Lasted Updated: Aug 17, 2016
Please read these Terms and Conditions (the “Terms”) carefully.
These Terms govern your use of the online platform offered by Kootour Software &
Technologies Inc. (“Kootour“, “we“, “us”
or “our“) that connects guides offering tours with travellers seeking
to purchase guided tours, and which Kootour makes available at [www.kootour.com]
(the “Site”) and as applications for devices (collectively, the
“Application”). Kootour’s online platform, as it is made available
through the Site and the Application, is referred to collectively throughout these
Terms as the “Services”.
YOU ACKNOWLEDGE AND AGREE THAT BY REGISTERING FOR, ACCESSING OR USING THE SERVICES,
YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THESE TERMS, AND THAT YOU ARE
ENTERING INTO A LEGALLY BINDING AGREEMENT WITH KOOTOUR SUBJECT TO THESE TERMS. IF
YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCESS OR USE THE SERVICES.
Wherever used in these Terms, “you”, “your” or similar terms means the person or
legal entity accessing or using the Services. If you are accessing or using the
Services on behalf of a company (such as your employer) or other legal entity, you
represent and warrant that you have the authority to bind that company or other
legal entity to these Terms.
“Guide” means a Member who creates a Listing via the Services.
“Kootour Content” means all information and material (including
text, imagines, video, audio, software and other media) that Kootour makes available
in association with or via the Services.
“Listing” means a Tour listed by a Guide as available for purchase
by a Member via the Services.
“Member” means a person who completes the Kootour account registration
process, as described in Section 2.1 below.
“Member Content” means all information and material (including
text, images, video, audio and other media) that a user of the Services, including
but not limited to Travellers and Guides, posts, publishes, transmits or otherwise
makes available through the Services.
“Tour” means a guided tour or other activities led by a Guide.
“Traveller” means a Member who requests a booking of or purchases
a Tour via the Services.
2. THE SERVICES
KOOTOUR OFFERS THE SERVICES TO FACILITATE GUIDES AND TRAVELLERS CONNECTING AND BOOKING
TOURS DIRECTLY WITH EACH OTHER. YOU UNDERSTAND AND AGREE THAT: I) KOOTOUR IS NOT
IN THE BUSINESS OF OFFERING OR PROVIDING TOURS AND ALL TOURS AVAILABLE FOR PURCHASE
VIA THE SERVICES ARE NOT OFFERED OR PROVIDED BY KOOTOUR; II) KOOTOUR IS NOT A PARTY
TO ANY AGREEMENTS ENTERED INTO BETWEEN GUIDES AND TRAVELLERS; AND III) KOOTOUR DOES
NOT ENDORSE OR MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT ANY MEMBER OR LISTING.
ACCORDINGLY, ALL BOOKINGS WILL BE MADE AT THE MEMBER’S OWN RISK, AND KOOTOUR IS
NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY IN RESPECT OF ANY AND ALL BOOKINGS
AND ANY OFFLINE ACTIVITY IN CONNECTION WITH SUCH BOOKINGS TO THE MAXIMUM EXTENT
PERMITTED BY LAW. FURTHERMORE, ANY LEGAL REMEDY OR LIABILITY THAT YOU SEEK TO OBTAIN
FOR ACTIONS OR OMISSIONS OF OTHER MEMBERS WILL BE LIMITED TO A CLAIM AGAINST SUCH
MEMBERS, AND YOU AGREE NOT TO IMPOSE LIABILITY ON OR SEEK ANY LEGAL REMEDY FROM
KOOTOUR WITH RESPECT TO SUCH ACTS OR OMISSIONS.
In order to access certain features of the Services , including but not limited
to creating or booking a Listing, you must register with Kootour to create a user
account and become a Member. You may not have more than one (1) active user account.
You agree to provide accurate, up-to-date and complete information during the registration
process and to update such information in the event it changes. Kootour reserves
the right to suspend or terminate your account or your access to the Services if
you create more than one (1) account, or if you provide any information that is
false, inaccurate, misleading, not up-to-date, incomplete or otherwise in violation
of these Terms.
4. MODIFICATION OF SERVICES OR TERMS
Kootour reserves the right, in its sole discretion, to modify the Services (including
the addition, modification or removal of functionality, features or content) or
these Terms, at any time and without prior notice. If Kootour modifies these Terms,
Kootour will post the changes on the Services or otherwise provide you with notice.
Your continued use of the Services following our posting the changes or providing
you with notice will mean that you accept and agree to such changes. You are responsible
for regularly consulting the current version of the Terms prior to your use of the
Services. If the modified Terms are not acceptable to you, you must stop using the
5.1 Subject to completion of a verification process
to confirm your identity and other information, you may as a Member create Listings
via the Services. You acknowledge and agree that you are solely responsible for
your Listings, including the information in the Listings and any offline activity
related to the Listings. You represent and warrant that your Listings, including
the information in the Listings and any offline activity related to the Listings
(i) will not breach any agreements you have entered into with third parties, (ii)
will not breach the rights of any third parties, including intellectual property
rights, and (iii) will be in compliance with all applicable laws (including having
all necessary permits, licenses, certifications or other legal or regulatory requirements).
Kootour reserves the right, at any time and without prior notice, to remove or disable
access to a Listing for any reason in the sole discretion of Kootour, including
but not limited to, a Listing that is in violation of these Terms or Kootour’s Community
Guidelines or that Kootour considers objectionable or otherwise harmful to the Services.
You acknowledge and agree that the placement or ranking of Listings available via
the Services, including through search results, may depend on a variety of factors
determined by Kootour in its sole discretion, and that Kootour does not guarantee
any specific placement or ranking.
5.2 You agree as a Guide to obtain reasonable insurance
to cover potential liabilities related to loss, damage or injury suffered by yourself,
a Traveller or other person in connection with your Tours. Kootour recommends that
Travellers also obtain appropriate travel and/or medical insurance when booking
or participating in a Tour.
If you are a Guide and a booking is requested for your Listing via the Services,
you must confirm or reject the booking request (either through instant or manual
confirmation in accordance with the confirmation mechanism for the relevant Listing)
within 48 hours or such other booking request period Listings is instant confirmation
(i.e. the request is automatically confirmed). If a booking request is not confirmed
by the Guide within the booking request period, the booking request will terminate.
7. PAYMENT TERMS
(a) “Taxes” means sales taxes, value added taxes, goods and services
taxes or other taxes imposed by governmental authorities.
(b) “Guide Fees” means the fee that Kootour charges a Guide for
use of the Services, which is calculated as a percentage of the applicable Tour
Fees. The percentage used to calculate the Guide Fees is displayed to the Guide
at the time the Guide creates a Listing.
(c) “Referral Discounts” means amounts that Kootour may from time
to time offer to a Traveller as a discount for being referred by another Member
to register for the Services.
(d) “Tour Fees” means the amounts that are due and payable by a
Traveller in exchange for participation in a Tour as determined by Guides in their
sole discretion, less any applicable Referral Discounts.
(e) “Traveller Fees” means the fee that Kootour charges a Traveller
for use of the Services, which is calculated as a percentage of the applicable Tour
Fees and displayed to the Traveller at the time the Traveller elects to send a booking
request to a Guide.
(f) “Total Fees” means collectively the Tour Fees and the Traveller
Fees, plus any applicable Taxes.
7.2 General Payment Terms
(a) Kootour will collect the Total Fees from the Traveller at the time a booking
request for a Listing is confirmed or refunds in accordance with these Terms, to
the Guide within 48 hours of the scheduled completion time for the Tour, provided
that if such 48 hour period includes a day that is not a business day, then on the
following business day.
(b) All amounts due and payable in connection with the Services or any bookings
made via the Services, including the Tour Fees, the Traveller Fees and the Guide
Fees, will be in United States dollars unless otherwise stated.
7.3 Payment Terms for Guides
(a) You, as a Guide, hereby appoint Kootour to act as your limited payment
collection agent solely for the purpose of accepting the Tour Fees from Travellers.
You agree that payment of the Tour Fees made by a Traveller through the Services
shall be considered the same as a payment made directly to you, and you will provide
the Tour to the Traveller in the manner agreed between you and the Traveller as
if you have received the Tour Fees. You agree that Kootour may, in accordance with
the cancellation policy selected by the Traveller and indicated in the relevant
Listing, (i) permit the Traveller to cancel the booking, and/or (ii) refund to the
Traveller that portion of the Tour Fees specified in the applicable cancellation
policy. You understand that as Kootour accepts payments from Travellers as your
limited payment collection agent and that Kootour’s obligation to pay you is subject
to and conditional upon successful receipt of the associated payments from Travellers,
Kootour does not guarantee payments to you for amounts that have not been successfully
received by Kootour from Travellers. In accepting appointment as your limited authorized
agent, Kootour assumes no liability for any of your acts or omissions.
(b) In consideration for the use of the Services provided by Kootour, Kootour
charges the Service Fees. You acknowledge and agree that: i) the Total Fees include
the Traveller Fees, and ii) Kootour will deduct the Guide Fees from the Tour Fees
before remitting the balance to the Guide. iii) Kootour does not cover any costs incurred by the Guide related to receiving a balance transfer, such as, but not limited to: wire transfer fees, currency conversion fees and ATM withdrawal fees.
7.4 Payment Terms for Travellers
(a) You agree as a Traveller to pay Kootour for any confirmed bookings made in connection
with your account in accordance with these Terms by a payment method approved by
Kootour and described in the Services, and you hereby authorize the collection of
such amounts by Kootour or a third-party payment processor. In the event you are
directed to a third-party payment processor, you may be subject to terms and conditions
governing the use of that third party’s services and personal information collection
practices. You should review such terms and conditions before using the third-party’s
(b) You understand and agree as a Traveller that Guides, and not Kootour, are solely
responsible for honoring any confirmed bookings and providing the Tours booked via
the Services. If you choose to book a Tour with a Guide via the Services, you understand
and agree that you will be required to enter into an agreement with the Guide and
you agree to accept any terms, conditions, rules and restrictions associated with
such Tour imposed by the Guide. You acknowledge and agree that you, and not Kootour,
will be responsible for performing the obligations of any such agreements, that
Kootour is not a party to such agreements, and that, with the exception of its payment
obligations hereunder, Kootour disclaims all liability arising from or related to
any such agreements. You acknowledge and agree that, notwithstanding the fact that
Kootour is not a party to the agreement between you and the Guide, Kootour acts
as the Guide’s payment collection agent for the limited purpose of accepting payments
from you on behalf of the Guide.
8. REFUNDS AND CANCELLATIONS
You may cancel a requested but unconfirmed booking made via the Services as a Traveller
with no charge or penalty.
(b) In the event you cancel a confirmed booking made via the Services as a Traveller,
either Kootour’s standard cancellation policy (the “Standard Cancellation Policy”)
or a customized cancellation policy the terms of which are determined by the Guide
(a “Customized Cancellation Policy”) will apply as indicated in the relevant Listing.
For the purposes of either cancellation policy, each 24 hours before the scheduled
starting time of the Tour will count as 1 day before such scheduled starting time
The Standard Cancellation Policy is as follows:
(i) Traveller cancels 5 days or more before the scheduled starting time of the Tour:
100% refund of Tour Fees (no refund of Traveller Fees).
(ii) Traveller cancels less than 5 days but more than 1 day before the scheduled
starting time of the Tour: 50% refund of Tour Fees (no refund of Traveller Fees).
(iii) Traveller cancels less than 1 day before the scheduled starting time of the
Tour: no refund of Tour Fees or Traveller Fees.
(c) The default cancellation policy for Listings is the Standard Cancellation Policy.
You may, as a Guide, create a Listing with a Customized Cancellation Policy.
(d) If a Guide does not arrive at the scheduled starting location of a Tour within
30 minutes of the scheduled starting time of the Tour, the Traveller may elect to
cancel the Tour and, in the event of such cancellation, the Traveller will be entitled
to a 100% refund of the Total Fees. If a Traveller does not arrive at the scheduled
starting location of a Tour within 30 minutes of the scheduled starting time of
the Tour, the Tour will be deemed completed and, in the event of such completion,
all payments made by the Traveller in respect of the Tour, including the Tour Fees
and the Travellers Fees, will be non-refundable .
(e) In the event a Guide cancels a confirmed booking made via the Services, the
Traveller will be entitled to a 100% refund of the Total Fees.
(f) A guide may indicate in a Listing that the Tour is to be conducted “rain or
shine”. If a Listing does not indicate that a Tour is to be conducted “rain or shine”
and a Guide reasonably determines on the scheduled starting date of a Tour that
a Tour cannot be conducted due to extreme weather conditions or Force Majeure situations,
as defined below. The Guide may elect to cancel the booking and, in the event of
such cancellation, the Traveller will be entitled to a 100% refund of the Total
Fees. If a Listing indicates that a Tour is to be conducted “rain or shine”, the
Guide may not elect to cancel the booking due to weather conditions unless, in the
discretion of the Guide, such conditions on the starting date of the Tour, or at
any time during the Tour, are hazardous to the safety of the Guide or Traveller,
and in the event of such cancellation, the Traveller will be entitled to a 100%
refund of the Total Fees.
(g) Kootour reserves the right, in its sole discretion, to cancel a confirmed booking
made via the Services and/or refund all or part of the amounts charged to the Traveller
in circumstances including, but not limited to, those set out in Kootour’s Cancellation
and Refund Policy. You agree that Kootour, and the relevant Traveller or Guide,
will not have any liability for such cancellation or refund.
9. USER CONDUCT
9.1 You are responsible for your own conduct when using
the Services. You agree that you will only use the Services for lawful purposes
and in a manner consistent with these Terms and any applicable rules, policies and
guidelines established by Kootour in respect of the Services from time to time,
including but not limited to, the [Community Guidelines]. Misuse or unauthorized
use of the Services and its related systems or networks, or of any information or
material available through the Services is strictly prohibited and Kootour reserves
the right, at its sole discretion and without liability or prejudice to any other
remedies that it may have, to immediately suspend or terminate access by any user
who is using, or who Kootour reasonably believes is using, the Services in violation
of these Terms.
9.2 Without limiting Section 9.1, you agree not to use
the Services to: (i) engage in conduct that would constitute a criminal or quasi-criminal
offence, that would give rise to civil liability, or that would otherwise violate
any applicable local, provincial, state, federal or international law or accepted
Internet protocol; (ii) communicate, transmit, upload or post information that is
inaccurate, incomplete, misleading, false or libellous; (iii) communicate, transmit,
upload or post information or material that infringes intellectual property rights,
privacy rights, rights of publicity or any other rights of any person; (iv) communicate,
transmit, upload or post material that is obscene, vulgar, pornographic, abusive,
defamatory, threatening, racist, sexist or otherwise objectionable; (v) attempt
to interfere with or gain unauthorized access to the Services or its related systems
or networks; (vi) use the Services for any commercial or other purposes that are
not expressly permitted by these Terms; (vii) recruit or otherwise solicit any Traveller
or Guide to join or otherwise participate in any third-party services or websites
that are competitive to Kootour; (viii) use the Services to find a Traveller or
Guide and then arrange to book or otherwise purchase or participate in a Tour independent
of the Services in order to avoid the obligation to pay any fees to Kootour under
these Terms for the use of the Services; (ix) use or attempt to use the Services
to gain unauthorized access to any person’s data or network; or (x) otherwise use
the Services in a manner that could, in the opinion of Kootour, adversely affect
the ability of other users to use the Services or the Internet, including post or
transmit information or data containing worms, viruses, Trojan horses or other disruptive
10. INTELLECTUAL PROPERTY
10.1 Kootour is the owner of the Services and the Kootour Content and all intellectual
property rights therein. All rights, title, and interest in and to the Services
and the Kootour Content not expressly granted under these Terms are reserved by
Kootour. Without limiting the generality of the forgoing, Kootour owns the trademarks
and design marks, trade dress, domain names, service names, logos and associated
designs (“Trademarks”) used in connection with the Services and
any unauthorized use of the Trademarks is strictly prohibited.
10.2 If you submit any suggestions, comments or other
feedback (“Feedback“) to Kootour regarding the Services, you agree
that Kootour shall have a worldwide, perpetual, irrevocable, unrestricted, unlimited
and fully paid-up right and license to use, copy, modify, publish, disclose, distribute,
license, sublicense, incorporate into its products or services, and create derivative
works of, any Feedback or any ideas or materials contained in or resulting from
any Feedback, for any and all commercial and non-commercial purposes. For greater
certainty, you agree that Kootour may use and exploit any Feedback in any way at
our discretion, without compensation or obligation to you or to any other party.
10.3 You retain ownership of all your Member Content.
You agree that you grant to Kootour a non-exclusive, royalty-free, perpetual, irrevocable,
transferable, world-wide license, with the right to sublicense, to access, use,
reproduce, modify, publish, translate, create derivative works from, distribute,
disseminate, perform, transmit, display, store, index and archive your Member Content
or to incorporate it in other works in any form, media, or technology, for the full
term of any rights that may exist in such Member Content, for any purpose and without
compensation or obligation to you or any other party. You are solely responsible
for your Member Content that you upload, publish, transmit, link to or otherwise
make available through the Services. If you are posting Member Content belonging
to or generated by or on behalf of a third party, you warrant that you are authorized
to act on behalf of that third party and to bind them to these Terms.
Your use of the Services, and our use of certain information about you, are subject
prior to using the Services.
12. TERM AND TERMINATION
12.1 These Terms shall commence on the date on which
you first register for, access or use the Services and shall continue until your
account is cancelled.
12.2 Kootour may, in our sole discretion, with or without
cause, with or without prior notice and at any time, suspend, limit or cancel your
account. You may cancel your account and discontinue your use of the Services at
any time via the account cancellation feature of the Services. In the event your
account is suspended, limited or cancelled: i) any requested or confirmed bookings
associated with your account will automatically be terminated; ii) we may communicate
to your Guide or Traveller about such cancellation, iii) we reserve the right to
refund your Traveller any amounts paid in respect of a booking, and iv) you will
not be entitled to any compensation for any requested or confirmed bookings terminated
as a result of your account being suspended, limited or cancelled.
12.3 Upon termination of these Terms for any reason:
i) you shall immediately discontinue your use of the Services, and ii) any rights
and licenses granted to you under these Terms will terminate.
12.4 Any provision of these Terms in favour of Kootour
or which expressly, or by their nature, are intended to survive termination shall
survive the expiration or termination of these Terms.
13. DISCLAIMER OF WAFRANTIES
13.1 YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE
SERVICES IS AT YOUR SOLE RISK, AND THAT THE SERVICES ARE PROVIDED TO YOU ON AN “AS
IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
KOOTOUR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, KOOTOUR EXPRESSLY DISCLAIMS THAT: (I) THE SERVICES, THE LISTINGS
OR ANY TOURS WILL MEET YOUR EXPECTATIONS OR SATISFY YOUR REQUIREMENTS; (II) THE
SERVICES, THE LISTINGS OR ANY TOURS WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED,
TIMELY, SAFE, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE; (III) THE RESULTS OBTAINED
FROM YOUR USE OF THE SERVICES, THE LISTINGS OR ANY TOURS WILL BE COMPLETE, ACCURATE,
RELIABLE OR USEFUL; AND (IV) THAT ANY ERRORS OR DEFECTS IN THE OPERATION OR FUNCTIONALITY
OF THE SERVICES WILL BE CORRECTED. IN ADDITION, KOOTOUR EXPRESSLY DISCLAIMS ANY
AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO: (I) ANY CONTENT MADE AVAILABLE
THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO, ANY MEMBER CONTENT; (II) ANY
PRODUCTS OR SERVICES OFFERED OR PROVIDED BY MEMBERS OR OTHER THIRD PARTIES IN ASSOCIATION
OR CONNECTION WITH THE SERVICES, INCLUDING THE LISTINGS, ANY TOURS OR ANY THIRD
PARTY SERVICES; (III) ANY HACKING OR OTHER UNAUTHORIZED ACCESS TO OR USE OF THE
SERVICES; AND (IV) ANY DAMAGE TO YOUR SOFTWARE, COMPUTER SYSTEM OR OTHER PROPERTY
CAUSED BY VIRUSES OR OTHER MALICIOUS CODE AS A RESULT OF YOUR ACCESS OR USE OF THE
SERVICES. YOU ACKNOWLEDGE AND AGREE THAT IF YOU ARE DISSATISFIED WITH OR HARMED
BY THE SERVICES, OR WITH ANYTHING RELATED TO THE SERVICES, YOUR SOLE AND EXCLUSIVE
REMEDY WILL BE TO DISCONTINUE USE OF THE SERVICES AND TERMINATE THIS AGREEMENT IN
ACCORDANCE WITH SECTION 12.
14. LIMITATION OF LIABILITY
14.1 YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, KOOTOUR WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT
NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE
LOSSES (EVEN IF KOOTOUR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING
FROM OR RELATED TO: (I) YOUR LISTING OR BOOKING OF ANY TOURS VIA THE SERVICES, AND
ANY OFFLINE ACTIVITY OR COMMUNICATIONS IN CONNECTION WITH SUCH TOURS OR THE SERVICES,
(II) THE USE OR THE INABILITY TO USE OR ACCESS THE SERVICES, INCLUDING ANY CONTENT,
PRODUCTS, SERVICES, OFFERINGS, INFORMATION OR OTHER MATERIAL AVAILABLE THROUGH THE
SERVICES; (III) ANY ERRORS OR OMISSIONS IN THE SERVICES OR ANY CONTENT; (IV) THE
SUSPENSION OR TERMINATION OF YOUR ABILITY TO ACCESS THE SERVICES; (V) ANY INTERRUPTION
TO OR CESSATION OF THE DELIVERY OF THE SERVICES OR FAILURE OF OUR SYSTEMS; (VI)
THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (VII) UNAUTHORIZED ACCESS
TO OR ALTERATION OF OUR SYSTEMS OR YOUR TRANSMISSIONS, DATA AND/OR PERSONAL INFORMATION;
(VIII) STATEMENTS OR CONDUCT OF ANY MEMBER OR OTHER THIRD PARTY USING THE SERVICES;
(IX) ANY BUGS, VIRUSES OR THE LIKE THAT ARE TRANSMITTED TO OR THROUGH THE SERVICES
BY ANY THIRD PARTY; OR (X) ANY OTHER MATTER OR EVENT RELATING TO YOUR OR ANY OTHER
PARTY’S USE OF THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT IF YOU ARE DISSATISFIED
WITH OR HARMED BY THE SERVICES, OR WITH ANYTHING RELATED TO THE SERVICES, YOUR SOLE
AND EXCLUSIVE REMEDY WILL BE TO DISCONTINUE USE OF THE SERVICES AND TERMINATE THIS
AGREEMENT IN ACCORDANCE WITH SECTION 12.
14.2 YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE
OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND
LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH
WOULD HAVE BEEN SUBSTANTIALLY GREATER IF KOOTOUR WERE TO ASSUME ANY FURTHER LIABILITY
OTHER THAN AS SET FORTH HEREIN.
You agree to defend, indemnify and hold us, our affiliates and licensors, and each
of their respective officers, partners, directors, employees and agents, harmless
from and against any and all claims, actions or demands, including without limitation
reasonable legal and accounting fees, resulting from or related to: (i) your access
to or use of the Services or any Member Content; (ii) your interaction with any
Member; (III) your booking or creation of a Listing; (iii) any injury, loss or damage
of any kind arising in connection with a Listing or Tour; (iv) your violation of
these Terms; or (v) your violation of any third party right, including without limitation,
any intellectual property, privacy or proprietary right, or obligation of confidentiality.
You will use your best efforts to cooperate with Kootour in the defense of any claim.
Kootour reserves the right, at our own expense, to assume the exclusive defense
and control of any matter subject to indemnification by you.
16. THIRD PARTY SERVICES
The Services may enable you to access third party websites, applications or materials
linked to or accessible through the Services (“ Third Party Services”).
Kootour provides access to Third Party Services as a convenience only, and such
access does not imply any warranties, representations, endorsements, approvals or
verification by Kootour of such Third Party Services. You acknowledge that the use
of Third Party Services may be subject to the terms and conditions of such Third
Party Services, and that any contract entered into or transaction completed through
Third Party Services is between only you and the relevant third party.
17.1 Governing Law. You agree that these
Terms, and your use of the Services, are governed exclusively by the laws of the
Province of British Columbia and the federal laws of Canada applicable therein (excluding
conflicts and choice of laws principles). Any contract formed through the use of
the Services will be deemed to have been formed and executed within the Province
of British Columbia, Canada. The application of the United Nations Convention on
Contracts for the International Sale of Goods is hereby expressly excluded.
17.2 Dispute Resolution
(a) Means of Resolution . You and Kootour agree that any disputes arising
under these terms or otherwise in connection with your use of the Services will
be resolved through arbitration under the Commercial Arbitration Act, R.S.B.C.
1996, c. 55, as amended from time to time. Arbitration will be held in Vancouver,
BC, Canada, and conducted in the English language. Notwithstanding the foregoing,
you agree that: (i) the courts in any relevant venue will have jurisdiction for
the purposes of obtaining and enforcing injunctive or other equitable relief, and
for the purposes of enforcing the decision of any arbitrator appointed in accordance
with this provision, and (ii) Kootour may bypass arbitration in cases of fraud or
other crimes against it, and in the case of interference with its technical operations
or violations of its rights or property.
(b) Class Waiver. You acknowledge and agree that you and Kootour are each
waiving the right to a trial by jury or to participate as a plaintiff or class member
in any purported class action or representative proceeding. Further, unless both
you and Kootour otherwise agree in writing, the arbitrator may not consolidate more
than one person's claims, and may not otherwise preside over any form of any class
or representative proceeding. If this paragraph is held unenforceable, then the
entirety of this Section 17.2 will be deemed void.
17.3 Jurisdiction and Venue. If Section 17.2
is deemed void or is otherwise inapplicable, all disputes under these Terms will
be resolved by a court of competent jurisdiction located in Vancouver, British Columbia,
Canada, provided that the courts in any relevant venue will have jurisdiction for
the purposes of obtaining and enforcing injunctive or other equitable relief.
17.4 Force Majeure. Neither party shall be
liable for delay or failure in performance (other than the making of payments) resulting
from any cause beyond the reasonable control of such party, including but not limited
to, acts of God, acts of war, riot, fire, flood, or other disaster, acts of government,
strike lockout, power failures, or the inability to use or the failure of any third
party telecommunications carrier or other services, which events or conditions prevent
in whole or in part the performance by such party of its obligations hereunder or
which renders the performance of such obligations so difficult or costly as to make
performance commercially unreasonable.
17.5 Assignment. You may not assign any of your
rights or obligations under these Terms without our prior written consent. Kootour
may freely assign our rights and obligations under these Terms, either in part or
in full, without notice to you.
17.6 Notice. Kootour may communicate with you
about the Services or these Terms, including any changes to these Terms, by email
or by posting notices via the Services. Unless expressly prohibited by law, you
consent to receive communications relating to the Services or our business relationship
from Kootour electronically, and agree that all notices, waivers, agreements, disclosures
and other communications satisfy any legal requirements that such communications
be in writing. You may provide legal notice to Kootour at [101-887 Great Northern
Way, Vancouver, B.C.,Canada, V5T 4T5].
17.7 Nature of Relationship. Nothing in these
Terms or from your use of the Services will create or be deemed to create any partnership,
joint venture, agency, franchise or other business relationship between you and
Kootour, even if your use of the Services is for a commercial purpose which has
been authorized by us. You and Kootour will, at all times, be and remain independent,
17.8 Severability. The provisions of these Terms
are severable. If any individual provision is held to be invalid, unenforceable
or contrary to applicable law, such provision shall be construed, limited, altered
or deleted, as necessary, to eliminate the invalidity, unenforceability or conflict
with applicable law while endeavoring to preserve the intention of these Terms,
and all other provisions shall remain in full force and effect.
17.9 Entire Agreement. These Terms, including
or otherwise communicated to you, constitute the entire agreement between you and
Kootour governing your use of the Services.
17.10 Waiver. The failure by Kootour to exercise
or enforce any right or remedy under these Terms will not constitute a waiver of
such right or remedy.
17.11 Contact. If you wish to contact Kootour
with any questions, comments or concerns regarding the Services or these Terms,
please refer to our Contact Us
Software & Technologies Inc. (“Kootour”, “we”, “ us” or
“our”) collects from or about you when you use Kootour’s online platform
that connects guides offering tours with travellers seeking to purchase guided tours
(the “Services”), how we use that information, and to whom we disclose it.
“Personal information” means information about an individual that is reasonably
capable of identifying the individual, either alone or in combination with other
Please read this Policy carefully. If you do not agree with this Policy, you should
not access or use the Services or provide us with your personal information. This
Policy should be read in conjunction with the Kootour Terms and Conditions, into
which it is incorporated by reference.
This Policy was last updated on Aug 18, 2016 . We may modify this Policy from time
to time. We will provide you with notice of any material changes to this Policy
by publishing or communicating the changes through our Services or by other means
so that you may review and comment on the changes before continuing to use our Services.
Your continued use of the Services after we publish or communicate a notice about
any changes to this Policy means that you are consenting to the changes.
1. Accountability and Openness / Compliance
Kootour is responsible for personal information under our control. We have established
policies and procedures to effectively safeguard any confidential personal information
that we collect, and to deal with complaints and inquiries. We are committed to
maintaining the accuracy, confidentiality and security of your personal information,
and we will ensure that you have access to information regarding the policies and
procedures that we use to manage your personal information.
Kootour has designated a privacy officer (“Privacy Officer”) who is accountable
for our compliance with this Policy, and for ensuring that information about our
policies and practices relating to the management of personal information is easily
accessible. All questions or concerns regarding this Policy and our compliance with
it should be directed to the Privacy Officer in writing, and sent by email to [privacy@Kootour.com]
or by mail to:
101-887 Great Northern Way, Vancouver, B.C. V5T 4T5
Every complaint or challenge regarding our compliance with this Policy will be investigated,
and where a deficiency is found to exist, we will take appropriate measures to address
it. This may include amending our policies and procedures as necessary. We will
also cooperate with regulatory authorities to resolve any complaints that cannot
be resolved between us and an individual user.
If you are located in British Columbia, you may contact the Office of the Information
& Privacy Commissioner for British Columbia at P.O. Box 9038 Stn. Prov. Govt.,
Victoria, B.C. V8W 9A4 or https://www.oipc.bc.ca
with any complaints regarding this Policy. Users may also contact the Office of
the Privacy Commissioner of Canada at 30 Victoria Street, Gatineau, Quebec K1A 1H3
By using the Services, you signify your agreement to the terms and conditions of
this Policy and to our collection, use and disclosure of your personal information
as set out herein. You may change or withdraw your consent to the collection, use
or disclosure of your personal information at any time by contacting the Privacy
Officer in writing at the address listed above (see: Accountability and Openness
/ Compliance). In some circumstances, a change or withdrawal of consent may affect
your ability to use the Services.
3. Collection and Retention of Information
We collect Personal Information only to the extent that it is necessary for the
purposes set out below (see: Purpose - Why We Collect, Use and Disclose Information).
Subject to any legal or accounting requirements, we will retain personal information
only as long as necessary to fulfill the purposes for which it was collected. Personal
information that is no longer required will be destroyed, erased or made anonymous,
although copies of deleted information may continue to exist on back-up media.
Information that we may collect includes:
(a) User Submitted Information
We collect certain personal information at the time users registerto create a user
account or update their account details, including a user’s name, e-mail address
and other contact information. We also collect information that users submit through
their use of the Services, including when they create listings of tours offered
for purchase by other users, request or confirm bookings for tours, pay for tours
and post comments or reviews or otherwise share information through the Services.
(b) Usage Data
We collect certain non-identifying information about usage of the Services, including
information about how users are using the Services and the characteristics of those
users. This information is anonymized and is not used by us to identify you as an
(c) Technical and Device Information
We collect certain non-identifying information related to a user’s access of the
Services, including the Internet Protocol (IP) address of the user’s computer, the
date and time the user accessed the Services, and the operating system that the
user is using. We make no attempt to link this information with the identity of
individuals visiting our website without express permission. We may, however, review
server logs and anonymous traffic for system administration and security purposes,
for example to detect intrusions into our network, for planning and improving web
services, and to monitor and compile statistics about website usage. The possibility
therefore exists that server log data, which contains users’ IP addresses, could
in instances of criminal malfeasance be used to trace and identify individuals.
In such instances, we may share raw data logs with the appropriate authorities for
the purpose of investigating security breaches.
(d) Cookies and Web Beacons
A “cookie” is a small piece of information stored on your computer by a web page.
It is used to identify you to the web server. It tells the server who you are when
you return to a page on the same website. Your browser will only send a cookie back
to the domain that originally sent it to you. A cookie cannot run any programs,
deliver any viruses, or send back information about your system.
for remarketing purposes to deliver ads for relevant Kootour products and services
to you when you use our Services and then visit certain third-party sites.
Most web browsers automatically accept cookies, but if you do not wish to have cookies
on your system, you should adjust your browser settings to decline them or to alert
you when cookies are being sent. If you decline cookies, you will still be able
to use the Services, but your ability to access certain features and functions may
Some of our web pages contain an invisible electronic image known as a "web beacon."
Web beacons are similar in function to cookies, but allow websites on different
domains to share information. We may use web beacons to transfer your subscription
access information between our websites and domains. Web beacons do not transmit
any personal information that we collect to any websites that are not owned by Kootour
or its affiliates.
4. Purpose - Why We Collect, Use and Disclose Information
We will identify the purposes for which we collect personal information before or
when we request the information. We will not collect personal information which
is not necessary and, except as specified below, will not use or disclose personal
information for any purpose other than the purpose(s) for which it was collected
without first obtaining your consent. The information that we collect is used and
disclosed only for business purposes. These include:
- to enable you to access and use the Services;
- to process, track and communicate with you about usage of the Services;
- to establish, maintain and manage business relations with you so that we may provide
you with the information, products or services that you request;
- internal business purposes, such as administering or improving the Services;
- to perform internal market research and conduct polls and surveys;
- to obtain feedback regarding the Services and our ability to address a user’s needs;
- to provide users with information and promotional materials regarding Kootour and
Kootour’s products and services;
- to protect us against error, fraud, theft or damage to our goods, our business or
- to comply with any legal, accounting and regulatory requirements, including reporting
requirements, applicable laws, and any search warrants, subpoenas or court orders;
- any other reasonable purpose for which you provide consent.
We may collect, use or disclose your personal information without your knowledge
or consent where we are permitted or required to do so by applicable law, government
request or court order, or based on our good faith belief that it is necessary to
do so in order to comply with such law, request or court order, or to protect our
assets, the users of our website, or the public.
5. Disclosure to Third Parties
We may disclose your personal information in response to requests from government
agencies, law enforcement authorities and regulators, or to satisfy legal or regulatory
requirements. We may also disclose your personal information when we buy a business
or sell all or part of our business.
You further acknowledge and agree that, in the course of providing the Services
to you, we may delegate our authority to collect, access, use, and disseminate your
information to third party subcontractors. Third party subcontractors may include
web hosts, payment processors, delivery and logistics providers, social network
integrators, and membership vendors. If we transfer any personal information to
a third party subcontractor, we will provide the subcontractors only with the information
needed to perform the subcontracted service, and will use appropriate contractual
or other means to provide a comparable level of protection while the information
is being used by them.
6. Safeguards – How Information is Protected
We maintain reasonable security safeguards to protect personal information in our
possession or under our control from loss or theft, and from unauthorized access,
disclosure, copying, use or modification, regardless of the format in which the
information is held. The safeguards applied will depend on the sensitivity of the
personal information, with the highest level of protection given to the most sensitive
personal information. We use user IDs, passwords, and encryption technology, maintain
our paper files in locked premises, and restrict the employees and contractors who
have access to personal information to those having a “need to know” and who are
bound by confidentiality obligations in order to ensure that information is handled
and stored in a confidential and secure manner. When destroying personal information,
we delete electronically stored personal information and shred any tangible materials
containing personal information. While we will endeavour to destroy all copies of
personal information, you acknowledge that deleted information may continue to exist
on back-up media but will not be used unless permitted by law.
We will continually review and update our security policies and controls as technology
evolves. However, no security technology can be guaranteed to be failsafe. Using
the Internet or other public means of communication to collect and process personal
data may involve the transmission of data on an international basis and across networks
not owned and/or operated by us. Therefore, by using the Services and/or communicating
electronically with us, you acknowledge and agree to our processing of personal
information in this way and agree that we are not responsible for any personal information
which is lost, or which is altered, intercepted or stored by a third party without
7. Accuracy / Access
Kootour has a responsibility to ensure that all personal information contained in
our records or which is disclosed to third parties for the purposes described above
is accurate, complete and up-to-date. You may make a request in writing for access
to your personal information. We will inform you of your personal information held
by us, and provide an account of the use that has been made of the information,
as well as identify any third parties to whom the information has been disclosed.
You may have reasonable access to your personal information, and if you demonstrate
the inaccuracy or incompleteness of personal information, the information will be
amended as appropriate. You should advise us immediately if you discover inaccuracies
in our data, if your personal information changes, or if you wish to have your information
removed from our files. All notices and requests should be in writing and sent to
the Privacy Officer at the address listed above (see: Accountability and Openness
8. International Transfer and Storage of Information
You acknowledge and agree that your personal information may be transmitted, transferred,
processed, and/or stored outside of Canada, including in the United States, and
therefore may be available to governmental authorities under lawful orders and laws
applicable in such jurisdictions. We will use reasonable means to ensure that your
information is protected, but cannot guarantee that the laws of any foreign jurisdiction
will accord the same degree of protection as the laws of Canada.
9. Third Party Content and Links to other Websites
The Services may contain optional links to third party Internet websites and services.
You acknowledge that these third parties may collect data from users or their computers.
The accessing and use of third party websites or services is at your own risk, and
we cannot assume responsibility for the privacy practices, policies or actions of
the third parties who operate those websites or services. This Policy applies only
to the Kootour Services, and we encourage you to review the privacy policies of
any third parties when using their websites or services.
Minors (persons under the age of majority as defined in your jurisdiction) are not
eligible to use the Services unsupervised, and we request that minors do not submit
any personal information to us. If you are under the age of majority in your jurisdiction,
you may only use the Services in conjunction with and under the supervision of an
adult. Kootour does not knowingly collect personal information from minors.