INDEPENDENT TRAVEL CONSULTANT AGREEMENT
THIS AGREEMENT (the “Agreement”) is hereby entered into as of _________________ by and between A.S.A.P. CRUISES, INCORPORATED, d/b/a OUTSIDEAGENTS, (“the Company”) located at 9125 Phillips Highway, Jacksonville, FL 32256 and
________________________________________________________________, an independent contractor (the “Agent”).
WHEREAS, IN CONSIDERATION of the promises and mutual covenants and agreements contained herein, the parties agree as follows:
- Services; Independent Contractor.
1.1 Services. The Company shall provide vendor contacts, resources, training, and support for Agent to sell cruises, tours, and vacation packages, including ancillary products related thereto, as more particularly described herein.
(a) Agent shall use the Company’s name, the specific credential required by the vendor as listed on such vendor’s supplier information page (available after logging into MyAgentGenie), and Agent’s name when booking travel for Agent’s clients. The Agent shall also use the Company’s Seller of Travel number (and all similar numbers) when required. All payments must be routed through the respective vendor and submitted to the Company as described herein. Note that the Company reserves the right to approve or disapprove all sales of cruise lines, tour operators, consolidators, etc. within forty-eight (48) hours of the Company’s receipt of the required reservation booking information.
(b) The Agent shall be responsible for making all Bookings for its clients directly with the travel vendors either electronically or telephonically. WHEN DEALING WITH VENDORS, THE AGENT MUST IDENTIFY ITSELF AS AN OUTSIDE AGENT OF THE COMPANY AND PROVIDE AGENT’S FIRST AND LAST NAME, THE NAME OF THE COMPANY (OUTSIDE AGENTS), AND TELEPHONE NUMBER OF THE COMPANY (904-739-2224) OR OTHER CREDENTIAL AS SUPPLIED ON THE SUPPLIER INFORMATION PAGE FOR THAT VENDOR TO THE VENDOR WHEN MAKING BOOKINGS, PAYMENTS, CHANGES, CANCELLATIONS, ETC.
(c) It is the responsibility of the Agent to make the reservations for its clients and immediately submit a reservation form electronically to the Company through MyAgentGenie within forty-eight (48) hours of the booking. It is also the Agent’s responsibility to ensure all required information regarding all bookings reaches the Company in a timely manner as described herein. The Company assumes no responsibility for the consequences of booking information submitted incorrectly or outside the timely manner described herein. The Company reserves the right to deduct Twenty-Five Dollars ($25) from the Net Commissions payable to an Agent on bookings not properly submitted to the Company within forty-eight (48) hours of booking to cover research costs incurred by the Company. In no event shall any bookings submitted after the date of travel or for which commission research is requested more than one (1) year from the travel date be commissionable to the Agent.
(d) Any changes that occur after the original reservation must be submitted electronically or telephonically to the vendor by the Agent and submitted to the Company using the electronic method described above via MyAgentGenie within forty-eight (48) hours of the change. Agent must also confirm all such changes with its clients. The Agent is responsible for assuring that the booking form is complete and accurate before a reservation is booked. The Agent shall keep a copy of each booking in order to check for accuracy. The Agent is responsible for confirming the client’s correct address for document delivery.
(e) Bookings and Notifications. The agent shall, within forty-eight (48) hours of applying a payment to any booking, the Agent will submit the booking information to the Company through the MyAgentGenie system. Following the Company’s receipt of each booking submitted by the Agent, the Company will make available to to Agent an electronic confirmation indicating pertinent information to such booking, i.e., travel date, ship/property, deposit received, balance due and date, document requirements, insurance information, client names, etc. as supplied by the Agent. Agent is fully responsible for the accuracy of said confirmations. The Agent must promptly forward these notifications to its clients. In addition, the Agent must forward the client version of the vendor’s confirmation to their client when such documents are available. It is the Agent’s sole responsibility to ensure that its clients receive these documents. The Agent should be aware of all travel that requires a United States passport and other documentation required for travel and should advise Agent’s clients of these requirements, including the estimated time to obtain a passport if the client does not have one.
1.2 Independent Contractor. The Parties hereto acknowledge and agree that Agent is an independent contractor, and Agent is solely responsible for its actions and inactions. There is no employer / employee relationship between the Company and Agent. Agent shall have the right to control and determine the method and means of providing services to its clients. The Company shall not have the right to control or determine such method or means. Agent may perform services for, or be an employee of, several businesses at one time. Except as otherwise set forth herein, Agent is responsible for obtaining its own materials, brochures, training, etc. The Company neither insures nor guarantees the work performed by Agent and is not liable nor responsible for any other irregularity or any consequences resulting therefrom.
1.3 Compliance with Laws. Agent is solely and expressly responsible for operating in accordance with all applicable federal, state and local laws, rules and regulations, including laws pertaining to the offering and sale of travel services. Any permits or licenses required for the Agent to conduct its business are the sole responsibility of Agent as are any expenses related thereto. Any Agent that engages in business in the State of Florida shall register for an exemption from registration as a travel agent using the Company’s Seller of Travel number and shall provide evidence of registration with the State of Florida to the Company within twenty (20) days following receipt of proof of filing from the State and on an annual basis thereafter.
1.4 No Exclusivity. The Company will occasionally market specific travel offers through its Agents, i.e., blocked group space cruises, preferred rates or commissions, etc. These offers will be marketed on a non-exclusive basis. More than one Agent may be appointed in the same marketing area at the discretion of the Company, however, the Company shall use its best efforts not to appoint more representatives than any given area can support.
1.5 Operations of Agent.
(a) Entity. The Company recommends but does not require, that Agent establish a separate limited liability company, corporation, partnership, or other similar entity to conduct its travel business. In the event that Agent elects to operate Agent’s business through an entity, Agent must provide evidence of its existence such as Articles of Organization, Articles of Incorporation, or a Certificate of Partnership. In addition, the principal owner or owners (anyone owning twenty-five percent (25%) or more of the entity) must personally guarantee the obligations of Agent under this Agreement by executing and delivering the Personal Guaranty attached hereto as Exhibit “A”.
(b) Subagents. Agent may hire, supervise and pay for assistants, employees, and other representatives (each a “Subagent”) deemed necessary or desirable by the Agent to conduct its business. Agent is jointly and severally responsible for all acts of its Subagents. Agent will also be responsible for paying all expenses attributable to such Subagents, including income taxes, unemployment insurance and Social Security taxes, and will maintain workers’ compensation insurance for such individuals as required by the applicable law where Agent resides or is domiciled.
(c) Performance of Services. Agent shall conduct its business at its own office, shop, rental space or home office within the discretion of the Agent and at its expense. The Agent shall be responsible for all telephones, fax numbers, computers and other office equipment deemed necessary by the Agent for its business. No work, however, may be performed by Agent at any of the Company’s sites unless a support fee is paid and the arrangement is pre-authorized by the Company in a separate agreement.
1.6 Identification of Consultant and Company. The Agent may operate under the Agent’s own name or under a separate company name and logo – but may not, without the express written consent of the Company, use the Company’s name for its own business. Any use by the Agent of the Company name, logo, forms, printed or electronic marketing materials, or other intellectual property of the Company must be approved in advance in writing by the Company. All advertisements and websites shall include a statement that the Agent is an “Independent Agent of FST No. ST15578 and CST No. 2090937-50”. If you reside or are domiciled in the state of Florida, you must also file for an exemption in the state and add your T.I. number to the preceding statement to read “T.I. # (your T.I. number), independent agent for FST No. ST15578 and CST No. 2090937-50.”
1.7 Expenses. The Company is not responsible for any expenses whatsoever incurred by Agent including, but not limited to, advertising, postage, telephone calls, mileage, and entertainment expenses.
1.8 No Authority to Bind Company. Except as otherwise set forth herein, neither the Agent nor any of its Subagents has any authority, under any circumstances, to commit the Company to any binding obligations or contracts with clients or suppliers unless specifically and previously authorized to do so by the Company in writing. The Agent will make no representation to any client or supplier that he/she has authority to bind the Company.
1.9 Workers’ Compensation. The Company shall not obtain workers’ compensation insurance covering the Agent or Subagents. The Agent shall comply with the applicable workers’ compensation law concerning the Agent and Subagents.
1.10 Marketing. Agent shall, at all times, comply with any and all marketing requirements of the Company’s vendors including, but not limited to, use of such vendor’s logos, advertising channels and venues, placement, copy, offers, and promotions. From time to time, vendors may offer co-operative marketing support in the form of collateral, materials, and financial support. This support will be approved by the vendor based on collaboration with the Company. Under no circumstances shall this support be available to the Agent without the prior endorsement of the Company, such endorsement to be granted on a case-by-case basis. Additionally, under no circumstance shall said support be available after the termination of this Agreement with the Agent whether said termination is written or implied by cause.
1.11 Vendor Relations. The Agent is free to book and work with any travel agency they choose including direct competitors of the Company’s Affiliates. However, the Agent agrees to give the Company thirty (30) days’ prior written notice of their intent to create a direct booking relationship with any vendor with which the Agent had little or no prior defined relationship prior to the execution of this Agreement. Failure to provide such notice may, at the Company’s sole discretion, result in the immediate termination of this Agreement upon written notice to Agent.
1.12 Company Group Space.
(a) Group Space. The Company may, from time to time, have group space or blocks of rooms available with certain Vendors that all Agents shall be able to book reservations into for such Agents’ customers.
(b)Add-On Charges. If the Agent books into the Company group space, the Agent may choose to add-on an additional charge to their customers. This additional charge will be treated as increased gross commission, to be split in the customary manner described below.
(c) Free Berths. The Agent may choose to retain one earned free berth in any group space for its own use or the free berth may be used as a credit to reduce the total charges of its customer group. If the Agent earns free berths, for any group space, that are not passed on to the client, or that the Agent does not retain for its personal use on the sailing for which the free berth was actually earned, the dollar value of the free berth will be treated as additional gross commission received by the Company, to be split in the customary manner as described in Section 3.
(d) Company Reserved Group Space. If the Agent wishes to book individuals into group space reserved by the Company, they must call or email the Company first to ensure availability still exists.
(e) Groups Organized by Contractor. For groups that the Agent organizes and sells themselves, it will be Agent’s responsibility to work with the vendor representative to block group space, arrange for group incentives, and request that contracts be sent to the Company. For all individuals booked into any group space, the Agent must obtain deposits on or before the option dates and apply them to the appropriate bookings with the vendor telephonically or electronically in such manner as to satisfy the vendor’s requirements.
1.15 Errors & Omissions Insurance. The Company shall extend coverage to Agent under the Company’s Errors & Omissions insurance policy (“E&O Insurance”) to the extent that Agent is selling travel services on behalf of the Company. Any actions of Agent that are not part of such services shall not fall under the E&O Insurance. The Company shall also, at Agent’s option, extend the E&O Insurance to each Subagent; provided, however, that Agent shall pay a monthly fee for each Subagent as set forth in Section 2.5.
- Client Payments.
2.1 Methods of Payment. Except as otherwise set forth herein, Agent’s clients must make all payments and deposits via such client’s debit or credit card. Payments made by credit card can be called in directly to the vendor by the Agent, inputted directly through the vendor’s website, or through MyAgentGenie. The Agent shall not and is not authorized to accept a cash payment or any monetary instrument made payable to the Agent without the express prior written consent of the Company. In the event that the Company authorizes a payment to be made by check, money order, cashier’s check, or otherwise, such instrument must be made out payable to “Cruises and Tours Unlimited” and shall not be sent directly to any vendor. The Agent shall inform its clients that these charges may appear on their credit card or bank statement as “Cruises and Tours Unlimited” or “OutsideAgents.com” or as a specific vendor or merchant.
2.2 Payment Problems. The Agent agrees that it shall be liable for all costs or damages incurred by the Company arising out of credit card and debit card charges made by or on behalf of a client in the event that such client’s payment via credit or debit card is declined or charged back, for any reason, including the unauthorized or fraudulent use of the credit card. Reimbursement by the Agent will be made within ten (10) days following Company’s notice to Agent of such declination or chargeback. In the event that a payment is disputed or revoked by a client of the Agent for any reason and the Company is held financially responsible by a vendor for the amount of said payment, the Agent agrees to reimburse the Company within ten (10) days for any monies paid to the vendor by the Company (or offset by the vendor against other monies owed to the Company) as a result of said dispute or revocation.
2.3 Deposits It is the Agent’s sole responsibility to process all deposits and subsequent payments and follow up with the client if necessary and to call-in those supplementary and final payments made by credit card. It is also the responsibility of the Agent to obtain and apply supplementary and final payments with the appropriate vendor in a timely manner and notify the Company of said payments within forty-eight (48) hours of application.
2.4 Collection of Monies. Should any litigation or other collection activity be necessary for collection of any money due to the Company under this Section of this Agreement, the Company is entitled to recover a reasonable sum for its costs and attorney’s fees, including collection costs, whether at trial, on appeal or in any bankruptcy proceeding, including any avoidance action brought under the federal bankruptcy code. In addition, the Agent shall pay a finance charge of 1.5% per month equal to an annual percentage rate of 18% on all sums or other amounts past due.
2.5 Fees and Charges. Agent shall select a package of services as set forth on Exhibit “B” attached hereto and be responsible for paying the fee associated with such package every thirty (30) days following the date of this Agreement. In addition, in the event that Agent desires to have its Subagents covered under the E&O Insurance, Agent shall pay an additional monthly fee of Twelve Dollars ($12) per Subagent on the same thirty (30) day cycle. The Company may update the fees and charges listed on Exhibit “B” at any time upon thirty (30) days’ prior written notice to Agent; Agent’s continued use of the services following such thirty (30) day period shall constitute Agent’s acceptance of the new fees and charges.
- Commissions and Fees.
3.1 Independent Sales. The Company shall pay Agent an amount equal to eighty percent (80%) of the Net Commission on each Booking the Agent makes without the involvement of the Company to complete the Booking.
(a) Net Commission. For purposes hereof, “Net Commission” shall be eighty percent (80%) of the gross commission received by the Company from the Vendor LESS any and all discounts, rebates, ship credits, upgrades or gifts (including but not limited to wine) given to Client by the Agent in connection with a Booking (the “Gross Commission”).
(b) Minimum Company Commission. Notwithstanding the foregoing, the Company reserves the right to retain a minimum of Twenty-Five Dollars ($25) for each commission received by the Company from the Vendor in connection with a Booking.
(c) Increased Commissions. If the Agent’s Gross Commissions total at least Ten Thousand Dollars ($10,000) (but not more than Forty Thousand Dollars ($40,000)) during a twelve (12) month rolling period, the Net Commissions for the month following such twelve (12) month period shall be ninety percent (90%) of the Gross Commissions. If the Agent’s Gross Commissions total at least Forty Thousand Dollars ($40,000) during a twelve (12) month rolling period, the Net Commissions for the month following such twelve (12) month period shall be ninety-five percent (95%) of the Gross Commissions.
(d) Bookings Completed by Company.In the event a booking is completed by the Company due to Agent not being available to do so and IF NO OTHER WORK IS REQUIRED of the Company by the client at the time of completing the booking (i.e., additional quotes, air deviation requests, pre/post package requests, etc.), Agent shall receive fifty percent (50%) of the Gross Commission earned by the Company from such booking. In these cases, Agent will service the client’s booking and handle any future requests, inquiries, etc. from the client concerning the booking and receive the normal commissions as indicated in the first paragraph above. IF OTHER WORK IS REQUIRED, the Company reserves the right to retain one hundred percent (100%) of the commission from such booking or bookings.
3.2 Payment of Commissions.
(a) Payment of Commissions. Net Commissions will be paid to the Agent on the Tuesday following the Company’s receipt of commission payment from suppliers or client after the client travels (excluding holidays, when Net Commissions shall instead be paid on Mondays). A detailed accounting of said payments shall be provided by the Company to the Agent via MyAgentGenie.
(b) Adjustments to Commissions. Net Commission will always be based on the Company’s actual commission received, which will include any discounts, rebates, ship credits, upgrades, or gifts given to clients. The Company shall have the right to deduct from commission payments due to the Agent any amounts owed for services, supplies, or commission adjustments provided by or through the Company to the Agent in the previous months.
(c) Overpayments to Agent. The Agent agrees to reimburse the Company for any overpayments on demand. The Company reserves the right to withhold future commission payments due to the Agent to satisfy any such commission adjustments.
3.3 Personal Bookings. The Agent shall be paid One Hundred Percent (100%) of the Gross Commission for the Agent’s own personal travel, less a processing fee of Twenty-Five Dollars ($25) per booking (the “Personal Rate”). The Agent shall be paid their standard Net Commission for all others traveling with the Agent, including family, friends, and co-workers. Agent must achieve and maintain a 3 to 1 ratio of actual client bookings to Agent’s bookings for Agent’s own personal travel in order to maintain the Personal Rate; otherwise, Agent shall receive NO Commission for Agent’s own personal travel. The Agent shall not, except as authorized by the Company prior to a booking, receive the Personal Rate on bookings for their own personal travel until achieving at least three (3) client bookings at the standard Net Commission rate.
3.4 Documentation. It shall be the responsibility of the Agent to document and collect any commissions not paid to the Company for which the Agent desires to be paid for any bookings made with preferred or non-preferred vendors.
3.5 Taxes. The Company shall not withhold or pay federal, state, or local income tax or payroll tax of any kind on behalf of the Agent or the employees of the Agent. The Agent shall not be treated as an employee with respect to the services performed hereunder for federal, state, or local tax purposes. The Agent shall deliver to the Company upon execution and delivery of this Agreement, an IRS Form W-9 disclosing the Agent’s tax identification number. The Agent understands that it is responsible for any and all of Agent’s income and employment taxes due and owing as a result of the commissions paid by the Company hereunder.
- Term and Termination.
4.1. Term. This Agreement shall commence on the date this Agreement has been accepted and signed by the Company and Agent and shall continue until terminated in accordance with Section 4.2 or 4.3 (the “Term”).
4.2. Termination Without Cause. The Term may be terminated, for any reason, by either party at any time upon ten (10) days’ prior written notice to the other party.
4.4 Effect of Termination.
(a) In the event of a termination without cause in accordance with Section 4.2, the Company will continue to pay commissions on all reservations previously booked as defined by the Commissions section of this Agreement.
(b) In the event of a termination for cause in accordance with Section 4.3, the Company shall not be required to make any further commission payments to Agent, regardless of when such commissions are received.
(c) Following termination of the Term for any reason, without the written consent of the Company, Agent will not and will not attempt to transfer pending or booked reservations to another agency or cancel or attempt to cancel any of said reservations or induce, encourage or solicit any client to rebook a pending or booked reservation at another agency.
(d) Following the termination of the Term, for any reason, all access to MyAgentGenie shall be terminated. However , all client data, booking data, and all other data created by the Agent within MyAgentGenie is owned and controlled by the Agent. The Company shall make such data available to Agent for a period of thirty (30) days following the termination of this Agreement, for any reason.
4.5 Reconnection Fee. In the event of termination, a Twenty-Five Dollar ($25) reconnection fee shall apply if the Company, in its sole discretion, elects to reinstate the Agent under the terms of this Agreement or the then current version of this Agreement at the time of such reconnection.
- MyAgentGenie License.
5.1 License. The Company hereby grants to Agent a non-exclusive, nontransferable, revocable license (without right to further sublicense) to use MyAgentGenie in connection with this Agreement (the “License”). Agent may use MyAgentGenie in object code form in strict accordance with this Section 5. Agent may not take any actions whatsoever to reverse assemble, reverse compile or otherwise derive a source code version of MyAgentGenie. MyAgentGenie shall at all times remain the sole and exclusive property of the Company.
5.2 Sublicense. Certain components of MyAgentGenie are licensed to the Company by third-party vendors and sublicensed to Agent as part of the License (the “Sublicensed Components”). Prior to using any Sublicensed Component, Agent may be required to agree to additional terms and conditions provided by such third-party vendor. Agent acknowledges and agrees that it will comply with such additional terms and conditions and shall cause each User (as hereinafter defined) to comply with such additional terms and conditions prior to using a Sublicensed Component.
5.3 No Copies. Agent may not copy or download MyAgentGenie in any form whatsoever; provided, however, that Agent may make backup copies of Agent’s data entered into MyAgentGenie as deemed necessary and appropriate by Agent.
5.4 No Resale or Distribution. Agent may not (and covenants that it shall not) either (i) resell or redistribute MyAgentGenie, or (ii) make available any portion of MyAgentGenie to any person other than a User (as defined hereinbelow).
5.5 Authorized Users. Agent covenants and agrees that it shall cause its individual owner, if Agent is a legal entity, and all Subagents authorized by the Company to access to MyAgentGenie (each a “User” and together the “Users”) to comply with the terms and conditions of the License, and that Agent shall be liable for a User’s failure to do so. Agent shall keep a list of all Users, past and present, and shall make such list available to the Company upon the Company’s request.
5.7 Data Privacy.
(a) In the course of using the Services, Agent may collect data from its customers, including but not limited to Users’ first and last names, mailing addresses (including zip codes), e-mail addresses, telephone and facsimile numbers, other personally identifiable information, Uniform Resource Locators (“URLs”), browser identities, Internet Protocol (“IP”) addresses, and Machine Access Control (“MAC”) addresses. Customer Data is owned by the Agent and is Agent shall ultimately be responsible for taking all commercially reasonable steps to ensure the security of the Customer Data including storing the Customer Data in accordance with industry standards.
(b) In the event Agent is required by a law, court order, subpoena, or other judicial or regulatory order to provide Customer Data to governmental authorities in certain circumstances, Agent shall provide notice of such to the Company and shall cooperate with the Company in obtaining a protective order if the Company deems it advisable.
(c) Agent shall provide Customer Data to third-party providers, such as credit card transactions and travel providers, only through the Services. Except as is necessary to conduct the Services, Agent shall not sell or transfer any Customer Data to any third party, whether or not such data has been de-identified, without the prior written consent of the Company.
5.9 Replacement Materials. If the use or provision of MyAgentGenie or any other materials as furnished to Agent hereunder (collectively, “Materials”) is enjoined by reason of any third party Claim, then as Agent’s sole remedy, the Company shall use commercially reasonable efforts, at its option and expense, to either: (i) procure for Agent the right to continue using the Materials; (ii) modify the Materials to become non-infringing (provided that any Materials as modified remains functionally equivalent to the Service when it incorporated the enjoined Materials); or (iii) substitute for the Materials functionally equivalent, non-infringing Materials at no additional charge to Agent. If the Company is unable to provide any of the actions described in clauses (i), (ii) or (iii) hereinabove, then either Party may terminate the affected portion of MyAgentGenie without any liability whatsoever to either Party (other than Agent’s payment obligations for all services provided through the date of termination).
5.10 No Warranties. Except as otherwise specifically provided herein, MyAgentGenie is provided “AS IS”, without warranty of any kind to Agent or any third party including, but not limited to, any express or implied warranties as to: (1) merchantability; (2) fitness for a particular purpose; (3) effort to achieve purpose; (4) quality; (5) accuracy; and (6) non-infringement. The Client further agrees that The Company shall not be liable to the Client or any third party for any loss of profits, loss of use, business interruption, direct, indirect, incidental or consequential damages of any kind whether under this Agreement or otherwise. Modifications made to the Client website or other design and development project by the Client or any third party voids any remaining express or implied warranties.
5.11 General Public License. Certain Sublicensed Components (the “GPL Components”) may be sublicensed to Agent under the GNU General Public License v2 (https://www.gnu.org/licenses/gpl-2.0.en.html) or v3 (https://www.gnu.org/licenses/gpl-3.0.en.html) (together, the “GPL”). Nothing in the License granted hereunder shall be interpreted to contradict the terms of the GPL with respect to the GPL Components. The GPL shall not apply to any portion of MyAgentGenie not developed under the GPL or licensed to the Company under the GPL.
6.1 No Liability for Acts of Agent. The Company shall not be liable to the Agent or any third party for any of the Agent’s acts, promises, commitments, price quotes, rebate quotes, etc. and in the event of any dispute, litigation, or legal expenses stemming from any transaction involving the Agent, the Agent shall be liable for all expenses connected with such a dispute and shall indemnify the Company in the manner hereinafter provided. To the extent the Agent or the Company maintains errors and omissions insurance to ensure against any such claims, the Agent acknowledges and agrees that it shall be responsible for any of the expenses described above in the event a claim is denied or not covered by insurance (or is subject to a deductible) and the Company shall have no liability for recommending or offering to provide such insurance or for the suitability of such insurance as to the Agent’s business.
6.2 Indemnification by Agent. In addition to any other provisions contained herein regarding reimbursement of fees, costs, expenses or damages incurred by the Company hereunder, Agent shall indemnify and hold harmless Company from and against any Claim that may arise against the Company that results from the Agent’s (or any Subagent’s) negligence, non-compliance with vendor requirements, breaches of warranties or covenants contained in this Agreement, violations of law, or other acts or omissions. The obligation of the Agent to indemnify the Company as set forth above shall survive the expiration or termination of this Agreement.
6.3 Indemnification by Company. To the extent that any of the Materials infringe (or allegedly infringe) upon any patent, copyright, trade secret or other proprietary right of a third party, the Company, at its sole option and expense and as Agent’s sole remedy, shall either (i) exercise commercially reasonable efforts to cure the infringement or (ii) shall modify, replace or procure for Agent the right to use the infringing Materials, (iii) shall defend Agent through final judgment or settlement of any Claim asserted against Agent by any third party alleging such infringement, and (iv) will indemnify Agent in the amount of any final judgment or settlement of such Claim. The Company, however, will have no obligation to cure the infringement, to modify, replace or procure the right to use the infringing Materials, or to defend or indemnify Agent if such third party Claim arises out of or relates to: (i) misuse of the Materials; (ii) combination of the Materials with equipment, products or services not approved by the Company; (iii) modification of the Materials by anyone other than the Company; (iv) any use of the Materials that is inconsistent with the License; or (v) the combination of the Materials with any Content uploaded or created by Agent, any User, or any of Agent’s customers. To the extent that a third party Claim arising out of one or more conditions stated in clauses (i) through (v) foregoing is asserted against the Company, then Agent, at its sole cost and expense, shall defend the Company and indemnify the Company in the amount of any final judgment or settlement thereof (together with all costs, including reasonable attorneys’ fees, incurred by the Company as a result of such Claim). As a condition to the foregoing defense and indemnification obligations, each Party agrees to give the other prompt written notice of any written threat, warning, or notice of any such Claim and to provide copies of applicable documentation served upon or received by it.
- Other Terms and Conditions.
7.1 Updates. Any use of any portion of the Company’s website www.outsideagents.com by the Agent constitutes agreement to the terms and conditions of the most current form of this Agreement found at https://tap.myagentgenie.com/independent-travel-consultant-agreement/
7.2 Definitions. Capitalized terms used herein shall have the following definitions:
“Booking” shall mean any travel reservation that Agent makes for a customer, whether such reservation is made in person, by telephone, by e-mail, or online.
“Claim” shall mean any suit, claim, demand, cause of action, administrative, regulatory or judicial action, proceeding (including condemnation or appropriation proceedings), hearing, written notice, arbitration, investigation, request for information, litigation, charge or complaint.
“Content” means information made available, displayed or transmitted over, by, or in connection with MyAgentGenie (including information made available by means of an Internet “hyperlink”, a third party Web posting or similar means) and including all trademarks, trade names service marks and domain names contained therein and all updates, upgrades, modifications and other versions of any of the foregoing.
“Export Laws” mean all domestic and foreign United States laws governing the import or export of technology, including the U.S. Export Administration Act and the regulations implemented thereunder by the U.S. Department of Commerce, the U.S. Foreign Corrupt Practices Act (“FCPA”), and all foreign laws similar to the FCPA)
“Privacy Law(s)” mean(s) all domestic and foreign privacy laws applicable to MyAgentGenie (including the Electronic Communications Privacy Act, the Stored Communications Act, the Federal Trade Commission Act, the U.S. Patriot Act, state privacy laws (including, if MyAgentGenie is used in California, the California Online Privacy Protection Act) and state wiretap laws, together with all respective federal, state (and as applicable, foreign) regulations implementing those laws, as the same may be amended from time to time.
“Regulatory Authority” means any competent federal, state, local, municipal, foreign, international governmental, administrative or judicial authority, including the Federal Communications Commission, the Federal Trade Commission, the United States Congress, state public service commissions, state and local governments, state attorneys general, cities, municipalities, townships, departments of transportation, and all other governmental entities having jurisdiction over the Parties, this Agreement, MyAgentGenie, or any matter related thereto.
7.3Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been received by the person to whom it is addressed when delivered if delivered in person, via email with or without confirmation of receipt from recipient, via email without bounce notification by the recipient’s email provider, or automated confirmation as provided by return receipt from major email clients, or three (3) days after it is deposited in the United States mail, if mailed by certified or registered mail, postage prepaid and addressed to the appropriate party at the address set forth on page 1 of this Agreement or at such other address as hereinafter provided by a party in accordance with the notice provisions as described herein.
7.4Severability. Should any part or provision of this Agreement, for any reason, be declared invalid or illegal, such invalidity or illegality shall not affect the validity of any remaining portion, which remaining portion shall remain in force and effect as if this Agreement had been executed with the invalid or illegal portions thereof eliminated.
7.5Binding Effect; Assignment. All the provisions herein contained shall be binding upon and inure to the benefit of the respective heirs, personal representatives, successors and assigns of the parties hereto, provided, however, that the Agent may not assign this Agreement in whole or in part to any other person or entity, by operation of law or otherwise, without the prior written consent of the Company. Any attempted assignment by the Agent without the Company’s prior written consent shall be null and void.
7.6Entire Agreement. This Agreement and any other agreements incorporated herein by reference constitute the entire agreement between the parties hereto pertaining to the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, letters of intent, negotiations and discussions, whether written or oral, of the parties with respect to the subject matter hereof. No supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the parties to be bound thereby.
7.7Governing Law; Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. In the event of any legal action or proceeding arising from this Agreement, the parties agree that the state court forum for said litigation shall be in Duval County, Florida, in the court of appropriate jurisdiction, and that the federal court jurisdiction shall be in the Middle District of Florida in Duval County, Florida. The parties hereto submit to the exclusive jurisdiction of such courts and hereby waive any objection or defense to such jurisdiction or venue, including any defense based upon inconvenient forum.
THE UNDERSIGNED AGENT UNDERSTANDS AND AGREES WITH THE CONDITIONS AND LIMITATIONS OF THIS AGREEMENT AND AGREES TO BECOME AN INDEPENDENT TRAVEL CONSULTANT IN ACCORDANCE WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. THIS AGREEMENT SHALL NOT BECOME EFFECTIVE UNTIL ACCEPTED BY THE COMPANY BY EXECUTION OF THIS AGREEMENT AND DELIVERY OF AN EXECUTED COPY TO THE INDEPENDENT TRAVEL CONSULTANT.
IN WITNESS WHEREOF, the undersigned have entered into this Agreement as of the date first set forth above.
By (Print Name):
A.S.A.P. CRUISES, INCORPORATED
d/b/a OUTSIDE AGENTS
9125 Phillips Highway
Jacksonville, Florida 32256
Fax to 904.739.3219 OR
Scan and email to email@example.com
In consideration of, and as an inducement to, the execution of that certain Independent Travel Consultant Agreement (“Agreement”) dated as of ________, 2019, by and between A.S.A.P. INCORPORATED d/b/a OUTSIDE AGENTS, a Florida corporation (“Company”), and ______________________________________________________ (“Agent”) (the “Agreement”), each of the undersigned persons (the “Guarantors”) hereby agree as follows:
- Obligations of Guarantors. Guarantors absolutely, unconditionally, jointly, and severally guarantee to the Company the full payment and performance of the covenants, representations, warranties, and agreements, of Agent contained and set forth in the Agreement, together with any extensions, renewals, or modifications thereof (collectively, the “Obligations”).
- Unconditional Guaranty. No action that the Company may take or omit to take in connection with the Obligations, and no conduct, custom, practice or course of dealing of the Company with the Guarantors or any other person or entity, shall release or diminish the Guarantors’ obligations, liabilities, agreements or duties hereunder, affect this Guaranty in any way, or afford the Guarantors any recourse against the Company, regardless of whether any such action or inaction may increase any risks to, or liabilities of, the Guarantors. No action or inaction of the Guarantors or any other person or entity, and no change of law or circumstances shall release or diminish the Guarantors’ obligations, liabilities, agreements or duties hereunder, affect this Guaranty in any way, or afford the Guarantors any recourse against the Agent.
- Term of Guaranty. The liability of Guarantors hereunder shall continue so long as Agent’s obligations continue under the Agreement, including any obligations of Agent that survive the termination of the Agreement.
- Waivers by Guarantors. The Guarantors hereby waive notice of all of the following: (i) the Company’s action or inaction with respect to any of the Obligations; the Company’s acceptance of this Guaranty; (iii) the present existence or future incurring of any of the Obligations or any terms or amounts thereof or any change therein; (iv) any default by the Agent or any Guarantor; (v) the obtaining or release of any guaranty or surety agreement (in addition to this Guaranty), pledge, assignment, or other security for any of the Obligations; and (vi) the presentment, demand, notice of demand, presentment for payment, protest, notice of nonpayment or dishonor, notice of protest and any other demands and notices required by law in connection with this Guaranty or any instrument evidencing any Obligations, except as such waiver may be expressly prohibited by law.
- Consent to Company’s Acts; Agreements of Guarantor. The Guarantors consent, without affecting the Guarantors’ liability to the Company hereunder, that the Company may, without notice to or consent of the Guarantors, upon such terms as it may deem advisable: (a) extend, in whole or in part, by renewal or otherwise, the time of payment of any installment or other payment due under the Agreement; and (b) settle against any other person, firm or corporation whose obligation is held by the Company. The Guarantors hereby ratify and affirm any such extension, renewal, release, surrender, exchange, modification, impairment, settlement or compromise; and all such actions shall be binding upon the Guarantors, who hereby waive all defenses, counterclaims or offsets which the Guarantors might have by reason thereof. The Guarantors agree to make all payments hereunder in lawful money of the United States of America in immediately available funds.
- No Subrogation. Nothing herein contained is intended or shall be construed to give to Guarantors any right of subrogation in or under any agreement, security document, or any other loan document evidencing in any way or relating to any Obligation of Agent to the Company, any right to participate in any way therein, or in the right, title, and interest of the Company in and to any collateral covered by any loan or security documents relating to any such obligation notwithstanding any payments made by Guarantors under this Guaranty, all such rights of subrogation and participation being hereby expressly waived and released.
- Representations by Guarantors. Guarantors, jointly and severally, represent that, at the time of the execution and delivery of this Guaranty, nothing exists to impair the effectiveness of the liability of Guarantors to Agent hereunder, or the immediate taking effect of this Guaranty as the sole agreement between Guarantors and Agent with respect to guaranteeing Agent’s obligation to the Company as described herein.
- Remedies of Company. The Company shall have the right to proceed against any Guarantor without first proceeding against the Agent or any other guarantor or endorser of the Obligations. The Company may proceed against one Guarantor or against any or all Guarantors, jointly and severally. Nothing in this paragraph shall impair any other rights that the Company may have by operation of law or under any other document, all of which rights are cumulative.
- Return of Payments of Guarantors. Notwithstanding the cancellation or termination of the Agreement, or any other note or other agreement evidencing the Obligations, the Guarantors agree that, if at any time all or any part of any payment previously applied by the Company to any of the Obligations must be returned by the Company for any reason, whether by court order, administrative order, or settlement, the Guarantors shall be liable for the full amount returned as if such amount had never been received by the Company.
- Representations by Guarantors. The Guarantors represent that, at the time of the execution and delivery of this Guaranty, nothing exists to impair the effectiveness of the liability of the Guarantors to the Company hereunder or the immediate taking effect of this Guaranty as the sole agreement between the Guarantors and the Company with respect to guaranteeing the Agreement.
- Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been received by the person to whom it is addressed when delivered if delivered in person, via email with or without confirmation of receipt from the recipient, via email without bounce notification by the recipient’s email provider, or automated confirmation as provided by return receipt from major email clients, or three (3) days after it is deposited in the United States mail, if mailed by certified or registered mail, postage prepaid and addressed to the appropriate party at the addresses set forth on the signature pages to this Guaranty or at such other address as hereinafter provided by a party in accordance with the notice provisions as described herein.
- Severability. Should any part or provision of this Guaranty, for any reason, be declared invalid or illegal, such invalidity or illegality shall not affect the validity of any remaining portion, which remaining portion shall remain in force and effect as if this Guaranty had been executed with the invalid or illegal portions thereof eliminated.
- Binding Effect; Assignment. All the provisions herein contained shall be binding upon and inure to the benefit of the respective heirs, personal representatives, successors and assigns of the parties hereto, provided, however, that the Agent may not assign this Guaranty in whole or in part to any other person or entity, by operation of law or otherwise, without the prior written consent of the Company. Any attempted assignment by the Agent without the Company’s prior written consent shall be null and void.
- Entire Agreement. This Guaranty and any other agreements incorporated herein by reference constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, letters of intent, negotiations and discussions, whether written or oral, of the parties with respect to the subject matter hereof. No supplement, modification or waiver of this Guaranty shall be binding unless executed in writing by the parties to be bound thereby.
- Governing Law; Venue. This Guaranty shall be construed and enforced in accordance with the laws of the State of Florida. In the event of any legal action or proceeding arising from this Guaranty, the parties agree that the state court forum for said litigation shall be in Duval County, Florida, in the court of appropriate jurisdiction, and that the federal court jurisdiction shall be in the Middle District of Florida in Duval County, Florida. The parties hereto submit to the exclusive jurisdiction of such courts and hereby waive any objection or defense to such jurisdiction or venue, including any defense based upon inconvenient forum.
IN WITNESS WHEREOF, each of the undersigned has executed this Guaranty under seal effective as of the date of the Agreement
By (Print Name):
Optional Services and Fees
(All can be subscribed to/purchased online inside www.outsideagents.com. All are described in detail inside www.outsideagents.com.)
MAGSite with Errors and Omissions Insurance – $21.00 per month
MAGSite Ultimate with Errors and Omissions Insurance – $41.00 per month
Sub-Agent Maintenance – $12 per month
Prices are subject to change.