Terms of Service
Last Updated: August 20, 2019
These Terms of Service (hereinafter “TOS”) provide a set of policies and conditions that bind us. This TOS is between Tourbase, LLC, d/b/a Tourbase (hereinafter “Tourbase,” “Company,” “we,” “our,” or “us”) and you, our customer (hereinafter “Customer,” “you” or “your”).
For questions, comments or suggestions, please contact us at:
300 E 2nd St., Unit 2
Whitefish, MT 59937
BY ACCESSING OR USING THIS WEBSITE, OR ENGAGING US FOR SERVICES, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ, UNDERSTAND, AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS TOS.
- “Agreement” shall mean this TOS, and “Agreement” and “TOS” shall be used interchangeably within this document. This TOS is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral. Any conflict between the documents shall be resolved by reading the documents in the foregoing order of precedence.
- “Work Product” means, the copyrights, look-and-feel, layout, programming, material, designs, discoveries, products, programs, routines, procedures, processes, formulas, know-how, techniques, improvements, developments, drawings, notes, documents, templates, images or elements within a design, font styles, images within fonts or elements, information and materials made, conceived or developed by Tourbase alone or with others in the performance of the Services contracted, including without limitation, any and all materials provided to you hereunder by Tourbase.
- “Services” means any and all Work Product, functionality, advice, consulting or other work or efforts expended, loaned, leased, rented, given or otherwise provided to you by Tourbase, whether over the Internet or otherwise.
- Maintenance. Tourbase shall be responsible for maintaining Services; and shall strive to keep all functionality and sensitive data secure; and shall issue updates from time to time.
- Uptime Guarantee. Tourbase guarantees 99.9% uptime, and for any Downtime (defined herein below) greater than 30-minutes in any given month, Tourbase will credit your account one-hundred (100) times the prorated monthly fees for the associated downtime. In order to obtain this credit, you must submit a written request to Tourbase within five (5) business days of experiencing the outage, and only for “Downtime” defined as follows: The Services are disabled or unavailable for all users and customers on the Internet. Downtime associated with your computer failures, problems with your Internet Service Provider, or regularly scheduled maintenance windows are expressly excluded from this guarantee.
- Data Limits. Tourbase will provide storage capacity of up to 10 gigabytes of data and process up to 10,000 outgoing e-mails per month in connection with providing the Services. Tourbase reserves the right to charge additional fees for accounts involving larger data storage and processing requirements.
- Support. Tourbase shall be responsible for providing documentation, training, support and access to Services.
- Customer Data. Tourbase agrees to not sell or intentionally release your customer data, except to third-party vendors as may be necessary to provide Services, including the storage and provision of electronic liability waivers, as required by law or compelled by court order, or as part of a sale or merger involving substantially all of our business assets.
- Taxes. You shall be responsible for collecting and paying any and all taxes of a transactional nature, including but not limited to gross receipts, sales and use taxes that may be required in the jurisdiction(s) where you are registered, located, or conducting business.
- Legal Compliance. You are responsible for knowledge and compliance with all applicable federal, state and local laws; and you agree and understand that Tourbase is not responsible to inform you or help you maintain legal compliance with your state and local laws and regulations.
- Credit Card Transaction Processing. You agree to abide by the following terms and conditions related to Credit Card Transaction Processing:
- You shall indemnify and hold Tourbase harmless from any relevant bank fees, bank charges, chargebacks or any other fees, charges or penalties related to your acceptance of credit cards over the Internet or for your business.
- You are responsible for establishing and maintaining your own merchant account and bank account, as necessary, to process credit card transactions over the Internet or in your store.
- Tourbase is not responsible for fraudulent charges or illegal activity you may encounter over the Internet, including but not limited to fraudulent purchases or reservations.
- Electronic Liability Waivers. You agree to abide by the following terms and conditions related to Electronic Liability Waivers:
- You are responsible for establishing and maintaining procedures to ensure that Electronic Liability Waivers are not signed by parties other than those authorized to sign a particular waiver, to monitor, using the Services, the execution of Electronic Liability Waivers, and to inform your customers on your website and in other materials how they can obtain a copy of their signed Electronic Liability Waivers.
- You are responsible for the language used in Electronic Liability Waivers.
- You will require choice of law and venue provisions in your contracts with your customers suitable for enforcement of Electronic Liability Waivers.
- You will follow Tourbase recommended procedures for preserving Electronic Liability Waivers and will take the required steps to download and preserve Electronic Liability Waivers on any termination of the Services.
- Maintaining Successful Customer Relationships. You agree to abide by the following requirements as it relates to business ethics and operational guidelines:
- You agree to timely respond to the online requests and email of us, as well as your customers. This is especially important if you are using any scheduling functionality.
- You agree to honor and fulfill all the products and services you sell over the Internet
- You agree to maintain, publish and adhere to a Terms of Service compatible with this Agreement; or alternatively, to review the various Terms of Service we publish on your website, and alert us to any corrections you believe must be made. You understand and agree that the various Terms of Service contained on your website is a contract between you and your customers, and you will abide by that contract, as well as indemnify and hold Tourbase harmless for any breaches you commit against any of the Terms of Service contained on your website and/or the Services.
- You agree to keep credit card information secure and only make it available to those few employees as necessary to process legitimate credit card transactions; and you further agree to adhere to any security requirements imposed by your merchant account, payment gateway or any credit card company.
- You are responsible for ensuring that the products or services you sell or make available are not illegal, are accurately represented and that the content of your store and related offerings do not infringe the rights of others.
- You agree we are not responsible for any disputed business transaction/s resulting from your online and e-commerce activities.
- Timely Reporting of Problems. You agree to notify Tourbase as quickly as practical, when you become aware of any critical failure in Services or breach of security.
- Adherence to Tourbase’ Online TOS. You agree to read and abide by this TOS. You acknowledge that this TOS is intended to protect the quiet enjoyment of Services for all Tourbase customers, and that a violation of this TOS could result in immediate termination of Services without notice to you. You further agree that we may amend or make modifications to this TOS from time to time and without notice to you. The terms of this TOS may not otherwise be modified or amended. Furthermore, you understand and agree that any of the following activities would be considered a violation of this TOS, resulting in immediate termination of Services or your account:
- Illegal Activities – Engaging in activities, or using the Services to facilitate your customers engaging in activities, that are judged or deemed illegal in the United States or the jurisdiction in which you reside.
- Pornography – Posting or using sexually explicit material on our servers or through Services, whether legal or illegal.
- Spamming – Sending, assisting, or commissioning the transmission of unsolicited commercial email unless it conforms to the requirements of federal law under the CAN-SPAM Act. We reserve the right to take action against spamming complaints, even if the allegations meet CAN-SPAM requirements, if the allegation threatens our ability to provide Services.
- Forging Email Headers – The transmission of email that hides or falsifies the identity of the sender.
- Fraud – Negligently, recklessly or knowingly making false or misleading statements; including but not limited to obtaining money, credit card payments or personal identifying information through false pretenses. This includes using our Services to submit fake reviews on third party websites.
- Harassment – The act or intention of intimidating, threatening or otherwise harassing others. Harassment can result from the language used, or the frequency or size of the messages.
- Prohibited Communications – Transmitting defamatory, harassing, abusive or threatening language or anything that a reasonable person would regard as hate speech or literature. This includes language or other expression that significantly prejudices, creates a hostile bias, or grossly defames a group, and applies to any speech category unprotected by freedom of speech and expression.
- Facilitating a Violation of this TOS – Advertising, transmitting, or otherwise making available any software, program, product, service or information that is designed to violate, or assist in the violation of this TOS.
- Intellectual Property Violations – Engaging in any activity that infringes or misappropriates the intellectual property rights of others, including but not limited to copyrights, trademarks, service marks, trade secrets, software and patents held by other individuals, corporations or entities. Common instances leading to intellectual property violations involve the unauthorized use of pictures and using another’s trademarks without their permission to promote competing goods or services.
- Digital Millennium Copyright Act (DMCA) Procedures – When we receive proper notice that your website infringes the copyrights of another, we have a legal obligation, per Title 17 United States Code, Section 512, to “respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.” Our Copyright Agent is:
Copyright Agent, DMCA Notice
300 E 2nd St., Unit 2
Whitefish, MT 59937
- Trademark Infringement – Any use of a trademark, service mark, trade dress or other identifying mark, word, phrase, color, picture or layout that could lead to a likelihood of confusion between you and the legitimate holder of a valid trade or service mark.
- Tourbase Copyrighted or Licensed Material – The use of the images, photos, content or marks found on this website or the name “Tourbase” without the prior written consent of Tourbase. Any photos or images provided by Tourbase for your website are only available for that use, and may not be used for other purposes. Prohibited uses included, but are not limited to, use on brochures, marketing materials, and advertisements.
- Unauthorized Reselling – Selling a third-party’s product or service, not your own, that you are not permitted to sell either outright or over the Internet. Common instances of this occur for products you may be authorized to sell within a retail location, but are not authorized to sell on the Internet, or sell on the Internet for a price below the manufacturer’s suggested retail price (MSRP).
- Violating Security – Releasing your Tourbase’ username and/or password to third-parties, not immediately removing ex-employees from your account, selling and/or releasing customer private identifying information, or in any other way violating the privacy of another.
- Violating US Export Laws – You are required to comply with U.S. Export Control Laws regardless of where you may reside. You may not export items prohibited by the Department of Commerce Commodity Control List.
- Other Harmful Activities or Information – Any activity or information, whether lawful or unlawful, that we deem harmful, offensive, controversial, infamous or other to either Tourbase, our customers, or third-parties, such that we reasonably believe our customers, operations, reputation, goodwill or general customer relations could potentially be negatively impacted.
Fees and Payment Policies
- Fees. You will pay to Tourbase the fees in accordance with the fees listed on our website. Payment of invoiced fees are due within thirty days of the date of the invoice. All fees are non-refundable, except as otherwise provided herein.
- Payment by Credit Card. You hereby grant Tourbase permission to charge your credit card for any and all Services requested on a recurring basis.
- Enforcing Payment. We reserve the right to take any action we deem necessary to secure payment for Services, including but not limited to suspending or deactivating any and/or all Services. You agree to indemnify and hold us harmless from any liability resulting from our actions attempting to secure payment for Services.
- Taxes. All fees are exclusive of all taxes, duties or levies; however they are designated or computed. You will be responsible for, and pay all taxes based on payments due as a result of paying for and/or receiving Services, which may include but are not limited to gross receipts, sales, use, or value-added taxes, duties, withholding taxes and other assessments now or hereafter imposed, exclusive of taxes based upon Tourbase’ net income.
- Term. Unless terminated as set forth herein, this TOS will commence on the first day you receive any amount of Service from Tourbase, and will continue for one (1) month. Thereafter, this Agreement will automatically renew on a month-to-month basis until terminated by either Party per the terms of this Agreement or with at least thirty (30) days notice to the non-terminating Party. The initial term and any renewals will collectively be referred to as “Term.”
- Effect of Termination. Upon termination of Services, the following shall apply:
- All rights and obligations provided under the sections entitled “Confidentiality” and “Indemnity, Warranty and Liability” shall survive termination for any reason.
- Neither Party shall be liable to the other for damages, losses, costs or expenses whatsoever on account of such termination arising from or in connection with the loss of prospective sales, expenses incurred or investments made with the establishment, development or maintenance of either Party’s business.
Customer Data & Co-branding
- Customer Data. You agree Tourbase may aggregate customer data for its own purposes, however under no circumstances shall aggregation include information that personally identifies you or your customers. You also agree customer data may be used individually by each of your customers, as may be necessary to participate in additional services provided by Tourbase, its third-party vendors, or its business partners.
- Co-Branding. You agree that Tourbase may place a logo on any and all web pages served up by Tourbase on your website, which may be that of Tourbase, or one of its third-party vendors or business partners. If you object, you may terminate your Services with Tourbase, if Tourbase is either unwilling or unable to remediate the objection.
- Unified Login. You understand and agree that any signup and/or login necessary for Services may feed, relate, participate, coordinate or share a larger customer database maintained by Tourbase, its third-party vendors or its business partners.
The account owner is the individual or company listed in our database as the party responsible for paying for the account and listed as the account credit card holder, unless a different name has been authorized to make administrative account decisions.
We are not liable for any account disputes that may arise between various parties holding your account login information when the information has been distributed by the verified account holder. We are not responsible for any changes made to the account or any information that has been modified by you, or any parties authorized by you, to access Tourbase.
We are not responsible for errors or omissions to your account through Tourbase. You understand and acknowledge that errors entered into Tourbase will show up immediately on your website.
Complaints Against Our Customers
Generally speaking, unless we are required by law, we respond to third-party complaints or notices by submitting the information to you and asking you to respond appropriately.
We do not monitor the website content or email of our customers, nor do we take responsibility for the content or information contained on your websites or emails. In limited situations, as outlined in this TOS, we will review website content or email to validate compliance with this TOS.
We will use our best judgment in determining the sufficiency and adequacy of subpoenas, and you agree we are not liable when we comply with a subpoena, and it later turns out the subpoena was improper, not legally sufficient or not adequate.
Emergencies & Use Affecting Others
We reserve the right to take any proactive steps we deem necessary to maintain the security, connectivity, performance and services of our Customers, including but not limited to actions requiring us to suspend your website, shut down our network, or review the content on your website.
In rare instances, we may need to completely delete your website because of some significant failure, security breach or other emergency. In such cases, we do our best to backup your website, but we cannot guarantee a full restore of your website.
Delegation of Duties
We reserve the right to delegate the rights or duties of this TOS to a third-party, as well as transfer your account in the sale of assets or accounts to another organization. You agree that your Contract for Services may be transferred by us to another without limitation, and your duties and obligations under this TOS shall not diminish under any circumstances involving a change of control, forfeiture, exchange of assets or bankruptcy (hereinafter “Change of Control”) where performance for Services is the same, or substantially similar to, Services before the Change of Control occurred.
Proprietary Rights & Intellectual Property
The Parties intend and agree that ownership in any and all Intellectual Property remain with the Party that created or introduced the relevant material, and in particular (i) marks that uniquely identify you reside with you, and (ii) any and all Work Product and other copyrightable works created by Tourbase and/or which uniquely identify Tourbase reside exclusively with Tourbase.
- Ownership. You and Tourbase expressly agree that all Work Product is the sole and exclusive property of Tourbase, and Tourbase herein agrees to provide you with a non-exclusive, non-transferable license to use Work Product for as long as you remain a customer in good standing.
- Company Supplied Material. Nothing in this TOS shall be construed to convey rights or title to Tourbase of materials that are supplied by, or created by, you. You shall maintain all rights in your trademarks, graphics, content and derivative works. Company Supplied Material does not include materials created by Tourbase at your request or suggestion.
- Tourbase Supplied or Licensed Material. Many images and stock photography have been purchased or created by Tourbase for use for the Services or on your website only. Tourbase hereby grants you a non-exclusive right to use any stock photography or images for the Services, while you remain a customer in good standing. It is a violation of this TOS, as well as any relevant third-party licenses, to use any images or photos supplied by Tourbase for any other purpose than the Services. Furthermore, you hereby agree to remove and forever discontinue using any images or photos supplied by Tourbase, upon the request of Tourbase.
- Program Functionality. Tourbase has expended considerable time and effort creating its Work Product. Tourbase will make this functionality available to you for as long as you remain a customer in good standing, and we exclusively reserve and retain all rights and title to Work Product. Tourbase may remove this functionality from your website or the Services upon termination of Services, or if you fail to remain a customer in good standing, without notice and without recourse.
- Independent Contractor Relationship. Tourbase is an independent contractor for the purposes of US Copyright Law.
- Defined. “Confidential Information” shall mean all information disclosed by either Party to the other Party in oral, written or machine-readable form, which has value because it is not generally known and the owner uses reasonable efforts to protect it and identify it in writing as confidential. Confidential Information also includes any information that has been disclosed by a third-party that is required to be treated as confidential. All Confidential Information shall be marked as such or designated as such in writing within thirty (30) days following disclosure to either Party. Confidential Information does not include any information which: (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure; (iv) is independently developed by the other Party; or (v) is disclosed by operation of law. All Confidential Information shall remain the exclusive property of the discloser or its licensors.
- Preserving Confidentiality. Each Party hereby agrees that it shall, and cause its personnel to, not use any Confidential Information received from the other Party other than as expressly permitted under these Terms of Service or expressly authorized in writing by the other Party. Each Party shall use the same degree of care to protect the other Party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither Party shall disclose the other Party’s Confidential Information to any person or entity other than its officers, employees and independent contractors who are directly involved in performing the Services and have a specific need to know such information in order to effect the intent of this TOS and who have entered into written confidentiality agreements with that Party consistent with and no less restrictive than this section.
- Injunctive Relief. You acknowledge that any breach of the provisions of Confidentiality may cause irreparable harm and significant injury to an extent that may be extremely difficult to ascertain. Accordingly, you agree that Tourbase will have, in addition to any other rights or remedies available to it at law or in equity, the right to seek injunctive relief to enjoin any breach or violation of this section.
Indemnity, Warranty and Liability
- Indemnity for Customer Transactions. You shall, at your expense, defend and fully indemnify and hold us harmless against any and all claims or harms resulting from your use of our Services, including but not limited to government actions against you or your business; your negligence; third-party causes of action or malicious conduct against you, your company, your customers or the Services; consumer allegations of fraud, misrepresentation, non-performance or non-delivery; and any other manner or means of harm, expense, penalty, tax, or punitive or compensatory measure resulting from the transactions between you and your customers, regardless of (1) whether or not Tourbase had knowledge of, or should have known, of the claim or harm; (2) whether Tourbase had been notified of the claim or harm; (3) whether Tourbase could have taken action to mitigate the claim or harm; or (4) whether Tourbase contributed or factored in the claim or harm.
- Indemnity for Infringing Work Product. Each Party shall, at its expense, defend and indemnify the other Party against a claim that any information, graphic, picture, design, specification, instruction, software, data or other material furnished to the other Party that infringes a United States copyright or patent and will pay all losses, liabilities, damages, claims and related expenses (including attorney fees) either awarded by court or agreed to in an out-of-court settlement. Notwithstanding the above, Tourbase shall have no liability hereunder for any claim of infringement based on (i) modifications, adaptations or changes to any Work Product not made by Tourbase, (ii) the combination or use of any Work Product with any materials not furnished by Tourbase, if such infringement would have been avoided by use of the Work Product alone, or (iii) the use or incorporation of any materials supplied to Tourbase by you. In the event that any portion of the Work Product is held to, or Tourbase believes is likely to be held to, infringe the intellectual property rights of a third party, Tourbase shall have the right at its sole option and expense to (i) substitute or modify the Work Product so that it is non-infringing, (ii) obtain for the Company a license to continue using the Work Product, or (iii) require the return, or discontinued use, of the infringing Work Product. If such return materially affects your ability to conduct your business, then you may elect to terminate Services. This section sets forth your sole and exclusive remedy for intellectual property infringement by Tourbase.
- Indemnification Procedures. If either Party becomes aware of a claim which may require indemnification, the indemnified Party will promptly notify the other Party in writing of the claim and will allow the other Party to assume full control of the defense and settlement of the claim. The indemnified Party will provide the other Party with the assistance and information necessary to defend and settle the claim.
- Warranty. Each Party represents and warrants to the other Party that it has the full power, right and authority to enter into and perform a relationship with the other Party. Tourbase further represents and warrants that Services will be performed in a professional manner, consistent with generally accepted industry standards. For any breach of such warranty, your exclusive remedy and Tourbase’ entire liability shall be the re-performance of the Services. You must request such remedy from Tourbase in writing not more than fifteen (15) business days following the completion of the Services. You warrant that you own or have the right to provide to Tourbase any Confidential Information.
- No Implied Warranties. Except as explicitly set forth in this Agreement, Tourbase makes no warranty, express or implied in connection with the Services and Work Product, including the results and performance thereof, including without limitation any implied warranties of merchantability, noninfringement, fitness for a particular purpose or legal compliance.
- Limitation of Liability – Functionality. Without limiting the foregoing, Tourbase is not liable for any failure of the Services due to hardware or other software owned by you or a third party, or modifications by you or a third party to e-mail templates, the guest facing website code, or other user modifiable parts of the Work Product.
- Limitation of Liability – PCI Compliance. Without limiting the foregoing, Tourbase is not liable for any failure of the Services to comply with PCI Security Council Standards, including the PCI Data Security Standard.
- Limitation of Liability – Limitation on Amount. The maximum liability of Tourbase to you for damages relating to Tourbase’ for any and all other causes whatsoever, and your maximum remedy, regardless of the form of action, whether in contract, tort or otherwise shall be limited to reimbursement of any fees paid by you to Tourbase during the year prior to the incident giving rise to the damages.
- No Special Damages. In no event shall Tourbase be liable for (i) any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the Services or Work Product, even if Tourbase has been advised of the possibility of such damages, or otherwise for any such claim, or (ii) for any damages or costs arising from any third party’s actions, failure to act, or delay in performing any obligation whatsoever. Without limiting the generality of the foregoing, Tourbase shall not be liable for personal injury or property damage.
- Relationship between the Parties. Neither you nor Tourbase is a legal representative, agent, or a partner of the other. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes. Each Party will maintain appropriate worker’s compensation for its employees as well as general liability insurance.
- Severability. In the event any part of this Agreement is held to be invalid or unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remaining provisions of this Agreement will remain in full force.
- Governing Law. This Agreement shall be construed in accordance with the laws of the State of New Mexico, excluding conflict of laws provisions, applicable to agreements made and fully performed therein.
- Venue. The Parties consent to personal jurisdiction in the fed¬eral and state courts of the State of New Mexico for any action arising out of or relating to this Agreement, the Work Product, or the Services. The federal and state courts of the State of New Mexico shall have exclusive jurisdiction over all such actions.
- Waiver. The failure by either Party to enforce, at any time, any of the provisions of this Agreement, or to exercise any election or option provided herein, shall in no way be construed as a waiver of such provisions or options, nor in any way to affect the validity of this Agreement or any part thereof, or the right of either Party thereafter to enforce each and every such provision.
- Publicity. You agree that Tourbase shall be allowed to use your name on its list of customers, and disclose the same to its present and potential customers.
- Notice. All notices, requests, consents and other communications required or permitted under this TOS shall be in writing and shall be sent by email, or registered or certified mail, postage prepaid or transmitted by telefax if confirmed by such mailing, to you or Tourbase. Either Party may change its address by written notice to the other.
- Force Majeure. Either Party will be excused from any delay or failure in performance hereunder, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, acts of terrorism, war, novelty of product manufacture or other unanticipated product development problems, disruptions of Internet service, and governmental requirements. The obligations and rights of the Party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay; provided that such Party will give notice of such force majeure event to the other Party as soon as reasonably possible.