ENSEMBLE TRAVEL LTD. WEBSITE PROGRAM AGREEMENT



This agreement (this “Agreement”) commences on            , 20         (“Effective Date”) and is between Ensemble Travel Ltd. (“we”, “us” and “our”, as the case requires) and           (“you” and “yours”, as the case requires).

Background

1.     By signing this document, you agree to the terms of this Agreement outlined below. Please read everything very carefully before you sign. If you need any help in understanding Our Services and what they include, be sure to ask us any questions that you may have before you sign up with us. In return for paying the amounts detailed in this Agreement and complying with all of the other terms contained in this Agreement, we will provide you with Our Services and access to the System.

2.     The following words and phrases have particular meanings in this Agreement:

a.          “Agreement” has the meaning given to it in the introduction.

b.          “Content” has the meaning given to it in in Section 20.

c.          “Effective Date” has the meaning given to it in the introduction.

d.          “Laws” has the meaning given to it in Section 5.

e.          “Our Services” means the web site development and web hosting and related services that are detailed in Appendix “A” to this Agreement.

f.           “Rights” has the meaning given to it in Section 20.

g.          “System” means the combination of computer hardware, software and data transmission facilities used by us which will permit your computer system(s) to communicate with our facilities and to access your data.

Our obligations to you

3.     We will perform Our Services in a professional and workmanlike manner that is consistent with generally accepted information technology standards.

4.     We will work hard to ensure that the System is kept in good condition and repair, and that it is properly maintained and serviced. We cannot guarantee continuous availability of the System and your data. Where applicable, we will work with our suppliers and vendors to ensure that they keep the System available as they have committed to us that they will.

5.     The privacy of your data in the System is of the utmost concern to us. To the extent that we may have access to or maintain the same, we assure you that our collection, use and retention of your data will be strictly limited to the provision of Our Services and all written instructions provided by you to us from time to time, as well as all applicable federal, provincial, state and local laws, regulations and requirements ("Laws") of all relevant governing authorities. We will use our best efforts to ensure that your data is kept confidential in a secure environment at our site(s). We will store your data until such time as you instruct us to send it on to you. You are free at any time to instruct us to send it on to you, and in the latter case we will comply with your instructions as promptly as we can.

Terms relating to your use of the System

6.     Your rights to use the System are described throughout this Agreement. Your compliance with all of the terms of use of the System is essential to the effective operation of the System and to your continued right to use it.

7.     It is up to you to ensure the accuracy and content of any information provided by you to us and on which we must rely in order to provide Our Services to you. It is also up to you to ensure that your use of your data complies with all applicable Laws.

8.         In addition to your other obligations under this Agreement, you and we may agree to other obligations on your part. Any such additional obligations will be agreed to in writing pursuant to Section 35.

9.         Because the Internet is such a dynamic environment, computer technology changes so quickly and our hardware, software and data infrastructure are supplied and maintained in part by others, we may have to make changes to this Agreement or any part of it from time to time. These changes may affect the prices charged by us or the terms of your use of the System. We will bring any changes to this Agreement or to our prices charged to you by giving you 15 days advanced written notice. You can either accept the changes we make or terminate this Agreement. Your right to terminate this Agreement is detailed in Section 31.

10.     To facilitate the development of your website, upon your written request we can provide you with a sample set of website terms and conditions regarding the use of your website. You understand that it is entirely your responsibility and obligation to ensure that any website terms and conditions that you decide to use, whether they be the sample terms and conditions that we may provide you, or any others, are fully compliant with all Laws. We do not accept any responsibility, obligation or liability whatsoever in this regard.

11.     It is up to you to obtain all of the computer hardware and software that you require to connect to our System. From time to time we may make changes to the System and its configuration. If you do not update or enhance your computer hardware and software accordingly, you may not be able to access the System. In such a case, you can terminate this Agreement under Section 31. We cannot be responsible for the installation, operation or maintenance of any of your computer hardware or software. We urge you to make regular backups of all data, files and other materials.

12.     You agree that your use of the System is at your own risk. You understand that this means, among other things, the following:

a.          When you use the System your information will be transmitted over a medium that is beyond our control and jurisdiction, and we do not accept any liability for or relating to any causes except as stated in this Agreement.

b.   The System is provided on an “as‐is, as available basis”. Other than as expressly stated in this Agreement, we specifically disclaim all warranties, express or implied, statutory or otherwise, including warranties of merchantability and fitness for a particular purpose, unless such warranties are legally incapable of exclusion.

c.   Other than as expressly stated in this Agreement, we cannot be liable for any actual, direct, indirect, consequential, special, incidental, punitive or other damages of any kind or nature whatsoever. In providing Our Services and your use of the System, we specifically disclaim all loss and liability resulting from, but not limited to:

i.     loss of data;

ii.    loss of software or hardware;

iii.  loss or liability arising from access delays, interruptions or corruption of data;

iv.  loss or liability resulting from viruses, worms, trojans or other malicious programs or code;

v.    loss or liability from data non‐delivery or data mis-delivery;

vi.  loss arising from any breach of security or confidentiality concerning your data;

vii. loss arising from business interruption;

viii.loss of profits, goodwill or expected revenues;

ix.  any other loss or liability resulting from our negligent acts and/or omissions or from those of any third parties including, but not limited to, our employees, directors, agents, customers, vendors and suppliers;

x.    loss or liability resulting from any errors, omissions or misstatements in any and all information, goods or services obtained on or through the System; and

xi.  loss or liability arising from acts of God whether claimed by you or any other person, even if we have been advised of the possibility of any of the foregoing by you, which arise out of the provision of Our Services or your use of the System.

d.   You understand and agree that our total liability to you and the sum of all of your remedies against us will in all events be limited to the lesser of: (a) the total amount paid by you to us under this Agreement; or (b) $1,000.00.

e.   The limitations of liability in this Agreement shall apply regardless of how any claim, action or proceeding against us is brought, whether based on breach of warranty, contract, tort, fundamental breach or any other legal theory.

13.     You agree that we may publish Content (defined below) onto the System and your public facing website without prior approval by you. This Content may include third party advertisements or other Content and such Content shall not be amended, disrupted, or removed by you for any amount of time or in any manner without our express written consent.

14.     Indemnification ‐ You agree to defend, indemnify, and hold us and our affiliates, and all of our and our affiliates’ directors, officers, employees, agents, suppliers and vendors harmless from all liabilities, claims and expenses, including without limitation reasonable attorneys' fees, arising from:

a.  any act or omission by you as it relates to Our Services;

b.  any violation of Laws by you;

c.   any acts of fraud, negligence or willful misconduct by you in connection with this Agreement;

d.  any fraudulent activity committed through your use of Our Services (for example, you will indemnify us for any fraudulent bookings occurring through your website); and

e.  any breach by you of the terms of this Agreement.

You also agree that we have the right, but not the obligation, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you pursuant to this Section. In such event, you shall have no further obligations pursuant to this Section.

15.     You are solely responsible for securing your username and password. You are also solely responsible for changing your password as required to assure secure access to the System. If you need help to change your username or password, contact our technical support team and they will assist you. It is also up to you to register at your expense any domain name(s) that you intend to use.

16.     Once we have returned to you our signed and dated copy of this Agreement, we may list you as one of our clients at our website, or otherwise advertise that we provide Our Services to you. You understand that and expressly grant us permission to do so.

17.     You are solely responsible for your use of the System, and any statement you or any users of yours make on the System. You specifically agree not to use the System in any manner that is illegal, libelous, or against our on‐line policy statement (if any) in effect from time to time. You may only use the System for lawful purposes and in accordance with applicable Laws. The compilation, transmission or publication of any information, data or material in violation of any local, provincial, state federal or international regulation, law or treaty is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, patent, common law, or any proprietary interest of others or any harassing, threatening, pornographic or obscene material.

18.     As you will have access to the System and the ability to make changes to your website, we cannot and do not supervise or review your Content, and we assume no responsibility to do the same. However, we do reserve the right, but not the obligation, to remove or change any materials on the System we consider infringe any restrictions on your use which appear in this Agreement. Such materials may be removed at any time upon receiving a complaint or notice of infringement of Rights, as defined in Section 20.

19.     You shall ensure that your use of the System shall not disrupt us, our agents, service providers and/or our associated networks or equipment forming part of the System. You shall not transmit any communication where the meaning of the message, or its transmission or distribution, would violate any applicable law, regulation or treaty or would likely be offensive to the recipient. Once your site is activated, you must at all times use your best efforts to respond promptly, courteously and accurately to all of your customers’ inquiries regarding Content appearing on your website and your customers’ use of your site. Use of the System in violation of Sections 17, 18 and 19, or any other use in a manner that is inattentive, disruptive, damaging to us or to any third parties, unlawful, offensive, or intrusive as determined by us shall be considered a breach of this Agreement and may result in termination.

Copyright and Other Rights

20.     Through the System you may have access to information, communications, software, trade secrets, know-how and other materials and services (“Content”) that are protected by patent, copyrights, trademarks, trade secret and intellectual property rights, and other proprietary rights ("Rights") of ours and third parties who make such Content available on or through the System. You agree that your use of the Content shall be governed by all applicable Laws, regulations and treaties, and by the specific restrictions placed on such Content by the owners or licensors of the Rights in such Content. So long as you do not violate our Rights or the Rights of any third party, content that you develop and post will remain your property and we will not assert any rights in or to it.

21.     You agree not to post or transmit Content that is subject to another party's Rights on or through the System without that party's express permission. Such posting or transmitting may result in termination of this Agreement and civil or criminal liability.

22.     You agree to upload to software files information, data or otherwise post or transmit on or through the System only such Content that is not subject to any Rights, unless you have received express authorization to distribute such Content on or through the System by the holder of such Rights.

23.     You will appreciate that it is extremely important to us that we protect our Rights and those valuable patents, copyrights, trademarks, trade secrets, know-how and other intellectual property rights that we have in the System. Therefore, you understand and agree that nothing in this Agreement confers on you any right, title or interest in or to our Rights. You also agree that you will not, nor will you attempt, directly or indirectly, to reverse engineer, decompile, modify or adapt any of our Content that is protected by our Rights.

24.     Other than our own Content, we do not endorse the Content of any websites, whether on the System or linked through the System to other websites on the Internet. We are not responsible for the Content of linked sites or sites framed within the System, and your use of them is entirely at your own risk. For greater certainty, we are not responsible for the travel products made available through Our Services, it being understood that vendors for such services are solely responsible for the fulfillment, customer services and all other issues that may arise pursuant to a travel booking. If a customer is refused services by a vendor due to an oversale, lack of record of sale or otherwise, your sole remedy will be that remedy that is provided for by such vendor in the vendor contract applicable to you and/or the end customer.

25.     You also agree that by transmitting Content to any public area, you are requesting us to make that material available to other users of the System and other internet users, and that such access will result in copies of your Content being accessed by or transmitted to others. To permit us to publish your Content, you hereby grant, or represent that the owner of any such Content has expressly authorized you to grant, us a worldwide, royalty‐free, perpetual, irrevocable, non‐exclusive right and license to reproduce, publish, distribute, perform, display and link to such Content (in whole or in part) to service your request.

26.     You acknowledge that by reason of your relationship with us under this Agreement, you may have access to our confidential information. You agree to maintain in confidence all confidential information received from us, both oral and written, and agree not to disclose or otherwise make available such confidential information to any third-party without our prior written consent. You agree to use any confidential information received from us solely for the purpose of performing your obligations under this Agreement. You cannot use of our brand or logo or any other materials that are our copyright, trademark or trade-name materials without our express written consent and you may not link to any of our website(s) without our express written consent.

Charges for your use and taxes

27.     Charges for your use of the System and Our Services are outlined in Appendix “A”.

28.     All amounts payable by you to us must be paid within 30 days of the date of our invoices to you. Late payments will be bear interest at 5% per month.

29.     In addition to all of the charges you must pay, you are also responsible for all applicable taxes, including, as applicable, any federal, state provincial, HST/GST, local, VAT and excise taxes which may be imposed in connection with the provision of Our Services and your use of the System.

Term and Termination

30.     This Agreement commences on the Effective Date and shall remain in effect for a period of one (1) year. This Agreement will automatically renew for successive one (1) year periods unless either of us terminates this Agreement earlier in accordance with the terms of this Agreement.

31.     Both of us have the right to terminate this Agreement as follows:

a.             You can terminate this Agreement in the event we have materially breached the terms of this Agreement and we have not cured such breach within 30 days of receiving notice of such breach.

b.             We can terminate this Agreement at any time for any reason by giving you 30 days prior written notice. If we terminate you pursuant to this Section 31(b), then you will pay us for any amounts, invoiced by us or otherwise, owed by you up to and including the date of such termination.

c.             If, in our opinion, you have breached any of the provisions of this Agreement, we may terminate this Agreement with or without notice. If we terminate you due to your breach of any provision of this Agreement, then you will pay us the total amount due under this Agreement, less all amounts paid by you at the date of such termination.

d.             This Agreement terminates automatically upon the termination of your Ensemble membership. In such an event, you will pay us the same amount that you would be obliged to pay us if we had terminated this Agreement for cause under Section 31(c) above.

e.             We may incur certain costs upon the termination of this Agreement. In addition to any other rights or remedies that we may have at law or under this Agreement, Appendix A details certain cancellation charges that will apply in the event of the termination of this Agreement.

General

32.     You agree that this Agreement comprises the entire understanding between you and us, and supersedes any prior written or oral agreements, representations and communications between you and us with respect to this Agreement.

33.     You agree that if any portion of this Agreement is held invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible to reflect the original intentions of you and us, and the remaining portions will remain in full force and effect.

34.     This Agreement will be governed by the laws of the Province of Ontario and the laws of Canada applicable to them, excluding its conflicts of law rules. You and us both submit to the exclusive subject‐matter jurisdiction, personal jurisdiction, and venue of the courts of the Province of Ontario.

35.     All notices to be delivered by either you or us under this Agreement will be sent by mail, courier, facsimile or e‐mail. All changes to Our Services, or requests by you to us for additional services or solutions under this Agreement will not form part of this Agreement until expressly agreed to by us, including written confirmation to you stating that such additional services or solutions form part of this Agreement.

36.     You can’t assign, transfer or sublicense your rights under this Agreement without our prior written consent, which we can withhold in our sole discretion.

37.     Sometimes things happen that are completely outside of our control and which could prevent us from performing our obligations under this Agreement, such as: acts of God, fire, catastrophe, acts of terrorism, governmental prohibitions or regulations, viruses, strikes, lockouts, work stoppages or other labor difficulties and so forth. In such cases, our time for performance of our obligations will be extended by the delay resulting from the event in question, unless either of us decides to terminate this Agreement.

38.     If you decide to make a claim against us for any reason whatsoever, you must do so by the earlier of: (i) no later than within the time period permitted by applicable law; and (ii) 90 days after the date on which this Agreement expires or is terminated.

39.     The rights and obligations of the parties herein shall survive any expiration or termination of this Agreement to the extent expressly provided herein or as otherwise reasonably required to give effect to the provisions hereof. In particular, the rights and obligations of the parties under those Sections relating to ownership of documents and work product, clearance for publication, confidential information, and indemnification shall survive the expiration or termination hereof.

40.     We agree with you that this Agreement may be transmitted and accepted by facsimile, electronic mail or similar device and the reproduction of signatures by such means will be treated as binding as if originals, and both you and we agree to provide each other with a copy of the Agreement bearing original signatures immediately upon demand.

41.     You only have the rights set forth in this Agreement to use Our Services. This Agreement creates no relationship between you and us other than as expressly stated herein. Specifically, this Agreement creates no relationship between you and us as independent contractors, partners, joint ventures, fiduciaries, agents or employees.

  ENSEMBLE TRAVEL LTD.

By: ______________________________

Name:

Title:

 Name of Agency:

By (Signature):

                                                                                                                      Name:

Title:

Date:

APPENDIX “A”

The following outlines the specific services to be provided to you under the terms of this Agreement:

1.     Your Website Set up and Customization.

a.  As part of setting up your website, we will provide you with up to 2 rounds of customization at no additional charge to you. This means that we will take an initial set of instruction from you in respect of the matters outlined below, and then, if required, will perform up to 2 additional rounds of changes to the below listed matters, unless, in our sole discretion, your instructions would require us to expend an unreasonable amount of time or resources to effect the changes you seek, in which case we will so notify you. If you elect to proceed after such notification from us, then you will be obliged to pay us our normal charge out rate (“Normal Rate”) for such work as indicated below. The matters on which we will take instruction from you are as follows:

i.      Theme and logo design. You must provide us with your logo in .psd, .eps, .jpg or .gif formats.

ii.    Navigation and page edits. We will perform up to 2 iterations of top navigation edits, which shall include only the following: adding new tabs; suppressing existing tabs; designing custom name tabs; connecting to supplier booking sites, other websites or story or topic pages.

iii.   Privacy Policy. We will perform up to 2 iterations of your privacy policy as provided by you to us.

iv.   Terms of Use. We will perform up to 2 iterations of your terms of use as provided by you to us.

b.  Any work that takes or would take more than 30 minutes of customization services will result in notification from us. If you elect to proceed after such notification from us, then you will be obliged to pay us our Normal Rate for such work.

c. Our Normal Rate is $125.00 per hour (or portion thereof) for any rounds of customization services beyond the 2 iterations permitted in this section, or for any customization services other than as listed above.

2.   Participation Fee and Additional Services and Solutions.

a.  We will charge you a yearly rate, exclusive of applicable taxes, for use of Our Services

b.  We may provide further services or solutions, or may cease to provide any or all of the foregoing additional services or solutions. Any such change to Our Services and solutions will be made known to you in accordance with the terms of this Agreement. Participation fees under subsection 2(a) above will be billed yearly, and will be pro‐rated for your first year of participation only.

c. Our billing to you will commence upon activation of your website, which means the date on which your website goes live on the web, or two months after your signed agreement has been received. Our participation fees are non‐refundable.

4.       Return of Data. If you instruct us to return your data to you pursuant to this Agreement, we will execute your instruction to do so only after we have your written agreement that you will pay our costs for such return, including, but not limited to expenses for our purchase of the necessary hard drive to be used by us to load and store your data, our time in loading and storing your data and preparing it for shipment, and the courier costs associated with shipping the hard drive with your data on it to you.

5.       Other Fee Issues. Note that all fees stated herein are based on 2024 rates and are subject to change in accordance with the terms of this Agreement. Fee changes will be communicated to you by email.