These Experience Pro Standard Terms and Conditions (the “Experience Pro Standard Terms and Conditions”) are incorporated into, and constitute material terms applicable to, each Experience Pro Agreement (each, the “Agreement”) executed by Xplorie and Lodging Provider as though fully set forth therein. To the extent that these Experience Pro Standard Terms and Conditions shall conflict with any provisions of the Agreement the terms contained in the Agreement shall control. Any capitalized terms not otherwise defined herein shall have the definition given to such terms in the Agreement.
1. Xplorie shall provide personnel or an automated system to perform bookings and schedule reservations for local recreation, transportation, dining, concerts, events, entertainment, tours and attractions, and other similar activities (each an “Activity” and together the “Activities”) for Guests (the “Concierge Service”). The hours of availability of the Concierge Service shall be 8 a.m. to 6 p.m. local time (for the Units) Monday through Sunday; provided however, Xplorie reserves the right to modify the hours and/or the days set forth above upon written notice to Lodging Provider. Notwithstanding anything to the contrary contained herein, Xplorie reserves the right from time to time to substitute one activity provider for another, provided that the Activity provided by the substituted provider is generally the same type of activity (e.g. one golf course for another golf course). Access and/or admission to the Activities shall be subject to the normal hours of operation of each activity provider.
2. All payments owed Xplorie hereunder shall be paid via automated clearing house or credit card. Payments made via credit card are subject to a three and one-half percent (3.5%) processing fee. Any payment not received by Xplorie from Lodging Provider within thirty-days of invoice shall be subject to a one and one-half percent (1.5%) per month late payment charge. Prior to payment, amounts due Xplorie shall be held by Lodging Provider in accordance with all applicable local, state and federal laws, codes and ordinances, including, without limitation, those applying to trust accounts (if applicable).
3. Lodging Provider shall:
a. Be responsible for remitting any and all federal, state, and local taxes that may become due as a result of this Agreement and/or as a result of providing Activities for use by its Guests (as defined below) pursuant to the terms of this Agreement, including any sales tax on Experience Pro Fees.
b. No later than eight o’clock a.m. (CST) each day, provide Xplorie (by electronic mail or other application program interface) with a daily report listing all future occupancies which contains such guest information as Xplorie shall reasonably request, including, without limitation, each registered guest’s first and last name, email address, unit occupied, dates of arrival and departure, and reservation number (collectively, the “Guest Information”). Unless otherwise agreed to by Lodging Provider, Xplorie shall not use the Guest Information or other information obtained as a result of such guest’s patronage with Lodging Provider, including email addresses and cell phone numbers, for any purpose other than that which is reasonably necessary for Xplorie to perform its obligations pursuant to the Agreement. Xplorie agrees not to share or sell the Guest Information, and Xplorie further agrees not to use such information for solicitation of guests. Notwithstanding this Section 3(b), however, Lodging Provider understands that Xplorie and/or its affiliates engages, and in the future may engage, in marketing activities that include, but are not limited to, the development of one or more websites, social media platforms, and purchasing third party consumer lists for direct and digital advertising (the “Xplorie Marketing Activities”) and that all information and customer data obtained through such Xplorie Marketing Activities shall not be deemed Guest Information.
c. On or before the 10th day of each month, provide Xplorie a monthly report (transmitted via electronic mail or other application program interface) disclosing the total number of occupied nights and reservations for the Units in the preceding month.
4. For any period of 3 or more consecutive days, or 10 or more cumulative days in any 30-day period, during which any of the complimentary Activities are unavailable for use by guests staying in the Units (each a “Guest” and collectively the “Guests”), as its sole remedy for such unavailability, Lodging Provider shall be entitled to a reduction in the Experience Pro Fees charged pursuant to the Quote. Such reduction(s), if any, shall be calculated by Xplorie and based on the portion of the Experience Pro Fee applicable to the unavailable Activity. “Unavailable” as used in this paragraph shall mean any closing for an entire day of a complimentary Activity, excluding closures due to inclement weather.
5. During the Term, Xplorie shall have the exclusive right to sell and/or distribute Activities to all of Lodging Provider’s Guests; provided, however, that any Activities sold and/or distributed to Guests shall subject to approval by Lodging Provider, which approval shall not be unreasonably withheld, conditioned, or delayed. Any consideration paid in connection with the sale of Activities (collectively, the “Commissions”) shall be the sole and exclusive property of Xplorie.
6. Each Party shall keep confidential and not disclose to any third party any Confidential Information. “Confidential Information” shall mean any non-public information obtained from the other Party that has been identified by the disclosing Party as confidential and/or proprietary at the time of disclosure or that a reasonably prudent person under the circumstances would expect to be confidential. “Confidential Information” does not include information, data or know-how that (i) is or becomes publicly available without breach of any agreement between the Parties; (ii) can be shown by documentation to have been known to the receiving Party prior to its receipt from the disclosing Party; (iii) is rightfully received from a third Party who did not acquire or disclose such information by a wrongful or tortious act; (iv) can be shown by documentation to have been developed by the receiving Party without reference to any Confidential Information; or (v) that the receiving Party becomes legally obligated to disclose to a governmental entity with jurisdiction over it (subject to the notice requirements as set forth in the Agreement). It is expressly understood and agreed by the Parties that money damages may not be a sufficient remedy for any breach of this Section 6 and that the disclosing Party shall be entitled to specific performance, including, without limitation, injunctive relief, as a remedy for a breach by the receiving Party. Such remedy shall not be deemed to be the exclusive remedy for breach of this Section 6 but shall be in addition to all other remedies available at law or equity.
7. Following the initial Term, the Agreement shall automatically renew for successive one (1) year periods, unless (i) written notice of intent to terminate is given by either party to this Agreement no later than ninety (90) days prior to the renewal date, or (ii) the activity providers that provide complimentary Activities for the Program do not renew their contracts with Xplorie and such contracts are set to expire less than one (1) year from the date that this Agreement would automatically renew. However, notwithstanding the non-renewal of contracts between Xplorie and certain activity providers, this Agreement may be renewed as to the complimentary Activities still under contract with Xplorie and listed on the Quote, subject to an adjustment for any reduction in complimentary Activities.
8. Lodging Provider shall indemnify, defend and hold Xplorie harmless from and against (i) any and all claims arising directly or indirectly from the use of the Activities by Guests, (ii) any and all claims of false or improper advertising or marketing, (iii) any other violation of consumer law for properties listed or linked by Lodging Provider on any website(s) managed by Xplorie, or any sub-pages of such website(s), and (iv) any liability arising out of any copyright or trademark infringement by Lodging Provider. Indemnification under this paragraph shall include the cost of litigation and reasonable attorneys’ fees, if any.
9. Lodging Provider and Xplorie shall at all times during the Term keep and maintain active and current policies of commercial general liability insurance with commercially reasonable coverage limits. Said policies shall be in Class “A” companies authorized to write such coverage in the state(s) in which the Units are located.
10. Other than as set forth above, this Agreement may be terminated only for failure of either party to perform its obligations or meet the conditions required by this Agreement. In the event of a breach of the terms of this Agreement, the non-conforming party must be given written notice of its deficiency or non-performance and an opportunity to correct the deficiency or non-performance within (10) days of receipt of such notice. If such deficiency is not timely corrected, the other party may terminate this Agreement by written notice to the non-conforming party. In addition to termination for such breach, the parties hereby reserve all other remedies that may be available at law or in equity, and the prevailing party in any dispute arising under this Agreement shall be entitled to recover costs, reasonable attorneys’ fees, and any interest due under the terms of this Agreement, in addition to any award of damages. Further, it is acknowledged that the Lodging Provider’s breach or early termination of this Agreement will cause Xplorie to incur substantial economic damages and losses of types and in amounts which are impossible to compute and ascertain with certainty as a basis for recovery by Xplorie of actual damages, and that liquidated damages represent a fair, reasonable and appropriate estimate thereof. Accordingly, in lieu of actual damages for such breach or early termination, Lodging Provider agrees that liquidated damages may be assessed and recovered by Xplorie against Lodging Provider, without Xplorie being required to present any evidence of the amount or character of actual damages sustained, in an amount equal to 100 times the Experience Pro Fees times the total number of Units subject to the Agreement at the time of termination (100 x Experience Pro Fees x total Units = liquidated damages amount). Such liquidated damages are intended to represent estimated actual damages and are not intended as a penalty, and Lodging Provider shall pay them to Xplorie without limiting Xplorie’s right to terminate this Agreement for default as provided elsewhere herein.
11. Excluding any similar programs which may be in place prior to the Effective Date, during the Term of this Agreement and any extensions or renewals thereof, and for a period of five (5) years following the termination of this Agreement, Lodging Provider shall not offer, or participate in, any program in which Lodging Provider pays a fee as consideration for activities offered to guests without regard to the use or non-use of such activities by Guests in any of its Units. This clause shall not apply to participation by Lodging Provider in “program packaging” or “reselling” by which a Guest may pay an additional fee or other charge to receive specific activities based upon the Guest’s actual use of such activity.
12. For purposes of this Agreement, a Monthly and/or Long-Term Rental shall be deemed to be a rental of twenty-eight (28) or more consecutive nights.
13. In the event that (i) Lodging Provider has more than one Experience Pro Program, and/or (ii) Lodging Provider has Units subject to an Experience Light Agreement, it is agreed that each Unit shall be assigned to only one solution (i.e. Experience Pro or Experience Light) and in the event of Experience Pro, to only one (1) Program. Assignment of Existing Units shall be communicated to Xplorie prior to the Commencement Date and any new Units added during the Term of the Agreement shall be assigned and communicated to Xplorie within one (1) week of their addition. Once completed, Unit assignments may not be modified without the express written consent of Xplorie.
14. In any controversy or claim arising out of, or relating to this Agreement, or its breach, (i) venue shall lie exclusively in the state and federal courts of Okaloosa County, Florida, and Lodging Provider expressly waives any defenses to such jurisdiction and venue, and (ii) the prevailing party shall be entitled to recover, in addition to any award of damages, costs, reasonable attorneys’ fees including such fees and costs incurred on appeal, and any interest due under the terms of these Experience Pro Standard Terms and Conditions.
15. Lodging Provider shall not make use of the logo or name of any company providing an Activity, whether in broadcast or print advertisements, promotions, brochures or literature of any kind without the prior written authorization of such company being obtained for the specific use in each instance in which Lodging Provider desires to use the name or logo.
16. Any notice required or desired to be given under this Agreement shall be deemed received if in writing and sent by electronic mail to the email addresses for the parties set forth in this Agreement, or such other email address as either party may designate from time to time.
17. Any waiver of a breach or failure to enforce any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
18. Lodging Provider may not assign its rights or delegate its duties or obligations under this Agreement without the prior written consent of Xplorie. The parties’ rights and obligations under this Agreement shall inure to the benefit of, and shall be binding upon, the parties’ successors and approved assigns. Moreover, in the event of any proposed sale of all or substantially all of Lodging Provider’s assets, such sale shall be strictly conditioned upon the purchaser of such assets’ assumption of Lodging Provider’s rights and obligations hereunder. Lodging Provider hereby consents to the assignment of rights and delegation of duties arising under this Agreement by Xplorie to any entity with which Xplorie may merge or by which Xplorie may be acquired.
19. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements, understandings, negotiations, and discussions, whether written or oral, between the parties regarding the subject matter hereof. Except as expressly provided in Paragraph 21 below, no amendment, modification, or waiver of any provision of this Agreement will be effective unless in writing and signed by the parties hereto.
20. The parties agree that if there are any typographical errors, mathematical mistakes, or other obvious “scrivener” errors in the documentation prepared in connection with this Agreement or the Activities, the parties agree to make appropriate corrections in good faith, and each party hereby further agrees and covenants to execute and deliver to the other such documents as may be reasonably required and/or requested by Xplorie to accomplish the correction of such mistakes or errors.
21. At any time and from time to time during the Term Xplorie may amend and update these Experience Pro Standard Terms and Conditions as determined in Xplorie’s sole and arbitrary discretion, provided that Xplorie shall give reasonable notice to Lodging Provider of any material changes that may adversely affect Lodging Provider, in which case Lodging Provider, as its sole and exclusive remedy, may elect to provide written objection to such material change within thirty (30) days of receipt of such notice and thereafter Xplorie shall have the option to either revise/retract such proposed change or terminate this Agreement which election shall me made no later than that date which is thirty (30) days following receipt of Lodging Provider’s objection.
