ResortCompete.com
Terms and Conditions for Seller Membership
(Should Be Read BEFORE Signing Seller Membership Agreement)
May 27, 2008
These additional Terms and Conditions are incorporated in and form a part of the Agreement signed by the Seller and ResortCompete, L.L.C. (“ResortCompete”). The Agreement signed by the Seller and the Terms and Conditions can be modified at any time by ResortCompete in accordance with the Agreement. The Agreement between ResortCompete and the Seller includes, collectively, the Agreement signed by the Seller, these Terms and Conditions, and the Credit Card Authorization Form.
1. Account; Assumption of ResortCompete as Lead Source. ResortCompete creates an Account for each Seller who becomes a member of the ResortCompete Service. The Account will allow Seller personnel to log in, view, and respond to requests for price quotes on travel from Users of the Service.
Unless it can be otherwise demonstrated by Seller, it will be assumed that any travel bookings made by a User within twelve (12) months of receiving a quote from Seller on the Service is a result of that quote.
Multiple rooms, resort stays or other travel that are booked within twelve (12) months from the date of the last quote the Seller has provided to the User shall be included in the calculation of the Revenue Share, even if the User books a different resort or resorts than were quoted through the Service or if rooms are sold for friends or associates traveling with the User.
2. Account Statements. ResortCompete will provide reports in Seller’s Account showing pending and completed travel booked along with Revenue Shares organized by month, so Seller can see the basis for previous charges as well as pending charges for future. Additional information will be accessible on each booking entered Seller record-keeping purposes, including a User Quote Request Number (if entered by Seller), resort booked, dates of travel, etc. This electronic data will take the place of printed invoices, which ResortCompete will not provide.
3. Password. Seller may change passwords to control access to the Account. ResortCompete recommends that Seller routinely change passwords to reduce the risk of unauthorized access to the Account. Seller assumes the risk of harm from unauthorized access to the Account, and Seller is solely responsible for changing Seller’s passwords with such frequency as Seller considers appropriate.
4. Information Conveyed to Seller About Quote Request. ResortCompete will provide Seller the following information related to each quote request from a User:
- The information related to the specific request submitted by the User (i.e., resort, travel dates, room types, number of rooms, travel dates, etc.);
- Date and time of the User's request (all times U.S. Central Time);
- The number of quotes submitted from other agencies (as of the last time Seller refreshed the web page).
ResortCompete makes no representation or warranty to Seller regarding, and ResortCompete is not responsible for, the accuracy or reliability of the information provided by the User to the Service.
5. Response to Quote Requests. To respond to a specific quote request, Seller must enter the price it is willing to quote to the User for the specified trip and submit the quote to the User. Quotes must include total Resort cost for requested number of travelers including all incidental charges. The User, and not ResortCompete, shall be responsible for all communications with Seller to book the Resort quoted by Seller. The User, and not ResortCompete, shall be responsible for payment of all amounts due Seller or the Resort provider for the Resort quoted by Seller, and ResortCompete shall have no liability whatsoever to Seller or the Resort provider for such amounts.
6. Responsibility to Honor Quotes Given. It is in the best interests of all parties that Users be able to rely on Seller’s quote information and have a positive experience with the Service and Seller. While all quotes submitted by Seller will be considered to be subject to availability, Seller is solely responsible to insure that prices quoted are accurate and available when quoted, and Seller shall indemnify and hold ResortCompete harmless (including ResortCompete’s reasonable attorney fees) from any claim made against ResortCompete by any person or entity relating in any way to the information provided by Seller to the User or Resort or relating in any way to any act or omission of Seller with respect to travel arrangements made by Seller for or on behalf of User.
7. Booking Cancellations/Modifications. Seller may modify or delete any booking Seller enters on the Service prior to 15th of the month following the date travel is completed for each booking. Should a booking be cancelled or the cost for the booking be decreased, Seller shall be solely responsible for deleting or modifying the booking, as the case may be, on the Service prior to the dates as above, or the Revenue Share will be charged in full and not refunded. Notwithstanding the foregoing, Seller shall in all events remain responsible for any amounts underreported to ResortCompete. If an Seller was not aware of cancellations or changes before the 15th of the month following the completion of travel, ResortCompete may, in its sole discretion, choose to apply a credit to the Seller’s Account. If a booking is cancelled by anyone for any reason, but Seller receives a commission or other form of compensation for the booking due to insurance or other source of payment, then ResortCompete shall receive its Revenue Share for the booking, and Seller shall not delete the booking on the Service.
8. Seller's Responsibility to Record Bookings via ResortCompete. Seller is responsible for recording in Seller’s Account (by referencing the User Quote Request Number) all leads that come from ResortCompete, and recording any and all bookings Seller makes with respect to such leads as soon as a deposit is paid by the User. A properly recorded booking will automatically turn off the User’s quote request and prevent the User from obtaining new quotes from other agencies. Therefore, it is to Seller's advantage to report bookings to ResortCompete as soon as they occur. For any deposit that Seller receives on a Resort booking where Seller cannot positively identify a lead source, Seller agrees to enter the customer’s e-mail address into the “Look up” field in the Account to determine whether the Seller submitted a quote to the User within twelve (12) months prior to the booking, and if a quote was submitted within such time period, Seller shall report the booking in the Account. ResortCompete will help Seller keep track of bookings by displaying the User Quote Request Numbers issued to Users, and by informing Users that they must refer to their quote request by the Quote Request Number when contacting agencies in order to obtain the quoted price from Seller, but the sole responsibility for reporting all bookings remains with the Seller.
9. Reporting Accuracy. ResortCompete will rate the accuracy of Seller’s recordkeeping and reporting under Paragraph 8 of the Terms and Conditions by calculating a percentage based upon (a) the bookings reported by the Seller to ResortCompete that have not been first reported to ResortCompete by a User or other means, in relation to (b) the total number of bookings of Seller through leads of Users of the Service. If Seller’s percentage of reporting accuracy is less than the average reporting accuracy for all agencies using the Service, then ResortCompete may, (i) increase the Revenue Share of Seller in such amount determined by ResortCompete in its sole discretion, upon thirty (30) days’ written notice pursuant to Paragraph 3 of the Agreement signed by the Seller regardless of whether six months have elapsed from the date of this Agreement, (ii) suspend Seller’s Account for such time as determined by ResortCompete, in its sole discretion, or (iii) declare an Event of Default under Paragraph 14 of the Terms and Conditions. Notwithstanding any action taken by ResortCompete in accordance with this Paragraph 9, ResortCompete shall be entitled to receive the penalty Revenue Share, if applicable, pursuant to Paragraph 11 of the Terms and Conditions for unreported or under-reported bookings by Seller.
10. Audit Provision. Each calendar quarter,ResortCompete may request by e-mail or other means, and Seller must supply official Resort and or airline documentation, on up to five (5) bookings that Seller has made within the past twelve months as a result of Users’ requests for quotes provided by the Service. This documentation shall include all information about all rooms/packages related to the requested booking including the data necessary to establish the gross commissionable Resort fare. All documentation must be supplied to ResortCompete within fourteen (14) days of the date of ResortCompete’s request.
If Seller refuses to provide such documentation or fails to respond to ResortCompete’s request within such fourteen (14) day period, then in addition to ResortCompete’s other remedies for default under the Agreement, ResortCompete may assess a penalty Revenue Share of an additional 10% of the total cost of all bookings made by Seller using quote requests through the Service for the prior twelve (12) month period and for all future bookings by the Seller through the Service until further notice by ResortCompete. If Seller’s failure to provide the requested documentation for a booking is due to a bona fide reason not the result of any fault on the part of Seller (for example, the bankruptcy of a Resort or a host Seller), then the penalty described in the immediately preceding sentence will not be applied and the total costs reported by the Seller will be assumed to be correct unless a different amount is established through other means. For each booking where documentation is not available for a demonstrated bona fide reason not the result of any fault on the part of Seller, ResortCompete may request and Seller must supply official resort documentation on a replacement booking.
For each booking where the total cost is found to be under-reported by five percent (5%) or more, ResortCompete may request and Seller must supply official Resort line documentation on up to five (5) additional bookings that Seller has made within the past twelve months as a result of Users’ requests for quotes provided by the Service, subject to the same terms above.
11. Penalties for Failing to Report Bookings or Underreported Bookings. ResortCompete will communicate with Users in a number of ways to inquire if they have booked Resorts through use of the Service provided by ResortCompete. If ResortCompete discovers a booking has been made by Seller, and this booking was not reported to ResortCompete by Seller by the fifteenth of the month following completion of travel, then Seller agrees that the Revenue Share payable to ResortCompete shall be twenty-five percent (25%) of the total travel cost that booking. If Seller reports a booking that underreports the actual Gross Commissionable Amount for that booking and Seller does not correct the information by the fifteenth of the month following the completion of travel for that booking, Seller agrees to pay ResortCompete an additional Revenue Share equal to fifteen percent (15%) of the difference between the actual amount and the under-reported amount for that Resort. Provided, however, these penalties do not apply to non-reported bookings or under-reports that Seller discovers and brings to ResortCompete’s attention prior to booking data being requested in an audit under Paragraph 10 of the Terms and Conditions. This provision shall survive the termination of the Agreement.
12. Credit Card Declination Fee. Should Seller's credit card be declined for any reason for any amount due ResortCompete, Seller will be assessed a $75 fee. ResortCompete will make a good faith effort to contact Seller regarding the credit card declination. Seller may either correct the problem with the credit card supplied or provide a different, valid credit card. If the charge cannot be processed by ResortCompete within thirty (30) days of the date of declination or another payment arrangement is not made to ResortCompete's satisfaction within such time, then Seller will be in default under the Agreement.
13. Change in Membership Fees; Additional Charges. After the first six months of the Agreement have passed, ResortCompete may institute other fees or charges and/or increase membership fees on thirty (30) days notice to Seller. If ResortCompete has issued a notice to institute other fees or charges or increase the membership fee, Seller may terminate the Agreement by providing written notice of termination to ResortCompete on or before 30 days after the date of ResortCompete’s notice to Seller.
14. Default. The following shall be "Events of Default" by Seller under the Agreement, and the term "Event of Default" shall mean, whenever it is used in the Agreement, any one or more of the following events: (a) Seller’s failure to observe or perform any covenant, condition, obligation or agreement under the Agreement; (b) Seller’s failure to pay any amount when due under the Agreement; (c) Seller engaging in conduct detrimental to the overall operation or reputation of the ResortCompete or the Service, as determined by ResortCompete in its sole discretion, including but not limited to Seller’s deliberate failure to honor prices quoted to Users or engaging in conduct resulting in material complaints by User’s; or (d) ResortCompete’s declaration of default in accordance with other terms of the Agreement.
15. Remedies on Seller’s Default. Whenever an Event of Default by Seller shall occur, ResortCompete may take any one or more of the following actions: a) Declare all Revenue Shares on all bookings Seller has entered on its Account with the Service immediately due and payable, regardless of whether the booking or Resort is later cancelled; b) Deactivation of Seller's Account by ResortCompete; (c) Termination of the Agreement; and (d) Commencement of legal or equitable proceedings to enforce ResortCompete’s rights under the Agreement. ResortCompete may collect its attorneys fees and all other costs and expenses incurred by ResortCompete to recover amounts due ResortCompete under the Agreement or to enforce its rights under the Agreement.
Notwithstanding the deactivation of Seller’s Account or termination of the Agreement by ResortCompete, Seller shall remain responsible for reporting (via e-mail or fax) any new bookings and changes to existing bookings by the fifteenth of the month following the completion of travel and immediately pay the Revenue Share with respect thereto, regardless of whether the booking is later cancelled. Seller’s obligations under Paragraphs 2 through 5 and 7 of the Agreement signed by Seller and Paragraphs 7 through 12, 15, and 19 through 26 of the Terms and Conditions are continuing and shall survive the termination of the Agreement.
16. Right to Independent Auditor. Seller has the right, at its sole expense, to hire an independent professional auditing organization (“Auditor”) to review ResortCompete's computer and financial records for the sole purpose of determining the accuracy of charges to Seller. Auditor must agree in writing, to ResortCompete’s satisfaction, to maintain the confidentiality of, and not to reveal, any information to Seller or any third party about ResortCompete's business other than its assessment of the accuracy of the charges to Seller as defined in the Agreement. ResortCompete agrees to provide reasonable access to the Auditor, but Auditor shall not interfere with ResortCompete’s business operations in conducting such audit. Seller agrees that it will have no claim to legally challenge fees charged by ResortCompete without an Auditor's report showing errors on ResortCompete's part.
17. Notification. E-mail communication from ResortCompete to Seller’s Official Notice E-mail Address shall serve as formal notification to Seller under the Agreement. It shall be the responsibility of Seller to notify ResortCompete in writing of any changes to Seller’s Official Notice E-mail Address.
18. Independent Contractors. The parties are and shall remain independent contractors with respect to all matters pursuant to the Agreement. No partnership, joint venture, affiliate, Seller or similar relationship is established by the Agreement, and neither party has actual or apparent authority to bind the other. Any representation to the contrary shall be deemed a material breach of this contract.
19. Indemnification. Seller agrees to protect, defend, indemnify and hold ResortCompete, its officers, owners, managers, employees, agents, successors and assigns, harmless from and against any and all claims, demands, actions, damages, liabilities, judgments, costs, and expenses (including ResortCompete’s reasonable attorney fees) of any kind whatsoever arising from, or relating in any way to, Seller’s business operations or Seller’s use of the Service or any act or omission by Seller with respect thereto.
20. Trademarks and Intellectual Property. Seller hereby grants ResortCompete a limited license to use Seller's name to promote the Service on the ResortCompete website or in other promotions and media. Should Seller object to any specific use of its name, ResortCompete will discontinue this use as soon as reasonably possible.
All content included or available on the website, including site design, logos, text, graphics, interfaces, navigation, general concept, and the selection and arrangements thereof is ©2008 ResortCompete, with all rights reserved, or is the property of ResortCompete protected by intellectual property rights. Any use of content or materials on the website, including reproduction for purposes other than those required by the Agreement, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of ResortCompete is strictly prohibited. “ResortCompete” is a registered trademark of ResortCompete. Use of ResortCompete trademarks without the prior written consent of ResortCompete is prohibited.
21. Disclaimer of Warranties. THE SERVICE AND WEBSITE IS PROVIDED BY RESORTCOMPETE ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, RESORTCOMPETE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE USE OR RESULTS OF THE SERVICE OR WEB-SITE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. RESORTCOMPETE SHALL HAVE NO LIABILITY FOR ANY INTERRUPTIONS IN THE USE OR AVAILABILITY OF THE SERVICE OR WEBSITE. RESORTCOMPETE DISCLAIMS ALL WARRANTIES WITH REGARD TO THE INFORMATION PROVIDED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITATION ON THE FOREGOING: (1) RESORTCOMPETE MAKES NO REPRESENTATION OR WARRANTY THAT THE WEB-SITE OR SERVICE WILL OPERATE WITHOUT ERROR OR THAT THE WEB-SITE AND ITS SERVER ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL AGENTS. SELLER AGREES THAT RESORTCOMPETE WILL NOT BE RESPONSIBLE FOR REPLACING ANY EQUIPMENT OR DATA AS A RESULT OF SELLER’S USE OF THE SERVICE OR WEBSITE. (2) RESORTCOMPETE MAKES NO REPRESENTATION OR WARRANTY REGARDING THE SECURITY OF THE SERVICE AND WEB-SITE WITH RESPECT TO UNAUTHORIZED ACCESS TO SELLER’S ACCOUNT. (3) RESORTCOMPETE MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY OF THE SERVICE AND WEB-SITE. (4) RESORTCOMPETE MAKES NO REPRESENTATION OR WARRANTY REGARDING THE TRUTHFULNESS, ACCURACY, COMPLETENESS OR RELIABILITY OF ANY INFORMATION PROVIDED BY USERS. (5) RESORTCOMPETE MAKES NO REPRESENTATION OR WARRANTY REGARDING THE NUMBER OF REQUESTS FOR QUOTES TO BE SUBMITTED BY USERS, OR THE NUMBER OF BOOKINGS SELLER WILL BE ABLE TO OBTAIN THOUGH PARTICIPATING IN THE SERVICE, (6) RESORTCOMPETE MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AUTHENTICITY OR AUTHORITY OF ANY USER, OR THE ABILITY OF ANY USER TO PERFORM OR SATISFY ANY FINANCIAL OR OTHER OBLIGATION TO SELLER OR OTHER THIRD PARTIES.
22. Limitation of ResortCompete’s Liability. RESORTCOMPETE SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, AND IN PARTICULAR, RESORTCOMPETE SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THE USE OF THIS SERVICE OR THE WEB-SITE OR THE INFORMATION CONTAINED IN THEM, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF RESORTCOMPETE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
23. Confidentiality. During the term of the Agreement and indefinitely after the term of the Agreement has expired or the Agreement has been otherwise terminated, each party will only use the other party's information for purposes set forth in the Agreement and only to the extent necessary for such purpose and, except as required by legal process (written notice of which shall first be given to the other party prior to any disclosure) and except for such information that is in the public domain, each party will not disclose the other party's information acquired through the Service to any person other than the party’s agents or employees having a need to know, without the prior written approval of the other party. Notwithstanding the foregoing, ResortCompete may disclose, through this Service, Seller’s quotes to Users.
24. Venue & Governing Law. The Service and the website are operated in the State of Iowa. The Agreement shall be governed by and interpreted according to the laws of the State of Iowa, without regard to its conflict of laws provisions. Both parties submit to the exclusive jurisdiction of the State and Federal Courts located in Polk County, Iowa for any action or proceeding relating to the Agreement brought by either party, and each party expressly waives any objection it may have to such jurisdiction or the convenience of such forum.
25. No Implied Waiver. ResortCompete’s waiver of any term, condition or provision of the Agreement shall not be construed as a waiver of any rights and remedies afforded to ResortCompete under law or the Agreement. ResortCompete’s waiver of any default or breach by Seller hereunder shall not constitute a waiver of any other default or breach by Seller whether similar or otherwise.
26. Modification. ResortCompete has the right, at any time, to modify and amend the Agreement, including the Terms and Conditions, without prior notice to Seller. Such modifications shall become effective immediately upon being e-mailed to the last e-mail address provided in by the Seller in the Seller account upon being posted at the www.Resortcompete.com website. Seller’s continued use of the Service after such modifications are posted shall constitute Seller’s acknowledgement and acceptance of the Agreement, including the Terms and Conditions as modified. Except as provided in this paragraph, the Agreement may not be amended.
