Last Modified: October 22, 2020
This Terms of Service Agreement (this “Agreement”) is a binding contract between you (”Customer”, “you”, or “your”) and Guess Where Trips Inc. (”Guess Where Trips”, “we”, or “us”). This Agreement governs your access to and use of our Services.
BY CLICKING THE “I ACCEPT” BUTTON OR BY PURCHASING ANY TRIP PACKAGE YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT CLICK THE “I ACCEPT” BUTTON AND DO NOT COMPLETE ANY PURCHASE. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE OUR SERVICES OR TRIP PACKAGES.
(a) ”Customer” has the meaning set out above, and includes your employees, consultants, contractors, and agents and those for whom the Services and Trip Packages have been purchased and all of your guests.
(b) ”Services” means the services provided by Guess Where Trips under this Agreement that are detailed on Guess Where Trips’ website available at https://www.guesswheretrips.com/.
(c) ”Documentation” means Guess Where Trips’ handbooks, and guides relating to the Services provided by Guess Where Trips to Customer either electronically or in hard copy form, and includes the Trip Packages.
(d) ”Guess Where Trips IP” means the Services and the Documentation and all intellectual property provided to Customer in connection with the foregoing.
(e) ”Third-Party Products” means any products, content, services, information, websites, facilities, events, locations, parks, walks, buildings, tours, entertainment, foods, beverages, food stuffs, food services, merchandise, reservations, or any other goods and services whatsoever that are offered or sold to you by a third party, including without limitation any and all suggestions or recommendations provided for or included in the Services or itemized in a Trip Package.
(f) “Trip Packages” means the trip itinerary, recommendations, and suggestions and all assorted and related documentation, descriptions, maps, images, and any other documents that we provide to you as a part of the Services.
2. Access and Use.
(a) Provision of Access. Subject to and conditioned on your payment of Fees and compliance with all other terms and conditions of this Agreement, Guess Where Trips hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services and the Documentation solely for your personal use in accordance with the terms and conditions of this Agreement.
(b) Documentation Licence. Subject to the terms and conditions contained in this Agreement, Guess Where Trips hereby grants you a non-exclusive, non-sublicensable, non-transferable license to use the Documentation solely for your personal use.
(e) Use Restrictions. You shall not use the Services or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit anyone to: (i) copy, modify, or create derivative works of the Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Documentation except as expressly permitted under this Agreement; (iii) remove any proprietary notices from the Services or Documentation; or (iv) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
(f) Reservation of Rights. Guess Where Trips reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Guess Where Trips IP.
3. Customer Responsibilities.
(a) Travel and Risk. You acknowledge and agree that travel of any kind involves inherent risk and by participating in the Trip Packages and using the Services you accept those risks voluntarily. You are responsible for your own travel to and from all destinations and agree to obey all traffic and other laws from all governmental authorities. You acknowledge and agree that all destinations are owned and operated by third parties not affiliated with us, and you agree that your use of our suggestions, destinations and itinerary is at your own risk.
(b) Weather and Conditions. Conditions and weather may vary day to day, season to season and between the start of any excursion and its conclusion. Such changes may affect the risk, safety and availability of travel, destinations and excursions. You accept full responsibility for determining if conditions are safe for travel, whether or not Third Party Products are safe or adequate for use, and whether or not destinations, excursions and other suggestions are safe or adequate for your use.
(c) Third-Party Products. The Services may relate to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you by the third party provider in accordance with such provider’s usual method of business. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not access, or use such Third-Party Products.
(d) Acceptable Use Policy. You acknowledge and agree that all destinations, excursions and suggestions listed in the Trip Package are operated by third parties and not affiliated with us, and you agree to treat all of the third party owners and operators with respect and to obey any rules and regulations that such third party owners and operators may put in place with respect to the Third Party Products, including without limitation, any rules and regulations pertaining to safety.
(e) COVID-19 Risk. Further to the above, COVID-19 is a communicable disease that is present in Canada and is a risk to travel in Canada. By using the Services, you acknowledge and accept this risk. It is your responsibility to follow all local guidelines and regulations made by any governmental body, including, without limitation, any local health officers or health guidelines relating to COVID-19, and it is your responsibility to determine if it is safe for you to travel in spite of these risks.
4. Fees and Payment. In exchange for the Services, you will pay us the fees as set out at the time of purchase (the ”Fees”). All Fees are payable in Canadian dollars at the time of purchase.
6. Intellectual Property Ownership; Feedback. As between you and us, we own all right, title, and interest, including all intellectual property rights, in and to the Services and the Documents. If you or any of your employees, contractors, and agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), all such Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
7. Warranty Disclaimer. THE SERVICES ARE PROVIDED “AS IS” AND GUESS WHERE TRIPS SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. GUESS WHERE TRIPS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. GUESS WHERE TRIPS MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
8. Indemnification. Customer shall indemnify, hold harmless, and, at Guess Where Trips’ option, defend Guess Where Trips and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any third-party claim based on Customer’s negligence or wilful misconduct; provided that Customer may not settle any third-party Claim against Guess Where Trips unless Guess Where Trips consents to such settlement, and further provided that Guess Where Trips will have the right, at its option, to defend itself against any such third-party claim or to participate in the defence thereof by counsel of its own choice. You acknowledge that the extent of this indemnity extends to any person who you are responsible for at law, including any person who you invite to use the Services with you.
9. Limitations of Liability. IN NO EVENT WILL GUESS WHERE TRIPS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; OR (d) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER GUESS WHERE TRIPS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL GUESS WHERE TRIPS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO GUESS WHERE TRIPS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $200, WHICHEVER IS LESS.
10. Survival. This Section 10, Section 8, Section 9 and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any termination or expiration of this Agreement indefinitely.
11. Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective upon our posting of the modified Agreement on our website. You will be notified of modifications through notifications or posts on www.guesswheretrips.com. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms.
12. Governing Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether founded in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario.
13. Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, litigation or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
14. Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters address available at www.guesswheretrips.com and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us at the contact email that you provided to us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.