Tourismo Digital Inc. Software Terms and Conditions

Please read the following terms of use (the “Terms”) carefully which govern use of the services made available by Tourismo Digital Inc. (“Tourismo”, “we”, “us”) to subscribers (“Customer”, “you”) who have entered into one or more software-as-a-service order forms (“Order Forms”) with Tourismo subject to these Terms. Together these Terms, Tourismo Privacy Policy, Tourismo Copyright Policy, Tourismo Data Processing Addendum and each Order Form entered into by Customer constitute the “Agreement” between Customer and Tourismo.

IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICES. IF YOU ACCESS OR USE THE SERVICES, YOU WILL BE ACCEPTING THIS AGREEMENT, AND YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS WHICH FORM A LEGAL AGREEMENT BETWEEN YOU AND Tourismo AND ITS SUCCESSORS AND ASSIGNS.

IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.

1. SERVICES, LICENSE GRANT AND RESTRICTIONS

1.1 SaaS Subscriptions

Subscription services will be deemed made available on the “Start Date” (stated in the Order Form), regardless of when you start using all or part of the services. You may need to create an account, upload assets, or provide certain information in order to start using the services. We will provide your users access to use the Service during the subscription term as described in this Agreement and the applicable Order Form.

1.2 Software License Grant

Subject to the terms and conditions of this Agreement, Tourismo grants Customer a non-exclusive, non-transferable license to access and use the features of the Service(s) as stated in your Order Form.

1.3 Restrictions

Customer shall use the Services solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Services, or any component of the same or content, scripts, methodologies, code or other know-how and intellectual property made available by Tourismo (collectively “Tourismo IP”) available to any third party, unless otherwise permitted by this Agreement. Customer shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on Tourismo IP except to the extent expressly agreed upon in writing by Customer or to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other use restrictions that are built into the Services; (c) remove any proprietary notices, labels, or marks from the Services or Tourismo IP; (d) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Services; or (e) access or use the Service in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Services.

Customer acknowledges that Customer acquires absolutely no rights or licenses to the Services or Tourismo IP other than the limited right to use the Services and Tourismo IP in accordance with the terms and conditions of this Agreement. All other use is strictly prohibited.

1.4 Privacy & Security

Personal information provided to us by Customer through the Service (whether on registration, through contact forms, to create Tourismo accounts or otherwise), is subject to Tourismo’s Privacy Policy. In addition, please be aware that because of the insecure nature of the Internet, privacy in communications cannot be guaranteed. While reasonable commercial efforts to include security features in the Services to protect the identities and the information transmitted using the Services have been taken by Tourismo, the associated risks must be considered before transmitting confidential, personal or other information with the Services. Tourismo may at times send emails to one or more email addresses provided by Customer or Customer’s users to Tourismo as a part of creating a Tourismo account or other associated Tourismo services. Tourismo will implement commercially reasonable administrative, technical, and physical safeguards designed to protect Customer personal information processed by the Services

1.5. Service Limitations

Tourismo will not be responsible for any lost data or service interruptions due to events outside Tourismo’s reasonable control. Customer is responsible for maintaining appropriate backups of Customer Content.

PAYMENT TERMS AND TAXES

2.1. Payment Term

In consideration for the receipt of the Services and the licenses and other consideration granted hereunder, Customer shall pay Tourismo the properly due Fees specified in the applicable Order Form. Fees for the Services will be invoiced annually in advance unless otherwise provided on the applicable Order Form. Unless otherwise stated, all payments shall be made to Tourismo within thirty (30) calendar days after receipt of the invoice.

2.2. Invoicing and Payment of Taxes

All charges and fees provided for in this Agreement are exclusive of and do not include any foreign or domestic governmental taxes or charges of any kind imposed by any federal, state, provincial or local government on the transactions contemplated by this Agreement, including without limitation excise, sales, use, property, license, value-added taxes, goods and services, harmonized, franchise, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties other than taxes that are imposed based on the net income of Customer. Any such taxes that are imposed shall be the sole responsibility of Customer.

2.3. Overdue Payments

Any amounts properly due and not paid by the Customer by the due date will accrue late charges each month at the rate of one and a half percent (1.5%.) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

2.4. Suspension of Services

If Customer does not pay a properly rendered invoice within thirty (30) days of the Customer’s receipt of a written notice from Tourismo that the amount is overdue, in addition to any of its other rights or remedies, Tourismo reserves the right to suspend the Services provided to Customer until such amounts are paid in full.

2.5. Changes to Fees

Tourismo may change the fees for the Services from time to time which fee change will take effect from the next billing cycle.

PROPRIETARY RIGHTS, CONTENT MODERATION AND PRODUCT SUGGESTIONS

3.1. Ownership of the Services and Tourismo IP

The Services and Tourismo IP are proprietary to Tourismo and its licensors and are protected by copyright and other intellectual property laws. All right, title and interest, including all copyright and other intellectual property rights, in and to the Services and Tourismo IP are owned by Tourismo or its licensors. Except for the rights and licenses granted in this Agreement, Customer acknowledges and agrees that any and all intellectual property rights to or arising from the software and technology used to provide the Services are and shall remain the exclusive property of Tourismo and its licensors. Nothing in this Agreement is intended to transfer any such intellectual property rights to, or to vest any such intellectual property rights in, Customer. Customer is only entitled to the limited use of the intellectual property rights granted to Customer in this Agreement. Customer will not take any action to jeopardize, limit or interfere with Tourismo’s intellectual property rights. Any unauthorized use of Tourismo ‘s intellectual property rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.

3.2. Customer Content Responsibility.

As between Customer and Tourismo, Customer and its licensors own and retain ownership of any original content that Customer provides, stores and processes through any of the Services (“Customer Content”). Customer hereby grants Tourismo a worldwide, royalty-free, and non-exclusive license during the term of this Agreement to access Customer Content in order to provide the Services, including storing, hosting and management of such content (the “Content License”). Customer understands that Tourismo, in performing the required technical steps to provide the Services, may (a) transmit or distribute Customer Content over various public or private networks and in various media; and (b) make such changes to Customer Content as are necessary to conform and adapt that Customer Content to the technical requirements of connecting networks, devices, Services or media. Customer confirms and warrants to Tourismo that Customer has all the rights, power and authority necessary to grant the above Content License and that use of the Customer Content in the manner contemplated will not breach the rights of any third party.

Customer Content. Customer is responsible for any and all Customer Content and its use of UGC, and for obtaining all necessary licenses, permissions, and consents to enable all material comprising Customer Content to be made available to and used by Tourismo for Tourismo to in the course of providing the Services to Customer. For greater certainty, Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content and UGC; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify Tourismo promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Services.

3.3. UGC

All third party photographs, images, materials, descriptions, content, videos, audio files, text files, stories, information, code, or other content, trademarks, intellectual property, handles or other data (“UGC”) that is accessed by Customer through use of the Services shall be retained by the applicable third party rights holder and subject to the rights of such third party and any applicable third party terms and conditions (e.g. Facebook, Twitter, Instagram, Localhood etc.) governing the use or access to such UGC. Customer acknowledges that Tourismo must abide by the applicable rules and regulations of the social networks from which UGC is pulled through those networks and accordingly, use and availability of content from third party social networks is subject to change at any time based on the permissions granted to Tourismo. Customer acknowledges and agrees that Customer shall be solely liable for the licensing, clearance and use of any such UGC in connection with Customer’s business and the Customer’s website(s) including without limitation, any copyrights, trademarks, right of privacy or publicity or other rights and compliance with any applicable third party terms and conditions.

3.4. Content Disclaimers

Tourismo does not guarantee the accuracy, quality, appropriateness, or fitness for any purpose of any content transmitted on or through the Services, including Customer Content or UGC. Customer acknowledges that the Services simply act as conduits for facilitating consumer engagement through the publication, dissemination, and making available of Customer Content and UGC, and that all content posted on, transmitted through, or linked through the Services is the sole responsibility of the user from whom the content originated. Customer therefore acknowledges and agrees that:

• Tourismo does not control, and is not responsible for, content made available through the Services;
• Tourismo reserves the right to review and delete any content (including Customer Content or UGC) at any time, in its sole discretion, for any reason, including without limitation, any determination by Tourismo in its sole judgment, that such content violates this Agreement, third party rights or any applicable laws;
• Tourismo has no obligation to screen, preview, censor, or alter any content;
• by using the Services, Customer may be exposed to content that is inaccurate, misleading or offensive; and
• Customer must evaluate and make Customer’s own judgment, and bear all risks associated with, the use of any content.

By using the Services, Customer agrees that it is solely Customer’s responsibility to evaluate the risks associated with the use, accuracy, usefulness, completeness, and appropriateness of the Services, and the content they may contain, or to which they may provide or facilitate access, from time to time. Under no circumstances will Tourismo be liable to Customer in any way for any content, including but not limited to Customer Content or UGC, that contains any errors, omissions, defamatory statements, or confidential or private information (including personal and health information), for any loss or damage of any kind incurred as a result of the use of any content created, submitted, accessed, transmitted, or otherwise made available on, through or in association with the Services, or for the removal of any content from the Services for any reason. For clarity, and without limiting the generality of the foregoing, Customer acknowledges and agrees that the inclusion of any content on, or the making available of any content through, the Services does not imply Tourismo’s endorsement of such content, and that Tourismo does not make any claim as to the accuracy or legality of any such content.

3.5. Privacy Responsibilities

Customer shall be solely responsible for compliance with applicable data protection and privacy laws in its collection, use and storage of any personally identifiable information via the Customer CMS or other properties.

3.6. Removal of Content by Customer

Customer may remove any Customer Content or UGC from the Services at any time through the functionality provided by the Services. Customer understands and agrees that Tourismo may retain, but not display, distribute or perform server copies of any Customer Content or UGC that has been removed or deleted. Customer Content or UGC that may have been copied or used for a derivative work may still be visible (including without limitation any content that may have been created by other authorized users). Customer must remove all Customer Content and UGC if Customer no longer has the rights required by this Agreement. In addition, Customer acknowledges that any content made available to the public may remain available on the Internet and in third party repositories after termination or expiration of this Agreement. Tourismo will have no responsibility for taking down or requiring the removal by any third party of any content made available to the public as a result of Customer’s use of the Services.

3.7. Suggestions and Machine Learning

Tourismo shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into its products, services and business any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of the Services. Notwithstanding anything to the contrary, during the Term, Tourismo shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation: data derived from Customer’s inputs, selections, actions, training and interactions in relation to the Service and Software (the “Collected Data”); and machine learning models, learned elements, biases, attributes, attribute transformations, weights and other data or works derived from the Customer Data or Collected Data (the “Learned Elements”). Tourismo shall be the exclusive owner of all intellectual property rights in such Collected Data and Learned Elements and will be free to use Collected Data and Learned Elements to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Tourismo offerings, provided that the Collected Data and Learned Elements do not contain any Confidential Information or Personal Information of Customer or identify Customer.

CONFIDENTIALITY

4.1. Definition of Confidential Information

As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

4.2. Obligations

The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care)

4.3. Compelled Disclosure

If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

4.4. Remedies

If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.

WARRANTIES, DISCLAIMER AND LIMITATION OF LIABILITY

5.1. Representations, Warranties and Covenants by Each Party

Each party represents, warrants and covenants to the other party that: (i) it is an entity, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) it has all requisite power and authority and approvals to execute, deliver and perform its obligations under this Agreement; (iii) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties; and (iv) it will perform its duties and obligations hereunder in a careful, diligent, professional, proper, efficient and business-like manner.

5.2. Tourismo Representations, Warranties and Covenants

Tourismo represents, warrants and covenants to Customer that during the Term (as defined below) it will provide the Services in a workmanlike, professional manner, at the time of initial availability to Customer there are no known viruses or destructive code in Tourismo Services and Tourismo IP does not, to Tourismo’s knowledge, infringe any third party intellectual property rights.

5.3. Customer Representations, Warranties and Covenants

Customer represents, warrants and covenants to Tourismo that: (a) Customer is either the owner or the authorized licensor of all Customer Content, Customer has all rights necessary to provide Tourismo with the Content License for use in accordance with the terms of this Agreement, and no further payments to or permissions from any third party are required in order for Tourismo to exercise its rights under the Content License; (b) Tourismo’s use of the Customer Content in accordance with the terms of this Agreement will not violate the rights of any third party, including without limitation, any trademark, trade name, patent, copyright, literary, artistic, dramatic, moral, personal, private, civil or property right, or right of privacy or publicity, or any other right of, or defame, any third party; (c) Customer’s use of UGC will not violate any applicable laws, rules or regulations, including without limitation any intellectual property, privacy and/or publicity rights and that if Customer Content is subject to third party proprietary rights, Customer has all necessary licenses, rights, consents and permissions to publish the Customer Content and grant the Content License, including permission from any persons appearing in Customer Content; and (d) Customer will not use the Services to upload, post, email or otherwise transmit or link to any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of anyone’s privacy, hateful, fraudulent, pornographic, profane, offensive, or otherwise objectionable, or that discloses personal or private matters concerning any person, restricts or inhibits any other person from using or enjoying any of the Services, expresses or implies that any statements Customer makes or actions Customer takes are endorsed by Tourismo or that indicates that Customer or any of its authorized users is an employee or representative of Tourismo, or may expose Tourismo or any of its other customers or users to any harm or liability of any type. Without limiting the generality of the foregoing, Customer represents, warrants and covenants that Customer will use the Services and Tourismo IP for lawful purposes only and in a manner consistent with all applicable local, provincial, state, national or international laws, rules and regulations including all intellectual property laws applicable to Customer Content and use of UGC. Without limiting the foregoing, Customer shall comply with Tourismo’s Copyright Policy which can be found here: Tourismo.com/copyright.

5.4. Release

Customer hereby releases, discharges and agrees to hold Tourismo, and any person acting on its behalf, harmless from any liability related in any way to Customer’s use or distribution of Customer Content or UGC.

5.5. DISCLAIMER OF IMPLIED WARRANTIES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND Tourismo IP ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, AND Tourismo, ITS LICENSORS AND PARTNERS DISCLAIM ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR COLLATERAL, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER DISABLING DEVICES, ARE ACCURATE, OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED OR THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Tourismo IS NOT RESPONSIBLE FOR ANY ERRORS IN THE CONTENT DELIVERED USING Tourismo IP OR SERVICES. CUSTOMER ACKNOWLEDGES THAT Tourismo HAS NO CONTROL OVER UGC OR THIRD PARTY SITES. THE USE OR PERFORMANCE OF THE SERVICES OR UGC IS AT CUSTOMER’S OWN RISK AND AT THE RISK OF ANY USERS.

TERM AND TERMINATION

6.1. Term

The term of this Agreement (the “Term”) will commence on the start date (“Start Date”) specified in the initial Order Form between Tourismo and Customer, and will continue for the period of time set out in such Order Form (or such later date set out in any subsequent Order Form). The Term will automatically renew for subsequent periods of time equal to the initial term, unless either party notifies the other party in writing of its intention not to renew at least thirty (30) days prior to the end of the then-current term.

6.2. Termination for Cause

Either party may terminate this Agreement if the other party materially breaches any of the terms or conditions of this Agreement and fails to remedy such breach within thirty (30) days’ notice of such breach, or immediately on written notice in the case of nonpayment by Customer.. Customer will pay in full for the Services up to and including the last day on which the Services are provided.

6.3. Effect of Termination

Upon any termination, Tourismo will make all Customer Content available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Tourismo may, but is not obligated to, delete stored Customer Content. After the data retrieval period, Customer shall not access the Services provided by Tourismo. During the thirty (30) day retrieval period, Tourismo will make available an export of Customer Content in an open, machine-readable format (such as CSV or JSON).

6.4. Survival

All sections of this Agreement which by their nature should survive termination or expiration will survive such termination or expiration, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

CHANGES TO SOFTWARE, SERVICES AND AGREEMENT

7.1. Updates to these Terms and Conditions.

Tourismo reserves the right to modify these Terms and Conditions or any of its Policies at any time by publishing the revised Terms and Conditions or Policies on the website through which the Services are made available and/or providing a copy of the revised Terms and Conditions or Policies to Customer’s account by email. The Agreement shall incorporate such revised Terms and Conditions or Policies and will become effective within ten (10) business days of such publication or provision to Customer, unless Customer expressly accepts the revised Agreement earlier by clicking on the accept button. Customer’s express acceptance or Customer’s continued use of the Services after expiry of the notice period of ten (10) business days (being weekdays excluding any statutory holidays in Ontario), shall constitute Customer’s acceptance to be bound by the terms and conditions of the revised Agreement. Material adverse changes to these Terms will take effect on the next renewal of the Term unless required by law or necessary for security, privacy, or compliance

7.2. Changes to Services

Tourismo may change the Services and/or other aspects of any of the Services at any time upon reasonable notice to Customer by posting the change on the website through which the Services are made available, sending notice via an email to the email address Customer provides on registration, a message on Customer’s invoice, in writing, or any other notice method likely to come to Customer’s attention. Customer’s continued access to and use of the Services after the change has come into effect constitutes Customer’s acceptance of the change and Customer acknowledges and agrees that (i) Customer will be deemed to have accepted the change, with no additional written agreement or express acknowledgement required; and (ii) Customer will continue to be responsible to pay for the Services, subject to Section 6.2 above. Changes may include modifications required to comply with changes in law, regulation, card-network rules, or industry standards (including but not limited to AI, privacy, or accessibility).

SUPPORT AND MAINTENANCE

8.1. Technical Support

Tourismo will provide basic support for the Services and will (i) use commercially reasonable efforts to make the Services available except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond Tourismo’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Tourismo employees), or Internet Services provider failures or delays, and (ii) provide the Services only in accordance with applicable laws and government regulations. Tourismo will use commercially reasonable efforts to maintain materially equivalent core functionality over the Term, while evolving the Services to improve performance, security, and compliance.

8.2. Maintenance Services

Tourismo will provide updates and upgrades to the technology underlying the Services from time to time to provide new features and improvements, bug fixes and error corrections which will be available across the Services.

8.3. Professional Services

One-off consulting and professional services may be requested and agreed with Tourismo. All professional services shall be defined in a statement of work. If any work product or deliverables are generated through the provision of professional services under this Agreement (“Deliverables“), the parties will determine ownership of such Deliverables in the Order Form executed for the professional services. Notwithstanding the generality of the foregoing, any enhancements, modifications or other customizations to Tourismo IP or the Services will be owned by and vest in Tourismo exclusively including all right, title and interest in and to all Deliverables including the benefit of all copyrights, trademarks, patents, trade secrets or other intellectual property rights pertaining thereto. Deliverables produced through Professional Services are deemed accepted upon delivery unless Customer provides written notice of material defects within ten (10) business days

LIABILITY PROVISIONS

9.1. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) NEITHER Tourismo NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY (WHETHER ARISING FROM THIS AGREEMENT OR RELATED TO THE SERVICES OR Tourismo IP) FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF Tourismo (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE; AND (B) IN NO EVENT SHALL Tourismo’S (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES AND Tourismo IP, WHETHER IN CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO Tourismo HEREUNDER FOR THE SERVICES COMPONENT(S) GIVING RISE TO THE APPLICABLE CLAIM IN THE 12 MONTH PERIOD PRECEDING SUCH CLAIM. Carve-outs. Notwithstanding the foregoing, the limitation of liability in this Section 9.1 shall not apply to losses or damages arising from (a) either party’s gross negligence or willful misconduct, or (b) either party’s breach of its confidentiality obligations under this Agreement.

9.2.

THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH.

9.3.

THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER Tourismo NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER’S ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO IMMEDIATELY CEASE USE OF SUCH SERVICES.

INDEMNIFICATION

10.1. Customer Indemnity

Customer agrees on demand to indemnify, defend and hold Tourismo, its affiliates and Tourismo personnel harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of Customer’s (a) breach of any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party through its ) misuse of the Services including breach of anti-SPAM legislation or the commercialization or use of UGC outside the permissions granted by the social network for such content.

11. PAYMENT PROCESSING; COMMISSION; TAXES

11.1 Payment Services and Roles. Certain Services may enable Customer to receive payments from end users (“Transactions”). Payment processing is provided by third-party provider(s) (currently Stripe Connect) and is subject to their terms, policies, and network rules (“Payment Provider Terms”). Customer is the merchant of record for Transactions. Tourismo is not a bank, money services business, or payment processor and does not hold or control settlement funds. 11.2 Commission and Fees. For each Transaction processed through the Services: (a) the gross amount paid by the end user is the “Gross Transaction Amount”; (b) Tourismo is entitled to a commission equal to ten percent (10%) of the Gross Transaction Amount (the “Commission”), deducted at the time of the Transaction; (c) the payment processor’s fees, chargeback fees, dispute fees, and other applicable charges (“Processing Fees”) are assessed by the Payment Provider; and (d) unless otherwise stated in an Order Form, Customer’s Net Payout equals (Gross Transaction Amount – Commission – Processing Fees). 11.3 Refunds, Reversals, and Chargebacks. In the event of a refund, chargeback, or reversal, the Gross Transaction Amount is returned to the end user. The Commission for that Transaction is forfeited or reversed. Processing Fees and network penalties are borne by Customer unless otherwise stated in an Order Form. Tourismo will provide commercially reasonable cooperation via available platform tools, while Customer is responsible for end-user dispute handling. 11.4 Payouts; Reserves; Offsets. Payouts of Net Payouts are made by the Payment Provider on its payout schedule to the bank account(s) or payment method designated by Customer. The Payment Provider may establish reserves or holds and may offset negative balances, disputes, or refunds under the Payment Provider Terms. Tourismo may offset amounts owed by Customer to Tourismo (including unpaid subscription or professional services fees) against amounts otherwise payable via split rules, to the extent permitted by law and the Payment Provider Terms. 11.5 Taxes. Customer is solely responsible for determining, collecting, reporting, and remitting any taxes, duties, or levies associated with Transactions. Tourismo does not provide tax advice and is not responsible for withholding or remitting taxes on Customer’s behalf. 11.6 Compliance; Prohibited Activities. Customer will comply with Payment Provider Terms, card-network rules, and applicable law (including KYC/AML requests), and will not use the Services for any prohibited business or activity listed by the Payment Provider. Tourismo may suspend Transaction processing if required by a Payment Provider, card network, law, or to prevent fraud, misuse, or material harm. 11.7 Reporting. Tourismo will make transaction-level reporting available (via dashboard and/or downloadable reports) and, upon request, will provide quarterly summaries showing Gross Transaction Volume, Commissions, refunds/chargebacks, and adjustments. 11.8 Changes. Tourismo may update the Payment Provider or Commission for future Transactions upon at least thirty (30) days’ notice. Changes apply prospectively and not to Transactions already processed. If the Payment Provider modifies its fees or terms, those changes apply as determined by the Payment Provider; Tourismo will use commercially reasonable efforts to notify Customer of material changes that impact Customer.

GENERAL TERMS

12.1. Independent Contractors

The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither party shall have any right, power or authority to create any obligation or responsibility on behalf of the other.

12.2. Prohibited Use

Use of the Services is unauthorized in any jurisdiction where the Services or any of the Customer Content or UGC may violate any laws or regulations. Customer agrees not to access or use the Services in such jurisdictions. Customer agrees that Customer is responsible for compliance with all applicable laws or regulations. Any contravention of this provision (or any provision of this Agreement) is entirely at Customer’s own risk.

12.3. Force Majeure

Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes or shortages of materials.

12.4. Publicity

Customer hereby grants to Tourismo and its affiliates the right to use, reproduce, and display Customer’s name, trademarks, brands and/or logos, in Tourismo’s professional portfolios, public and other presentations, websites, social media channels, contributor lists, and customer lists, for the purpose of promoting Tourismo’s business and professional activities. For clarity, this license includes the right to list Customer as a current or past customer of Tourismo.

12.5. Severability & Waiver

Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and the invalid, void or unenforceable portion will be severed from the Agreement. If Tourismo does not take action against all breaches of this Agreement, it does not mean that it waives its right at a later time to enforce the same.

12.6. Assignment

Customer is not allowed to assign this Agreement or any rights hereunder without the prior written consent of Tourismo, such consent not to be unreasonably withheld. Tourismo is allowed at its sole discretion to assign this Agreement or any rights hereunder to any third party, without giving prior notice.

12.7. Applicable Law and Venue

This Agreement shall be governed by and construed in accordance with the laws of British Columbia, Canada without giving effect to any conflict of laws provisions that would require the application of the laws of a different jurisdiction, whether contained in Canadian law or the laws of Customer’s current state or country of residence. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the province of British Columbia, Canada. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

12.8. Entire Agreement

The terms and conditions of this Agreement, together with any documents or terms incorporated herein by reference, constitute the entire agreement between Customer and Tourismo with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.