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LITHODOMOS HERITAGE CLUB SERVICE AGREEMENT

This Heritage Club Service Agreement (“Agreement”) is by and between you (“Heritage Member”) and LithodomosVR Pty. Ltd. (A.C.N. 613 132 371), an Australian company, having its offices at P.O. Box 136, Prahran, Victoria, 3181 AUSTRALIA (“Lithodomos”).

Heritage Member accepts all of the terms and conditions of this Agreement. If Heritage Member is entering into this Agreement on behalf of a company or other legal entity, Heritage Member represents that it has the authority to bind such entity to these terms and conditions, in which case the term “Heritage Member” shall refer to such entity. Please carefully read the following terms and conditions.

Overview: Lithodomos creates, selects, contracts, compiles and maintains a database of tours, activities and other travel-related destinations services that are provided by Lithodomos and third-party suppliers (“Lithodomos Products”). The Heritage Member wishes to display the Product Information and promote the Lithodomos Products via the Heritage Member Site, and Lithodomos will manage the pricing, images and content of the Product Information and will process all Transactions for the Lithodomos Products.

1. DEFINITIONS

1.1. “Confidential Information” means a party’s confidential and proprietary information, including but not limited to information relating to the Disclosing Party’s (and its Heritage Member affiliated companies and entities) services, financial matters, pricing, HTML links, Lithodomos Link, Lithodomos Site, Redemption Code, Product code, Lithodomos brand and logo, products, operations, research and engineering processes, and the terms in this Agreement.

1.2. “Customer” means a user that completes a Transaction via the Lithodomos Site.

1.3. “Customer Information” means personally identifiable information of Customers, which may include name, address, phone number, e-mail address, date of birth, credit card information, driver’s license number, account numbers, PINs and/or passwords, and any other information that could reasonably identify a person.

1.4. “Disclosing Party” means the party disclosing its Confidential Information to the other party.

1.5. "HTML links" means links made available to the Heritage Member by Lithodomos which the Heritage Member shall display on the Heritage Member's Site(s) and which shall link such to the Lithodomos' Site.

1.6. “Heritage Member Site” means any website, channel and/or mobile application owned, operated or maintained by Heritage Member including social media and email distributions that have received prior approval in writing from Lithodomos.

1.7 “Product Information” means all information regarding a Lithodomos Product that Lithodomos makes available in connection with the offer and sale of the Lithodomos Product, including the Lithodomos brand and logo, titles, descriptions, 360-degree reconstructions, images, maps, videos, currencies, Product codes, HTML links, Lithodomos Link, Lithodomos Site, Redemption Code, supplier information, guide information and terms and conditions of purchase, amendment, cancellation, refund and redemption.

1.8 “Receiving Party” means the party that receives Confidential Information of the other party.

1.9 "Referral Fee" means a fee paid to the Affiliate in respect of a Transaction as described in Section 6.1. and is inclusive of all taxes, insurances and other fees.

1.10 “Purchase” means the purchase of a Lithodomos Product by a Customer.

1.11 “Retail Rate” means the rate at which a Lithodomos Product is sold to a Customer.

1.12 “Supplier” means the provider of a Lithodomos Product.

1.13 “Transaction” means one or more completed Purchases by a Customer on the Lithodomos Site, that originate from a click of a HTML link on the Affiliate Site within the validity of the purchase being that which is recorded by Lithodomos as being originated from a click on that HTML link on the Affiliate Site.

1.14 "Undesirable Material” means any material that a reasonable person may regard as offensive or that is illegal including, but not limited to defamatory or potentially defamatory, abusive or indecent material, expressions of bigotry, racism, sexism, ageism, hatred or profanity, information about illegal activities, material promoting harm or injury to any group or individual, any material likely to breach confidence, copyright, privacy and other rights and/or any material that is defined as prohibited content or potentially prohibited content or is illegal content under applicable laws in any jurisdiction.

1.15 “Lithodomos Link” means Lithodomos’ proprietary application Programming interface designed to enable the Affiliate to access the Product Information.

1.16 “Lithodomos Site” means a website, hosted by Lithodomos and which may be linked from the Affiliate Site via HTML links enabling a Customer to complete a Transaction.

1.17 “Redemption Code” means an electronic code created by Lithodomos that a Customer will enter on the Lithodomos Site to redeem a Purchase.

2. License; Intellectual Property; Privacy; Data Security; Undesirable Material

2.1. License. Subject to the terms and conditions of this Agreement, Lithodomos hereby grants the Heritage Member with a royalty-free, world-wide, limited, non-transferable, non-assignable, non-exclusive, revocable license for the Term to access and use the Lithodomos Product and/or Lithodomos Link solely to use, reproduce, incorporate, integrate and display the Product Information and/or HTML links on the Heritage Member Site for the sole purpose of promoting the Lithodomos Product to prospective Customers and directing such prospective Customers to the Lithodomos Site. The foregoing license is personal to the Heritage Member and the Heritage Member may not assign, mortgage, charge or grant any liens or other rights in or to the license rights or otherwise transfer or sublicense the licensed rights without the prior written consent of Lithodomos. Without limiting the generality of the foregoing, the Heritage Member may not allow the display or use of the Product Information through any website or system other than the Heritage Member Site that has received prior approval in writing from Lithodomos.

2.2. Intellectual Property. The Heritage Member agrees and acknowledges that the Customer Information, Lithodomos Link, the Lithodomos Site, the Product Information, and all information and materials related thereto, and intellectual property rights therein and thereto, are the sole property of Lithodomos or its licensors, and the Heritage Member may not display, use or reproduce such materials, technology and information for any purpose, other than as expressly set forth in this Agreement.

2.3. Prohibited use of Names. A party’s domain name(s) shall not contain the word of the other party’s domain name(s) (or any similar misspelling of) nor contain words relating to the other party, or to trademarks of the other party. Either Party is not authorized (directly or indirectly) to purchase, acquire, use or integrate trademarked terms or keywords (including variations and misspellings) that are identical or strikingly similar to those used by the other party or Heritage Members, or any related internet-domain names in association with advertising through paid search entries or other forms of online-advertising on platforms of third parties.

2.4. Permitted Use of Names. Each party grants to the other party the right to display that party’s names, logos, marks and trademarks only for the purpose of advertising the distribution Heritage Membership, identifying the source of the Product Information and the parties’ responsibility for Customer service, or for similar commercially reasonable purposes. Each party will submit to the other party all proposed uses of the other party’s names, logos, marks and/or trademarks, and will not publish or otherwise engage in any use the same without the other party’s prior written consent. In addition, neither party will issue a press release or similar public announcement that uses the other party’s names, logos, marks or trademarks without the prior written consent of the other party.

2.5. Privacy; Data Security. Each party shall have a privacy policy in place that meets or exceeds any applicable laws, rules and regulations governing the use of personal data. Both parties shall ensure that any collection, use and disclosure of information obtained pursuant to this Agreement complies with all applicable laws, regulations and privacy policies. Each party agrees not to send any unsolicited commercial email or other online communication (e.g., "spam") to any person.

2.6. Undesirable Material. The Heritage Member shall ensure that the Heritage Member Site is not used to send, receive, upload, download, use or reuse any Undesirable Material.

2.7. Feedback. The Heritage Member acknowledges and agrees that Lithodomos’ and its Heritage Member affiliated websites may implement mechanisms that allow Customers to rate and provide feedback, reviews and commentary regarding the Lithodomos Products and agrees that all such ratings, feedback, reviews and commentary are owned by Lithodomos.

3. Lithodomos Product

3.1. Product Information. Lithodomos shall use reasonable commercial efforts to ensure the accuracy of the Product Information, however, the Heritage Member acknowledges that Lithodomos may not be able to verify that all Product Information provided by Suppliers is accurate or timely and Lithodomos disclaims all liability with respect thereto.

3.2. Product Display. The Heritage Member may present the Lithodomos Products to prospective Customers by establishing HTML links from the Heritage Member Site to the Lithodomos Site or by accessing Product Information using the Lithodomos Link, and is authorized by Lithodomos to promote the Lithodomos Products as set forth herein.

3.3. Display. The Heritage Member may display all or some of the Lithodomos Product through the Heritage Member Site, but must display all Product Information for any displayed Lithodomos Product in a prominent position on the Heritage Member Site. The Heritage Member may not alter, modify or amend the Product Information in whole or in part without obtaining Lithodomos’ prior written consent. The Heritage Member will promptly correct any errors or inaccuracies of which Lithodomos notifies the Heritage Member except for cases where the Heritage Member uses the Lithodomos Link. The Heritage Member shall not systematically analyse or extract information (including guest reviews) from the Lithodomos Site or any Heritage Member affiliated site and shall not copy, in whole or in part, the look and feel or content of the Lithodomos Site or any Heritage Member affiliated site, except as expressly otherwise permitted by Lithodomos or through the use of the Lithodomos Link.

3.4. Link. Lithodomos agrees to use reasonable commercial efforts to make the Product Information available via the Lithodomos Link and the Lithodomos Site; provided, however, that Lithodomos reserves the right to restrict, suspend or terminate use of the Lithodomos Link at any time.

3.5. Marketing obligations. The Heritage Member agrees to display the Lithodomos brand and logo on their email signatures and include the Product Information for one or some or all of Lithodomos Product in electronic direct marketing campaigns on a minimum basis of one per quarter.

4. Transactions / Cancellations

4.1. Transactions. Upon completion of a Transaction, Lithodomos will provide the Customer with an electronic acknowledgment and access or Redemption Code for each Transaction.

4.2. Payment for Purchase. Lithodomos will be the merchant of record in all Transactions and will be responsible for charging and collecting all amounts payable for Transactions from Customers. Lithodomos shall be responsible for all credit card merchant fees and credit card chargebacks associated with a Transaction. Lithodomos shall be responsible for forwarding payment for a Purchase to the applicable Supplier.

4.3. Amendments, Cancellations and Refunds. All requests for Purchases from Customers are subject to acceptance by Lithodomos in accordance with the Lithodomos Product’s terms and conditions. The Lithodomos Product shall be subject to individual cancellation penalties, which vary and are detailed online via the "Terms and Conditions" link for each Lithodomos Product.

5. Support

5.1. Support. Lithodomos will provide Customers with 24x7x365 email-based service for the purpose of attending to and resolving issues associated with a Lithodomos Product or Transaction. Lithodomos will provide the Heritage Member with 24x7x365 email-based support for the purpose of attending to and resolving technical issues.

5.2. Lithodomos makes no guarantee, warranty or representation as to the service levels set for responses times or time to resolution pursuant to this Agreement.

6. Donations; Payment

6.1. Subject to any credit, cancellation or refund of a Transaction, Lithodomos at its sole discretion may elect to make a Donation to the Heritage Member for each Transaction. If Lithodomos elects to make a Donation to the Heritage Member such Donation shall be based on 10% of the actual received retail price of each Lithodomos Product purchase availed (net of all cancellations and partial or full refunds) by each Customer. In the event that Lithodomos elects to make a Donation such Donations will be paid quarterly prior to the end of the month immediately following the travel date applicable to the Lithodomos Product that is the subject of each Transaction. In the event that Donations due in any given quarter are less than one hundred United States dollars (US$100.00), then payment will be withheld until such time as the total Donations due are equal to or greater than fifty United States dollars (US$100.00) or its equivalent in a calendar quarter. In the event of termination, cancellation or expiry of this Agreement, Lithodomos may pay the Heritage Member any outstanding Donations due to the Heritage Member which were withheld by Lithodomos pursuant to the immediately preceding sentence.

6.2. Lithodomos makes no guarantee, warranty or representation as to the amount of the Donations that may be generated by Heritage Member pursuant to this Agreement.

6.3. Lithodomos will pay the Heritage Member the Donation in accordance with the following procedure:

    • 6.3.1. within seven days of the end of each month, Lithodomos will make a report available via the Lithodomos Self Serve Console summarising the Purchases for the prior month;

    • 6.3.2. Lithodomos will, unless Lithodomos disputes the invoice, pay the Donation in accordance with clause 6.1 using an agreed payment method.

6.4. Lithodomos is entitled to accrue all applicable Donation and withhold payment until payment is due under clause 6.1.

6.5. Lithodomos will not be required to make the Donation in instances where a Transaction does not complete or is rejected, withdrawn or terminated for any reason.

6.6. Lithodomos may in its absolute discretion and to the extent allowed by law determine the method for payment of the valid tax invoice in clause 6.3 by giving seven (7) days notice to the Heritage Member.

6.7. The Heritage Member is responsible and liable to pay all taxes, insurance, currency, bank and other transfer fees and other fees pertaining to the Donation and payment.

7. Confidentiality

7.1. Confidentiality Obligation. The Receiving Party will treat the Confidential Information of the Disclosing Party as secret and confidential. The Receiving Party may not, without obtaining prior written approval of the Disclosing Party, use, copy or disclose to any third party any of the Disclosing Party’s Confidential Information except for the purpose of exercising its rights or performing its obligations pursuant to this Agreement; provided, however, that the information identified in each of the following items shall not be considered Confidential Information:

    • 7.1.1 any information that is already known to the Receiving Party at the time of disclosure or acquisition;

    • 7.1.2 any information that is already in the public domain through no fault of the Receiving Party at the time of disclosure or acquisition;

    • 7.1.3 any information that becomes publicly known after disclosure or acquisition through no fault of the Receiving Party;

    • 7.1.4 any information that is lawfully and independently developed or acquired by the Receiving Party without reference to the Confidential Information;

    • 7.1.5 any information disclosed pursuant to applicable law; or

    • 7.1.6 information that is obtained from any third party who has a right to make such a disclosure without any confidentiality obligation.

7.2. Exception. Notwithstanding Section 7.1 above, if the Receiving Party is requested to disclose the Disclosing Party’s Confidential Information by any public agency such as a government authority, local government, stock exchange or court pursuant to applicable laws and regulations, any judicial, regulatory or governmental request, requirement or order, then the Receiving Party may, after taking reasonable steps to give the Disclosing Party sufficient prior notice to contest such request, disclose the Confidential Information to the minimum extent required.

8. Representations; Warranties

8.1. General. The representations and warranties in this Section 8 are continuous in nature and are deemed to have been given by each party upon execution of this Agreement.

8.2. Corporate Power. Each party represents and warrants that it is duly organised and validly existing in accordance with the laws of the country of its incorporation and has full corporate power and authority to execute and deliver this Agreement and has all licenses, authorizations, consents, approvals and permits required by all applicable laws and regulations in order to perform its obligations hereunder.

8.3. Binding Agreement. Each party represents and warrants that this Agreement constitutes a legal, valid and binding obligation upon it enforceable in accordance with its terms by appropriate legal remedy. The execution, delivery and performance of this Agreement by the party does not conflict with any agreement, instrument or understanding to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or other agency having jurisdiction over it.

8.4. Taxes. Lithodomos confirms that (i) the Retail Rate will be inclusive of any taxes applicable to the Lithodomos Product, including, without limitation, federal, state and local taxes imposed now or hereafter by applicable government entities, so that the Heritage Member will not be responsible for any tax liability relating to the Lithodomos Product with the exception of the Heritage Member’s taxes; and (ii) Lithodomos or the Supplier will be responsible for remitting any such taxes and all related documentation to the government entities.

8.5. Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, LITHODOMOS DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE LITHODOMOS PRODUCTS, PRODUCT INFORMATION, OR OTHER SUBJECT MATTER UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, ANY WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. LITHODOMOS DOES NOT GUARANTEE THAT THE PRODUCT INFORMATION, LITHODOMOS LINK OR HTML LINKS WILL BE ALWAYS AVAILABLE, ACCESSIBLE, TIMELY, OR ERROR-FREE, WHILST LITHODOMOS SHALL ENDEAVOR TO KEEP AVAILABILITY, ACCESSIBILITY AND TIMELINESS THEREOF.

9. Term; Termination

9.1. Term. This Agreement is effective as of the date on which the Heritage Member accepted this Agreement (“the Commencement Date”) and shall continue until terminated in accordance with this Section 9 (the “Term”). Either party may terminate this Agreement on at least thirty (30) days’ prior written notice to the other party.

9.2 Termination. Either party may terminate this Agreement immediately if:

    • 9.2.1 the other party commits a material breach of any of its obligations under this Agreement which are not capable of remedy;

    • 9.2.2 the other party committed a material breach of any of its obligations under this Agreement which is capable of remedy but which has not been remedied within a period of thirty (30) days following receipt of written notice to do so;

    • 9.2.3 the other party becomes insolvent or is adjudicated bankrupt, or files a voluntary petition or pleading under any applicable bankruptcy code, bankruptcy laws or insolvency laws, or an involuntary petition is filed with respect to such party, under any such laws, or a permanent or temporary administrator, receiver or trustee for all or substantially all of such party’s property is appointed by any court;

    • 9.2.4 the other party goes into liquidation or otherwise effectively ceases its business;

    • 9.2.5 regulatory authorities subject the other party to administrative punishment that results in that other party not being able to continue its operations relating to this Agreement; or

    • 9.2.6 the other party commits any deceptive act or an act causing it to lose credibility in the course of the performance of its obligations hereunder.

9.3. Upon expiration, cancellation or termination of this Agreement for any reason, (i) the licences and rights granted to the Heritage Member hereunder will immediately terminate and (ii) the Heritage Member agrees to immediately (a) remove all HTML links from the Heritage Member Site to the Lithodomos Site and (b) cease using the Lithodomos Link and the Product Information and will remove all Product Information from the Heritage Member Site. In addition, each party agrees to cease using the other party’s names, logos, marks and/or trademarks. Sections 2.2, 2.5, 7, 9.3, and Section 10 shall survive any expiration or termination of this Agreement.

10. General

10.1. DISCLAIMER OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY AGREES THAT THE OTHER PARTY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL LOSS OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES OR LOSS OF PROFITS, OR COSTS TO PROCURE SUBSTITUTE GOODS, EVEN IF ADVISED OF THE RISK OF THE LOSS OR DAMAGES IN ADVANCE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF LITHODOMOS WILL NOT EXCEED THE TOTAL DONATIONS PAID PURSUANT TO THIS AGREEMENT IN THE PRECEDING FOUR (4) CALENDAR MONTHS (OR IF A BREACH OF THIS AGREEMENT OR A TORT OCCURS DURING THE TWELVE (12) MONTHS AFTER THE COMMENCEMENT DATE, THE AMOUNT OF THE DONATIONS PAID IN THE MOST RECENT ONE (1) MONTH PERIOD MULTIPLIED BY FOUR (4)).

10.2. Entire Agreement; Updates. This Agreement and the documents referred to herein constitute the entire agreement between the parties pertaining to the subject matter hereof, and any and all other written or oral agreements existing between the parties pertaining to the subject matter hereof are expressly cancelled, except that this Agreement will not have any effect on any confidentiality agreement existing as of the Commencement Date. Lithodomos reserves the right to update or otherwise make changes to this Agreement from time to time on at least fourteen (14) days’ prior notice, which notice Lithodomos will provide to the Heritage Member by any reasonable means (including by email). Except as set forth in this Section, no amendment, modification or rescission to this Agreement or any Attachment or document will be effective unless it is made in writing by Lithodomos.

10.3. Assignment. Lithodomos may assign or otherwise transfer this Agreement in whole or in part. The Heritage Member may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder, by operation of law or otherwise, without Lithodomos’ prior written consent and, for purposes hereof, a merger or change of control in which the Heritage Member is not the surviving party will be deemed an assignment. Any attempted assignment in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

10.4. Notices. Unless otherwise provided herein, all notices under this Agreement shall be in writing and shall be delivered to LithodomosVR Pty. Ltd. at P.O. Box 136, Prahran, Victoria, 3181, AUSTRALIA ATTN: Managing Director and to the Heritage Member at the address provided to Lithodomos during the online sign-up process. All such notices shall be deemed to have been given upon receipt. Notwithstanding the foregoing, Lithodomos may alternatively (or in addition) provide notices to the Heritage Member via email, which notices will be deemed to be given when sent.

10.5. Governing Law. This Agreement and the rights and obligations of the parties will be construed in accordance with and governed by the laws of the State of Victoria, Australia, the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts exercising jurisdiction there.