Between:
PRESERVE FANTASY, LDA., limited liability company whose registered office is at Rua Doutor Gomes Leal, 3ª, 2560-331 – Torres Vedras, Portugal, registered with the National Registrar under number 513902910, and at the Commercial Registry Office of Sintra under number 513902910 (“Local Tuk Tuk”); and
[●], [[public] limited liability company] incorporated under [●] law whose registered office is at [•], registered with the National Registrar under number [•], and at the Commercial Registry Office of [•] under number [•] (“[●]”).
The parties hereby agree:
1. SCOPE OF THE AGREEMENT
1.1. The scope of this agreement (“Agreement”) is to regulate the rights and obligations of the parties relating to the operation of the website www.localtuktuk.com (“Website”) owned by Local Tuk Tuk.
1.2. Users registered on the Website (“Users”) have access to a set of tourism transportation services provided by the Operator (“Services”).
1.3. Users may enter into Service agreements with the Operator through the Website, which is managed by Local Tuk Tuk in accordance with the General Conditions of Use (“General Conditions”), the terms of which Local Tuk Tuk makes available on the Website and whose terms reserve the right to update them periodically in accordance with the commercial conditions and legislation of the markets where the Website is available.
1.4. By accepting the offer of an Operator’s Service, the User accepts to be an Operator’s client (“Customer”), entering into a tourism transportation services agreement with him.
1.5. For the purposes of this Agreement, the term “passenger tourism transportation agreement” shall mean the agreement by which the Operator is bound to provide tourism animation services by means of transportation.
1.6. Local Tuk Tuk does not provide transportation services of any nature to Customers, this being the sole responsibility of the Operator.
2. LOCAL TUK TUK OBLIGATIONS
In consideration for this agreement, Local Tuk Tuk undertakes:
(a) to keep the Website accessible online with all its functionalities, except when, for reasons beyond its control, bugs, errors, technical failures, limitations or other problems occur that make it inaccessible to Users;
(b) to proceed with the updates of the Website that the applicable legislation imposes in each moment;
(c) to permit the marketing and promotion by the Operator of its Services on the Website to Users;
(d) to allow Users to enter into Service agreements with the Operator on the Website;
(e) to provide the Operator with all the relevant information provided in this Agreement for its use by the Website; and
(f) to receive amounts through online means of payment for settlement of the Services provided by the Operator.
3. OPERATOR OBLIGATIONS
3.1. The Operator undertakes:
(a) to perform the Service agreements entered into with Clients through the Website, under the terms and conditions agreed and the General Conditions, hereby attached as Schedule General Conditions;
(b) to perform the Service agreements in accordance with the applicable law in force in the country where the Services are to be provided;
(c) to hold all licenses, authorizations and documents relevant for the provision of the Service in that country, as well as any other licenses, authorizations and documents required by Local Tuk Tuk under this Agreement;
(d) to have all the equipment, means and resources relevant to the performance of the Service agreements entered into with Customers on the Website;
(e) to have a valid liability insurance and any other insurance required by the applicable law and/or Local Tuk Tuk;
(f) to provide to Local Tuk Tuk all information about the Services required for the operation of the Website and to keep such information correct and up to date;
(g) to ensure that all of its representatives and employees providing the Services to the Customers have the technical and legal skills relevant for the exercise of their activity;
(h) to treat Customers who enter into Service agreements through the Website indiscriminately in relation to the clients who enter into Service agreements through the own means of promotion of the Operator;
(i) to keep valid all rights over the signs, sounds, images or texts provided for use in the Website, being solely responsible for its contents or writing;
(j) not to use the data provided by the Customers when entering into the Service agreements for marketing purposes or any other communication, except when expressly accepted by the Customer;
(k) to communicate directly to Customers any changes that may occur in the Services; and
(l) to process all data and information provided in accordance with national and European data processing standards.
3.2. The Operator entitles Local Tuk Tuk to practice the following actions:
(a) to reproduce on the Website any signs, sounds, images or texts provided to promote their Services on the Website;
(b) to receive on behalf of the Operator the amounts paid by Customers for the Service agreements entered into through the Website;
(c) to enter into online payment service agreements to settle the amounts owed by Customers for the Service agreements entered into through the Website;
(d) to provide Users in the Website with the relevant information provided by the Operator to be able to enter into the Service agreements; and
(e) to provide online payment service providers with the relevant information about the Customers to process payment or reimbursement of amounts.
3.3. The Operator also undertakes to comply and enforce the provisions of the General Conditions, attached herein as Schedule General Conditions, and for all purposes parts of this Agreement.
4. USAGE FEE
4.1. The Operator undertakes to pay to Local Tuk Tuk a fee for the use of the Website by the Operator (“Usage Fee”) calculated on the amount charged to the Customer for each Service agreement entered into, pursuant to this clause.
4.2. The Usage Fee will correspond to a percentage in the amount of 20% on the value of each Service agreement entered into.
4.3. Local Tuk Tuk will not be entitled to any percentage of the amount charged in relation to the Service agreements entered into through the own means of promotion of the Operator.
4.4. The Operator cannot receive payments directly from Customers for the Service agreements entered into through the Website.
5. PAYMENT
5.1. The amount charged to Customers for each Service agreement entered into through the Website cannot be less than €40 (forty euros).
5.2. Local Tuk Tuk is obliged to receive the amounts of Customers for payment of the Service agreement entered into.
5.3. For that purpose, Local Tuk Tuk undertakes to enter into service agreements with means of payment providers, making such services available on the Website.
5.4. Local Tuk Tuk will deliver to the Operator the amount charged to the Customer by the 10th (tenth) day of the month following the date the Service is rendered, subtracting the amount of the Usage Fee, pursuant to clause 4.
5.5. Local Tuk Tuk will deliver the amount determined in accordance with the previous number by wire transfer to the bank account with IBAN [●], SWIFT code [●], of which the Operator is a holder before the Bank [●], and the description of such transfer must mention the agreement entered into.
5.6. The Operator cannot charge the Customer any amount beyond the amount that Local Tuk Tuk charges through the Website.
6. TRANSPORTATION SERVICES
6.1. The Operator cannot use the Website to market or promote passenger transportation of a non-tourist nature service agreements.
6.2. The Operator may reject the provision of its Services to Customers that provide incorrect information during the celebration of the agreement and/or do not comply with the provisions set forth in the General Conditions.
6.3. The Operator may also reject the provision of its Services to Customers that endanger themselves, other beneficiaries of the Services or third parties.
7. INFORMATION DUTY
The Operator must provide all the relevant information to the Customers so that they can take advantage of the Service agreements entered into through the Website, including but not limited to:
(a) meeting point;
(b) term of the Services;
(c) timetable;
(d) any other conditions whose knowledge by the Customers is relevant for the good performance of the Service agreement.
8. REIMBURSEMENT POLICY
8.1. The Operator shall comply with the reimbursement policy under the terms provided in the General Conditions, without prejudice to being able to establish its own reimbursement policy and provided that it does not conflict with those.
8.2. In the description of its Services, the Operator must supply all relevant information regarding the reimbursement policy in force.
9. TERMINATION OF THE SERVICE AGREEMENT ENTERED INTO THROUGH THE WEBSITE
9.1. Service agreements entered into through the Website may be subject to termination under the terms provided in the General Conditions, notwithstanding the Operator being able to establish its own termination scheme and provided that it does not conflict with those of the General Conditions.
9.2. In the description of its Services, the Operator must supply all relevant information regarding the current termination scheme, when it differs from the terms provided in the General Conditions.
10. EVALUATION SYSTEM
10.1. The Operator undertakes to respect and comply the evaluation system which will be offered to the Customers and in which which they can evaluate the quality of the Services provided and the performance of the representatives and employees of the Operator.
10.2. The evaluation referred to in the preceding paragraph will be carried out through the Website at the end of each trip.
10.3. The evaluation shall be based on the following criteria:
(a) 1 (one) star – very unsatisfactory service;
(b) 2 (two) stars – unsatisfactory service;
(c) 3 (three) stars – satisfactory service;
(d) 4 (four) stars – very satisfactory service; and
(e) 5 (five) stars – service of excellence.
10.4. The Operator cannot, by any means, influence, induce, constrain, pressure, threaten or coerce the Customers to assign him any evaluation other than the one which they intend to assign in their reasonable and conscious judgment.
10.5. The Operator shall not be entitled to any compensation in case of resolution by Local Tuk Tuk based on the evaluation of Customers.
11. NON-COMPETE
11.1. This Agreement is valid only for the Services provided by the Operator in the territorial scope [of the metropolitan area of [●]] and according to the terms provided herein.
11.2. During the term of this Agreement, Local Tuk Tuk cannot market, promote, assist or advise in the marketing or promotion of any Services which compete or may compete with the Services provided by the Operator within the territorial scope set out in the previous paragraph.
11.3. The Operator cannot market or promote its Services outside the Website at a price lower than the price provided in the Website.
12. RESPONSABILITY
12.1. The Operator is solely responsible for any claims or disputes relating to the Services, including but not limited to (i) the contracting or provision of the Services; (ii) actions or conduct of his representatives or employees; or (iii) relating to the infringement of the applicable legal or regulatory provisions in the country where the Services are provided.
12.2. Local Tuk Tuk is solely responsible:
(a) for the information provided in the Website, except when such information merely copies the information provided by the Operator or Local Tuk Tuk does not change its meaning;
(b) for the infringement of legal duties concerning the protection of personal data provided by users of the Website, except when such infringement is related to personal data provided to the Operator and due to its actions or omissions.
12.3. Local Tuk Tuk is not responsible for any loss or damage incurred by the Operator during the performance of the Service agreements due to the conduct, actions or information provided by the Customer or by third parties.
13. TERM
This Agreement shall be valid for 6 (six) months from the date of signature and is automatically renewable for successive periods of 6 (six) months if the parties so agree in writing at least 30 (thirty) days before the date of its termination.
14. TERMINATION
14.1. The Agreement may be terminated forthwith by written notice to the other party if the other party has committed any material breach of any of its obligations herein and (if compliance with such obligation is still in the interest of the creditor) has failed to remedy the same within a period of 30 (thirty) after receipt of written notice giving full particulars of the breach and requiring it to be remedied, without prejudice to clause 14.5.
14.2. For the purposes of clause 14.1, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).
14.3. Without prejudice to the right to terminate this Agreement, any failure by either party to comply with its obligations under this Agreement grants the other party the right to be compensated for the damage and/or loss of revenue resulting therefrom.
14.4. Either party may further terminate this Agreement immediately upon written notice to the other party in any of the following circumstances:
(a) If the other party goes into liquidation (except for the purposes of amalgamation or reconstruction in such manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that party under this Agreement);
(b) if an encumbrancer takes possession of, or a receiver or administrative receiver is appointed over, the whole or any substantial part of the property or assets of such party;
(c) If such party makes any arrangement or composition with its creditors; or
(d) If such party ceases, or threatens to cease, to carry on business.
14.5. The Customer’s evaluation of the Services provided under clause 10 may constitute grounds for termination of this Agreement by Local Tuk Tuk if the average evaluation given by the Customers of the Services in a period of not less than 90 (ninety) days is less than [4] stars, provided that Local Tuk Tuk notifies the Operator within 30 (thirty) days after becoming aware of such fact.
14.6. The Operator shall not be entitled to any compensation in case of resolution by Local Tuk Tuk based on the evaluation of Customers.
15. GOVERNING LAW AND JURISDICTION
15.1. This Agreement shall in all respects be construed and interpreted in accordance with the laws of Portugal.
15.2. Any dispute between the parties arising out of or in connection to this Agreement shall be subject to the jurisdiction of the Courts of Lisbon, with waiver of any other.
16. NOTICES
16.1. All notices or other communications under this Agreement shall be made in writing to the address and e-mail addresses indicated below:
(a) To Local Tuk Tuk:
Knowledge to: Local Tuk Tuk
Address: Avenida Fontes Pereira de Melo, Edifíco Aviz, nº35 4ºA, 1050-118 – Lisboa
E-mail: [email protected]
(b) For the Operator:
Knowledge to: [●]
Address: [●]
E-mail: [●]
16.2. Any notices sent by mail shall be deemed to have been received on the third working day following the date of dispatch. Any notices sent by e-mail, fax or other electronic means shall be deemed to have been received at the time of transmission provided that they are transmitted during normal working hours at the place of the recipient. Otherwise, they shall be deemed to have been received at the beginning of normal working hours on the first working day following their transmission.
16.3. Each party shall promptly notify the other parties of any change in any such details.
17. MISCELLANEOUS
17.1. This Agreement constitutes the entire agreement between the parties and cancels or supersedes all prior negotiations, representations or agreements, whether written or oral, between the parties prior to the date of this Agreement.
17.2. This Agreement shall not be amended or modified in any way other than by an agreement in writing executed by a duly authorised representative of each of the parties.
17.3. If any provision of this Agreement should be declared invalid by a court of competent jurisdiction, such provision shall be deemed not to have been written in any way prejudicing the validity of the remaining provisions.
17.4. No party shall have the right to assign or in any way transfer any of its rights or obligations under this Agreement to any other company, firm or person without first obtaining the consent in writing of all the other parties.
17.5. Each of the parties shall bear its own costs of and incidental to the preparation, execution and implementation of this Agreement.
IN WITNESS whereof the parties have caused this Agreement to be duly executed by their duly authorised representatives the day and year first above written.
