the Terms shall apply to this Provider Agreement with equal force.
A delay by either you or FishTuwaTuwa.com in the performance of your or FishTuwaTuwa.com's obligations, as applicable, under this Agreement will not be deemed to be a default of this Agreement to the extent that the delay is attributable for a Force Majeure Event and could not have been prevented by the non-performing party taking reasonable precautions. "Force Majeure Event" means an act of war or terrorism, a riot, civil disorder, or rebellion, a fire, flood, earthquake, or similar act of God that is beyond the reasonable control of the affected party.