Standards of Access

Virtuoso Standards for Access Agreement

Effective Date: August 8, 2018

This Virtuoso Standards for Access Agreement (this “Agreement”) is between you and Virtuoso, Ltd., a Delaware corporation (“Virtuoso,” also referred to as “us,” “we” and “our”).  This Agreement sets forth the standards and requirements for your access to and participation in the Virtuoso luxury travel network (the “Network”) as a Representative of a Member Agency, including all of the applicable Network benefits, programs, and services offered to Member Agencies.   Please read this Agreement carefully before you continue to participate in the Network or access any Network benefits, programs, or services. Your continuing Network participation and/or access, or your click-through acceptance (as applicable), indicate your agreement to be bound and abide by this Agreement. If you do not want to agree to the terms of this Agreement, you must not participate in the Network or access any Network benefits, programs, or services. Please see the Definitions Section at the end of this document for the meaning of many of the capitalized terms used in this Agreement.

1. Acceptance of this Agreement.

a.    Individual Capacity. Each individual user that participates in the Network or accesses any Network benefits, programs, or services through a Member Agency is individually bound by this Agreement.  You are personally responsible for your own compliance with all of the terms of this Agreement, regardless of whether you are an owner, employee, or independent contractor of a Member Agency or an IC Entity (defined below).  Each Member Agency is bound by the Virtuoso Membership Agreement, including the Conditions of Membership (“Membership Agreement”), and your acceptance of this Agreement will not affect or amend the Membership Agreement. If any conflict or ambiguity in terms or application arises, the terms of the Membership Agreement will control

 b.    IC Entities. If you are an owner of or operate as an IC Entity, you agree to ensure that, in addition to your individual compliance, your IC Entity and its Representatives (if any) will comply with all applicable terms of this Agreement; references to “you” and “your” will include both you individually and your IC Entity, as applicable.  “IC Entity” means a separate independent contractor operation that is affiliated with a host Member Agency in order to gain Network access (“Host Agency”).  An IC Entity may be organized as a separate legal entity (such as a corporation, limited liability company, partnership, or otherwise), or the IC Entity may be an individual independent contractor operating as a sole proprietorship.

2. Additional Standards and Other Requirements.

a.    Additional Standards.  You must comply with all Additional Standards that we have previously distributed by any method and that are currently in effect.  We may provide new or modified Additional Standards to the Network from time to time by distributing the Additional Standards as specified in the applicable Membership Agreement, and you agree to comply with such Additional Standards within thirty (30) days after such Additional Standards are distributed.  Continuing in the Network acknowledges your acceptance.  We are the only party entitled to interpret and clarify the Additional Standards.

b.    Virtuoso Membership Enforcement Procedure.  To the extent applicable, you agree to be bound by the Virtuoso Membership Enforcement Procedure, as we may modify it from time to time (the “Enforcement Procedure”).  The Enforcement Procedure constitutes guidelines for use by Virtuoso in addressing formal complaints and alleged violations of the Virtuoso Membership Agreement by Member Agencies, for the benefit of Virtuoso and the Network.  You do not have the right to enforce the Enforcement Procedure, and you will not have a claim against the Releasees for any action or omission of a Releasee concerning the administration of the Enforcement Procedure, and you agree to release the Releasees from any liability associated with same.

 c.    Other Opportunities.  From time to time, we may offer additional programs, benefits, marketing opportunities, client development arrangements and other opportunities or agreements in which you may participate.  If you wish to participate, you must be eligible and comply with all relevant terms, conditions and access requirements.  Products, services, programs, benefits and opportunities may be subject to change or cancellation.

d.    Verification of Ownership.  If you operate as an IC Entity, you agree to supply any documents requested by Virtuoso at any time to verify the ownership of the IC Entity.  This may include the completion of an affidavit of ownership prepared by Virtuoso to disclose, among other things:  details about your corporate identity; the identities and ownership percentages of your current owners, shareholders, members, or partners, as applicable; the Member Agency through which you book travel; and the applicable account/identification number (such ARC, IATA, TIDS, or otherwise) through which you book travel.

3. Virtuoso.com Access, Registration and Use.

a.    You agree to use and support Virtuoso.com in accordance with all terms and conditions we distribute from time to time.  You must register and complete your individual profile on Virtuoso.com, and you must keep the profile(s) current as any information changes from time to time.  You are responsible for the accuracy of your registration and profile and (if applicable) your Representatives’ registrations and profiles. We are not responsible for incomplete or inaccurate registration or profile information.

b.    Only one (1) Log-in per person is allowed; it is prohibited for any person or entity to transfer, share with or assign to any other person or entity his/her/its Log-in.  You agree to comply with all Additional Standards and any other terms and conditions established by Virtuoso concerning providing Log-ins to your Representatives. This means you must not provide Log-ins to anyone except as allowed by this Agreement and the applicable Additional Standards.  Please ensure that your Representatives use Virtuoso.com and their Log-ins appropriately.

c.    All passwords and usernames are to be kept secure and confidential and should be changed upon request from us.  Access to Virtuoso.com requires compliance with the then-current Virtuoso.com Terms of Service.  With regard to leisure advisors who are new to the Network, we may require these advisors to fulfill certain training requirements prior to issuing a new Log-in. Please direct any inquiries to us if you have questions about who may receive a Log-in or other Virtuoso.com access.
 

4. Preferred Suppliers.

a.    Preferred Suppliers.  We are not a partner, principal or joint venturer of any Preferred Supplier.  Preferred Suppliers are independently owned and operated businesses, and are not under our control or direction.  We select Preferred Suppliers based on Member Agency recommendations and other considerations, and practical realities prevent us from being able to guarantee any Preferred Supplier’s quality of operations or financial stability. Furthermore, if and when you attend any Virtuoso event, participation is at your own risk, and we cannot guarantee any person’s safety, security, or satisfaction with the venues, vendors, or operators. You assume the responsibility of investigating all event venues, vendors, and operators in advance and making any alternative arrangements that you may deem appropriate.  YOU ACKNOWLEDGE AND AGREE THAT WE CANNOT AND HAVE NOT MADE ANY GUARANTEES, REPRESENTATIONS OR EXPRESS OR IMPLIED WARRANTIES REGARDING ANY PREFERRED SUPPLIER, ANY PREFERRED SUPPLIER’S FINANCIAL STABILITY, OR THE FITNESS OR QUALITY OF PRODUCTS AND/OR SERVICES SUPPLIED BY ANY PREFERRED SUPPLIER.  You are responsible for performing appropriate risk assessments and due diligence investigations to determine whether or not you should recommend any Preferred Suppliers to your clients and/or attend any Virtuoso event, in your discretion.  The Releasees will not be liable to you or any of your clients for any damage or liability caused by any act or omission of any Preferred Supplier, or any other venues, vendors, or operators related to a Virtuoso event.  We recommend that you promptly inform us of problems or concerns with Preferred Suppliers (such as late commission payments and customer service problems) so that we can address problems prior to their effect on the Network as a whole.  Please consider educating your clients on various protective steps available, including using a credit card to book travel and purchasing appropriate travel insurance.

b.    Support of Preferred Suppliers.  For the benefit of the Network, you should use reasonable efforts to support and promote our Preferred Supplier program, in general.  However, every Preferred Supplier may not meet the needs of your clients and business, and some Preferred Suppliers may be inappropriate for you to recommend to your clients based on the circumstances and your risk profile.  The ultimate choice of the Preferred Supplier belongs to you.

5. Affiliation.

a.    To receive Virtuoso benefits and amenities, you must book one hundred percent (100%) of your Preferred Supplier production through a Member Agency (if you operate as an IC Entity, this refers to your Host Agency) using only that Member Agency’s ARC Number, IATA Number, CLIA Number, TIDS Code, or other Preferred Supplier specified number, as applicable. All Virtuoso Preferred Supplier production must be credited to Virtuoso. You must follow all booking processes and procedures as directed by Virtuoso from time to time.  You are prohibited from having a Log-in through more than one (1) Member Agency.  

b.    Virtuoso does not allow dual affiliation with any travel consortium, network, organization, association, or other entity (for purposes of this section, a “Travel Network”) that is focused on leisure travel.  Virtuoso does allow dual affiliation with any Travel Network that is focused on corporate travel (subject to your compliance with the requirement that all Virtuoso Preferred Supplier production must be credited to Virtuoso as specified in this Agreement).  Virtuoso may determine, in its discretion, whether a Travel Network is focused on leisure travel or corporate travel, as applicable. You agree to disclose any and all Travel Network(s) (whether leisure or corporate) in which you are a participant or member at any time requested by Virtuoso. Membership or participation in any Travel Network prohibited by this Section 5(b) or other violation of this Section 5 is a breach of this Agreement. If Virtuoso learns or has reason to believe that you (either as an individual or as an IC Entity) are dual affiliated in violation of this Section 5(b), Virtuoso may, but is not required to, give you notice and an opportunity to comply with this Section 5(b). If you fail to do so within the timeframe stated by Virtuoso, Virtuoso may terminate your Network access without further notice. The terms of this Section 5(b) do not limit Virtuoso’s other termination rights as stated in this Agreement.

c.    IC Entities are not “Virtuoso Member Agencies.” IC Entities must not represent or imply that they are “Virtuoso Members.”  Please refer to our Additional Standards for Branding and Advertising for guidance on describing affiliation in your branding and marketing.  Owner/managers of IC Entities are not considered to be Member Agency owner/managers.

6. Customer Mailing Lists.

If you are an independent contractor and send individualized marketing separate from your Host Agency, you must provide Virtuoso your customer mailing list for centralized distribution of client publications, direct mail, electronic mail and so forth.  You agree to comply with the data formats required by us for submitting client information, as well as publication personalization data. Customer mailing lists are protected by the confidentiality obligations set forth in Section 8 of this Agreement.  You will receive electronic samples of all distributed materials.  It is highly recommended that you update your customer mailing list regularly to maximize response.  We may perform duplication checking processes on your customer mailing list.  We will typically alert you when a name is duplicated with another Member Agency.  You agree to comply with Virtuoso’s Additional Standards for Duplication in order to determine client name allocation when duplication occurs.  Client relationships may be changed at the written request of the client.  You hereby warrant, represent and undertake to ensure that all relevant and desirable consents are obtained from clients and other measures have been taken to enable full use and transfer of your clients’ data for Virtuoso’s marketing activities (including without limitation, the Direct Marketing Program), duplication checking processes, data analysis, and Virtuoso’s other services and activities as contemplated herein.

7. Conduct.

You agree to promote Virtuoso products and services to clients and prospects in a professional, honest and reputable manner. You should act as an advocate for your clients.  You agree to conduct yourself as a professional at all times in travel industry venues and events. You agree to treat all Preferred Suppliers with courtesy and respect, to treat Virtuoso and other Member Agencies professionally, and to refrain from criticizing them in public venues.  You should follow all applicable industry organization guidelines in your jurisdiction. Your conduct should, at all times, preserve your reputation and the reputation of the Network as a whole.

8. Confidentiality.

a.    Virtuoso Confidential Information is our exclusive property and it must not be shared or disclosed by you to any other person for any reason (whether inside or outside of the Network), except: (i) to your Representatives (if applicable) on a strictly need-to-know basis, provided you have obtained an appropriate written agreement with each of them to enable compliance with this Section 8, (ii) as necessary to be disclosed in your normal course of business, (iii) with our prior written consent, or (iv) as may be required by law (subject to Section 8(c) below).  Virtuoso Confidential Information (including commission structures and net fares) must not be used to negotiate separate contracts with suppliers or create competing offerings. These confidentiality obligations extend beyond termination of your Network access. Violating these confidentiality obligations may cause irreparable harm and severe economic loss to Virtuoso. As such, you agree that (i) damages alone would not be an adequate remedy for your breach of this Section 8, and (ii) in the event of your breach or anticipated breach of this Section 8, we will be entitled to injunctive relief (without the necessity of showing damages or posting bond) in addition to any other remedies to which we may be entitled.

b.    “Virtuoso Confidential Information” means all information regarding the business and affairs of Virtuoso and the Network which is not generally and readily available to the public (whether or not such information is marked “confidential,” and whether in writing or conveyed orally, electronically or by any other method). Virtuoso Confidential Information includes but is not limited to:  (i) Virtuoso client lists and client information (excluding your client list and/or customer mailing list and other client information supplied by you to us), (ii) Member Agency lists and Member Agency information, (iii) Preferred Supplier lists, programs and information, including contracted rates, amenities and/or other benefits (including without limitation, all Virtuoso commissions, any information concerning the Virtuoso Hotel and Resort Program, the Virtuoso Air Program, and the Virtuoso Voyages  Program or successor program, as well as any other program developed by us, any Virtuoso direct mail and publications, and all other Virtuoso enhancements), (iv) all techniques, concepts, processes, methods, technologies, and other information including, without limitation, all data, know-how, trade secrets, formulations, analyses (including segmentation analyses), compilations, studies, collections of data, proposals, plans, and strategies, (v) any technology, web-interface, database, web-content or travel related marketing materials, (vi) Virtuoso.com and all non-public information displayed therein, (vii) business information, financial data, financial plans, budgets, products, sales information, personnel data, product tests, pricing and cost information (including without limitation, fee structures, pricing policies, commissions, and profit margins), (viii) all Professional Development and Virtuoso Travel Academy content, (ix) any information that a Preferred Supplier designates as confidential from time to time, provided we give written notice to you of same, (x) information regarding any acquisition or joint venture arrangements or other enterprises with which we have business relationships or affiliations, (xi) information disclosed to us by third parties which we are obligated to treat as confidential, and (xii) any information developed by you as a result of any of the foregoing.  We may update this definition of Virtuoso Confidential Information at any time by providing you with written notice of same.  Virtuoso Confidential Information does not include any information:  (i) that is generally available to the public at the time such information is received by you; (ii) that subsequently becomes generally available to the public, other than as a breach of this Agreement by you; or (iii) that is lawfully in your possession through no violation of a confidentiality obligation to us.  

c.    If you are requested or compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process) to disclose any Virtuoso Confidential Information, you must immediately provide written notice to us.  You agree to keep us informed of all such matters so that we may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section 8.  In the event that such protective order or other remedy is not obtained or we waive compliance with the provisions hereof, you agree to furnish only that portion of the Virtuoso Confidential Information which is legally required (as advised by your counsel) and to give advanced written notice to us of the Virtuoso Confidential Information to be disclosed.

d.    Upon termination of your Network access, you agree to return or destroy, at Virtuoso’s direction, all Virtuoso Confidential Information and all copies thereof in any form or media in your possession or control.  All segmentation analyses prepared for you must be returned to us.  You agree to provide a written affidavit prepared by us that certifies your compliance with your obligations set forth in this Section 8.

e.    If you are an independent contractor and send individualized marketing separate from your Host Agency, your client list and/or customer mailing list supplied to us in connection with this Agreement will not be shared or disclosed by us to any other person for any reason (whether inside or outside of the Network), except: (i) to our employees, contractors, advisors, and consultants on a need-to-know basis, provided we have obtained an appropriate written agreement with each of them to enable compliance with this Section 8(e), (ii) as necessary to be used and disclosed in our normal course of business or as reasonably necessary for us to provide assistance to you and/or perform services and Network functions (which functions and purposes may include, without limitation, marketing services, client name de-duplication, data analysis, preparing and providing transaction data reports, market research, Network management and administration, quality control, monitoring for legal compliance and compliance with this Agreement, accounting and auditing, and fraud prevention), (iii) with your prior written consent, or (iv) as may be required by law.  The confidentiality obligations in this Section 8(e) do not extend to any information:  (i) that is generally available to the public at the time such information is received by us; (ii) that subsequently becomes generally available to the public other than as a breach of this Agreement by us; (iii) that is lawfully in our possession through no violation of a confidentiality obligation to you; or (iv) that is aggregate and/or de-identified in nature that has been compiled and/or developed by us from the data received from you or your Member/Host Agency via Virtuoso.com, Secure Connect software, or otherwise (provided that such information does not reveal individual client identities or your identity). Notwithstanding anything to the contrary herein, during and after the term of this Agreement, Virtuoso may retain any and all information you provide to us, provided that we will not disclose any information that identifies you or could reasonably be connected to you, except as permitted herein.  Additionally, any and all information you provide to us may be electronically archived by Virtuoso in accordance with our automated security and/or disaster recovery procedures as in effect from time to time. Any information you provide may be stored on Virtuoso’s servers or on third-party servers.
 

9. Branding and Advertising.

a.    All Virtuoso Marks and Virtuoso Content are our sole and exclusive property. Your use of the Virtuoso Marks, and any goodwill arising therefrom, will inure to our sole benefit.  We may monitor the quality of your services provided in connection with the Virtuoso Marks to ensure that such services conform to our quality standards.  “Virtuoso Content” means any content developed or provided by us and made available to you in any form or media, including information and content that is developed by you based on content developed and/or supplied by us.  

b.    You agree to comply with all Additional Standards for Branding and Advertising distributed by us when you use any Virtuoso Marks and/or Virtuoso Content in any of your marketing or advertising materials (if applicable).

c.    You will not use, maintain or register any uniform resource locator (“URL”) or domain name that includes any Virtuoso Mark or any mark that is confusingly similar thereto without our prior written consent.  Within ten (10) business days of the execution of this Agreement, you agree to disclose to Virtuoso all domain names or URLs incorporating a Virtuoso Mark, or a mark that is similar thereto, that is used, maintained or registered by you in any jurisdiction (“Infringing Domain Name”), and you agree to transfer all of such Infringing Domain Names to us for $1.00 USD each.  At our request and/or upon termination of your Network access, you must disclose all Infringing Domain Names you have used, maintained or registered, and transfer all of such Infringing Domain Names to us for $1.00 USD each.  Additionally, you agree not to bid on any Virtuoso Marks as key words in online search engines.

d.    Please be alert for and make Virtuoso aware of any marks used by other parties that would, in your opinion, be likely to cause confusion with any of the Virtuoso Marks.
 

10. Improper Solicitation.

a. Improper solicitation of clients.

Improper solicitation of clients of other Member Agencies by you (including through your Representatives, if applicable) is prohibited.  You must not attempt to solicit for additional business any client of another Member Agency at any time or in any manner, including without limitation, on any Virtuoso departure or at any other Virtuoso event.  You must not encourage nor willingly allow your clients to improperly solicit clients of other Member Agencies at any time or in any manner, including without limitation, on any Virtuoso departure or at any other Virtuoso event.  For purposes of this Section 10(a), references to “solicit” or “solicitation” mean any direct effort to obtain or seek business, and references to “improper solicitation” mean any solicitation of clients of another Member Agency, except as specifically permitted herein.  This section does not prohibit general advertising or other communication of the availability of services you offer, marketing list purchases, or attendance at consumer events, provided that such actions are not targeted to clients of another Member Agency and no improper solicitation occurs.

  ii.    Examples of improper solicitation include, but are not limited to:

 

  •  Encouraging or otherwise seeking out clients of another Member Agency to solicit those clients for business.
  • Knowingly directly contacting and/or marketing to a client that is on the client list of another Member Agency.
  • Using another Member Agency’s client list to directly or indirectly contact or market to that Member Agency’s clients.
  • Knowingly directly soliciting another Member Agency’s clients, through inappropriate access to the Member Agency’s client list, regardless of how such access was obtained, or through attendance at Virtuoso events (including Virtuoso Voyages or successor program departures and other Virtuoso-sponsored travel), including such actions as passing out business cards.
  • Any other direct action that is reasonably understood or could be reasonably anticipated to target a client of another Member Agency.  

b.    Improper solicitation of employees and/or independent contractors

  i.    You, including through your Representatives (if applicable), must not initiate direct contact with or solicit or otherwise target any employee or independent contractor of another Member Agency for employment or contracting purposes at any time or place (including at industry events and Virtuoso-sponsored events), except as permitted below.

  ii.    Improper solicitation of employees or independent contractors includes any direct contact initiated by you or anyone on your behalf by in-person meeting, phone, letter, e-mail, or other electronic, written or verbal method at any time (including at industry events, Virtuoso familiarization trips, and other Virtuoso-sponsored events) concerning any offer of employment or other similar contracting arrangement or concerning any indication that a position is available if the individual is ever dissatisfied with their current position with another Member Agency.

  iii.    Virtuoso events must not be used as opportunities for advisor recruiting; no recruiting messaging or recruiting events are allowed. Additionally, while attending any Virtuoso event, do not invite employees or independent contractors of another Member Agency to your (or your Member/Host Agency’s) hosted parties, gatherings or other events, without prior documented approval from the employee’s or independent contractor’s Member Agency owner. You must comply with all additional event-related standards and codes of conduct distributed by Virtuoso.

  iv.    This section does not prohibit you from employing or contracting with any individual who was previously employed by or contracted with another Member Agency if the individual initiates contact with you concerning the employment or similar arrangement and if the individual was not otherwise improperly solicited.

  v.    This section does not prohibit general advertising or other communication of the availability of positions of employment or independent contractor availability through any method of general circulation that is not targeted to specific employees or independent contractors associated with another Member Agency.  Permitted methods of advertising employment or contracting availability include advertisements in newspapers, magazines, websites, and/or trade publications, attendance (including having a booth, station, or other presence) at industry trade shows or other events, and any other method of general advertising that is not reasonably calculated to target Member Agencies or their existing employees or independent contractors.

b. Improper solicitation of employees and/or independent contractors

  i.    You, including through your Representatives (if applicable), must not initiate direct contact with or solicit or otherwise target any employee or independent contractor of another Member Agency for employment or contracting purposes at any time or place (including at industry events and Virtuoso-sponsored events), except as permitted below.

  ii.    Improper solicitation of employees or independent contractors includes any direct contact initiated by you or anyone on your behalf by in-person meeting, phone, letter, e-mail, or other electronic, written or verbal method at any time (including at industry events, Virtuoso familiarization trips, and other Virtuoso-sponsored events) concerning any offer of employment or other similar contracting arrangement or concerning any indication that a position is available if the individual is ever dissatisfied with their current position with another Member Agency.

  iii.    Virtuoso events must not be used as opportunities for advisor recruiting; no recruiting messaging or recruiting events are allowed. Additionally, while attending any Virtuoso event, do not invite employees or independent contractors of another Member Agency to your (or your Member/Host Agency’s) hosted parties, gatherings or other events, without prior documented approval from the employee’s or independent contractor’s Member Agency owner. You must comply with all additional event-related standards and codes of conduct distributed by Virtuoso.

  iv.    This section does not prohibit you from employing or contracting with any individual who was previously employed by or contracted with another Member Agency if the individual initiates contact with you concerning the employment or similar arrangement and if the individual was not otherwise improperly solicited.

  v.    This section does not prohibit general advertising or other communication of the availability of positions of employment or independent contractor availability through any method of general circulation that is not targeted to specific employees or independent contractors associated with another Member Agency.  Permitted methods of advertising employment or contracting availability include advertisements in newspapers, magazines, websites, and/or trade publications, attendance (including having a booth, station, or other presence) at industry trade shows or other events, and any other method of general advertising that is not reasonably calculated to target Member Agencies or their existing employees or independent contractors.
 

11. Rebating.

a.    Virtuoso’s stated objective is to be a value added, high-end travel leader; as such, you should not distinguish Virtuoso product based on price, but rather by experience, knowledge, and travel expertise.  Virtuoso believes that Rebating (defined below) diminishes the value of the Network as a whole.  “Rebate” or “Rebating” means giving the client anything of value, including price discounts (whether in the form of cash back or paying a lesser amount for the travel) and significant (greater than five percent (5%)) non-cash value-added amenities.  Rebating is against the recommended policy of Virtuoso.  While the decision to add value to Virtuoso travel related products is at your discretion, and is sometimes a competitive necessity, Virtuoso strongly recommends that you limit any non-cash value-added amenities to no more than five percent (5%) of the total travel departure fare.

b.    You agree not to use any Virtuoso Mark in any marketing or advertising materials that offer Rebates or discounted pricing not available to other Member Agencies (except where Preferred Suppliers provide special discounted pricing to the Member Agencies of a specific physical geographic area).  You may use the Virtuoso Marks in promoting exclusive amenity programs as long as these programs do not equate to Rebates.
 

12. Brokering.

Brokering of Virtuoso offers, products, services, amenities and/or benefits is prohibited. Network benefits (including Network access, access to Professional Development and the Virtuoso Travel Academy, Virtuoso.com, and exclusive offers and amenities) are available only to Member Agencies and, subject to this Section 12 and the other terms of this Agreement, their IC Entities and Representatives that meet all requirements and criteria established by Virtuoso for Network participation from time to time.  “Brokering” means offering or allowing access to Virtuoso offers, products, services, amenities, and/or benefits to any person or entity that does not meet the requirements stated in the previous sentence in order for such offers, products, services, amenities and/or benefits to be directly or indirectly promoted or provided to consumers. Brokering includes, without limitation:  (i) transferring, sharing or assigning Log-ins in violation of Section 3; (ii) offering or allowing access to Virtuoso offers, products, services, amenities and/or benefits to any public-facing third-party program, e.g., providing Virtuoso offers, products, services, amenities and/or benefits to a financial institution, credit card company, loyalty program or other entity or program, to be promoted to consumers without Virtuoso’s prior written approval; and (iii) any other direct or indirect action by you that allows any person or entity to have Network access and we determine such access to be inconsistent with the terms and spirit of this Agreement and/or in conflict with the best interests of the Network. Without limiting the generality of the foregoing, you must obtain prior written approval from Virtuoso before granting Network access to any person or entity that (i) has four or more full-time or part-time personnel (whether employees or independent contractors), (ii) operates in a brick-and-mortar business location, or (iii) is primarily located and/or primarily operates outside of your Member Agency’s (or, as applicable, Host Agency’s) Member Region; we may determine, in our discretion, that any of the foregoing constitute Brokering as prohibited by this Agreement. Additionally, Virtuoso has the right at any time to audit the persons and entities to which you have granted Network access and you agree to provide all information and documentation we reasonably request in connection with same (including without limitation, a complete and detailed listing and description of the persons and entities to which you have granted Network access and any related size, ownership, location, or other information and supporting documentation we request).

13. Travel Supplier Status.

Member Agencies and IC Entities must not represent or imply that they are a Preferred Supplier or that they have any status as a supplier within the Network, unless they have completed our Preferred Supplier approval process and signed a Virtuoso Preferred Supplier Agreement.  Targeting other Member Agencies in connection with the promotion of exclusive offerings is prohibited, unless the other Member Agencies have consented.  Of course, you are not prohibited from advertising or promoting your products and services to your clients or the general public, subject to the other terms of this Agreement.

14. Termination.

a.    Termination.  You or Virtuoso may terminate your Network access at any time without cause or advance notice.  Additionally, Virtuoso may terminate your Network access immediately in the event you breach this Agreement or an Additional Standard, or you engage in conduct which, in our discretion, could damage the reputation or other business interests of Virtuoso, the Network, or any other Member Agency, as applicable.  In addition to the right to terminate your Network access, we reserve the right to temporarily or permanently suspend your Network access and the access of your Representatives (if applicable) at any time without cause or advance notice, including revocation of any applicable Log-ins and Virtuoso.com profile inactivation.

b.    Effect of Termination.  Upon termination of your Network access for any reason, your access to and participation in the Network will cease, and your Virtuoso profile will be inactivated.  Furthermore, Virtuoso may, in its sole discretion, terminate your Representatives’ access to the Network (if applicable) and their profiles may be inactivated.  Upon notice of termination from either party, we may suspend distribution of any Virtuoso publications and marketing materials that may be delivered to your clients after termination since you will no longer be able to fulfill Virtuoso offers, benefits or amenities.  Upon termination, we will be entitled to notify the Network, including all Member Agencies and Preferred Suppliers, that you are no longer part of the Network.
 

15. General.

a.    Licenses, Permits, Laws and Regulations.  You agree to maintain all necessary and appropriate licenses, permits and other approvals, and you agree to meet and comply with any other applicable laws, rules, and regulations in your jurisdiction concerning your business operations and the activities contemplated under this Agreement.

b.    Privacy and Security.

  i.    If you operate only as an individual employee or independent contractor, you represent and warrant that you will comply with all applicable laws and regulations governing the receipt, provision, processing, and/or transmission of individuals’ personal data.


  ii.    If you operate as an IC Entity, you represent, warrant, and undertake: (i) to provide the level of privacy protection for all individuals’ personal data as is required by all applicable laws and regulations governing your receipt, provision, processing, and/or transmission of individuals’ personal data; (ii) to implement a written privacy policy that complies with all applicable privacy and security laws and regulations; and (iii) that your disclosure of individuals’ personal data to us (and our use and disclosure thereof for Virtuoso’s and the Network’s purposes as described in Section 6 and Section 8 of this Agreement) complies with all applicable laws and regulations, and you will give any necessary notifications to and obtain any necessary consents from the individuals to whom the information relates for such use and disclosure.  We recommend that you consult with legal counsel concerning compliance with privacy and security laws and regulations.

  iii.    If you operate as an IC Entity, if and to the extent Virtuoso provides or transmits European Union residents’ personal data to you, you must provide at least the same level of privacy protection for such EU residents’ personal data as is required by the EU-U.S. Privacy Shield framework (the “Privacy Shield”) principles and promptly notify Virtuoso if at any time you make a determination that you can no longer meet this obligation.  Upon such a determination, you must cease processing EU residents’ personal data received from Virtuoso or take other reasonable and appropriate steps to remediate any processing of such personal data not in compliance with the Privacy Shield principles.  You must process such personal data only for limited and specified purposes consistent with the consent provided by the relevant data subjects.

c.    No Partnership.  Neither party to this Agreement is a partner, agent, employee, or joint venturer of the other.  Nothing in this Agreement or in the parties’ course of conduct establishes any agency, partnership, employment, or joint venture relationship between you and us.  Neither party is authorized to make any representations on behalf of the other or to enter into any contracts on behalf of the other.

d.    Law and Venue; Attorneys’ Fees.  This Agreement is governed by the laws of the State of Texas, United States of America, without regard to its provisions on conflicts of law.  Exclusive venue and jurisdiction of any suit brought in connection with this Agreement will lie in Tarrant County, Texas, United States of America and both parties submit to personal jurisdiction within Tarrant County, Texas, United States of America.  In any dispute or litigation relating to this Agreement and/or your Network participation or access, the prevailing party will be entitled to its reasonable attorneys’ fees and costs.

e.    Insurance.  The policies required hereunder may be obtained in your own name or you may be covered by your employer’s or Member/Host Agency’s policies. If you are located in a region where such insurance is reasonably available, you must be covered by the following insurance coverages during the entire term of this Agreement (or their equivalent, if you are located in a region where these types of coverage are available under a different name):

  i.    Professional Travel Agent/Tour Operator or other appropriate errors and omissions / professional liability insurance with worldwide coverage with a minimum of $1,000,000 USD equivalent per occurrence ($3,000,000 USD equivalent per occurrence is preferred and recommended) for the activities contemplated by this Agreement.

  ii.    General liability insurance with a minimum of $1,000,000 USD equivalent combined bodily injury/property damage limit per occurrence/$2,000,000 USD equivalent aggregate ($3,000,000 USD equivalent per occurrence is preferred and recommended). The general liability policy required herein must name Virtuoso, Ltd., its officers, directors, employees, affiliated companies, owners, and joint ventures and any of their respective agents, directors, officers and employees as additional insureds.

  iii.    Other Requirements. All of the required coverages must (i) contain provisions specifying that the policies are primary and non-contributory to any coverages carried by Virtuoso, Ltd., its officers directors, employees, affiliated companies, owners, and joint ventures and any of their respective agents, directors, officers and employees and will apply without consideration for other policies separately carried, and (ii) provide a waiver of subrogation in favor of Virtuoso, Ltd., its officers, directors, employees, affiliated companies, owners, and joint ventures and any of their respective agents, directors, officers and employees, and your indemnification obligations under this Agreement.  Upon request, you agree to provide proof of your insurance coverage as required herein and any changes thereto during the term of this Agreement.  

f.    Member’s Representatives and IC Entities.  You agree to enter into an appropriate written agreement with each of your applicable Representatives that requires them to comply with the applicable terms and conditions of this Agreement.

g.    Indemnification.  You agree to defend, indemnify and hold the Releasees harmless from and against any and all claims, regulatory actions, demands, damages, losses, injuries, fines, penalties, expenses (including reasonable attorneys’ fees and court costs) and liabilities suffered or incurred by or brought against a Releasee arising out of or relating to any act or omission by you (and, if you operate as an IC Entity, any act or omission of your Representatives), including without limitation, a violation of applicable law, a breach of this Agreement or a breach of any of your representations or warranties set forth herein.  

h.    Assignability.  You agree not to assign this Agreement without our written consent.  

i.    Partial Invalidity and Severability.  All rights and restrictions herein are binding to the extent they do not violate any applicable laws and are intended to be limited only to the extent necessary to render this Agreement valid and enforceable.  If any terms of this Agreement are held to be illegal, invalid or unenforceable by a court, the remaining terms will remain in full force and effect.

j.    Waiver.  Any term or condition of this Agreement can be waived if both parties agree in writing.  No failure on the part of a party to exercise any right or remedy created hereunder will operate as a waiver.  

k.    Representations and Warranties.  In addition to the other representations and warranties you have made in this Agreement, you represent and warrant that you have and will maintain the ability to fulfill your obligations under this Agreement in a highly competent manner and you will use commercially reasonable efforts to ensure our satisfaction with your products and/or services, and that you will use due care in providing, or selecting others to provide, any products and/or services in connection with this Agreement.

l.    Entire Agreement/Amendment. This Agreement, including any other documents incorporated herein by reference, constitutes the entire agreement between the parties respecting the subject matter of this Agreement and supersedes all other agreements concerning the subject matter herein. No oral statements or prior written material concerning the subject matter of this Agreement not specifically set forth in this Agreement or incorporated by reference into this Agreement will be of any force or effect.  Except as specified in this Agreement, no changes or additions to this Agreement will be recognized unless made in writing and signed by both parties.  Notwithstanding the foregoing, Virtuoso may distribute modifications to this Agreement from time to time by any reasonable means of notice or distribution, including without limitation, by Network-wide email communication, individual email, regular mail, or posting on Virtuoso.com; the modified agreement will be effective on the earlier of: (i) thirty (30) days after it is posted or distributed or (ii) your click-through acceptance (as applicable). Continuing in the Network beyond that time acknowledges and confirms your acceptance.

m.    Survival.  The terms of Sections 4, 8, 9, 12, 14, and 15 will survive the termination or expiration of your Network access, along with all other provisions that are expressed or intended to survive termination or expiration of your Network access.

n.    Direct and Indirect Actions.  You must not take or allow any actions or omissions indirectly (whether through an agent, a Representative, an IC Entity, or any other person or entity under your direct or indirect ownership, control, or direction) which, if taken or allowed by you directly, would be a violation of this Agreement.
 

Definitions

Additional Standards” means all standards, requirements, policies, directives, procedures, and guidelines concerning any matter related to Virtuoso, a Virtuoso program, the Network, and/or your participation therein distributed by us from time to time, as discussed further in this Agreement. Additional Standards may include, without limitation, program requirements, standards concerning branding and usage of the Virtuoso Marks, usage of and access to Virtuoso.com, participation guidelines, booking requirements, and client name duplication.  

Log-in” means a Virtuoso.com unique user identification number, username, password, and/or other Virtuoso.com access.

Member Agency” or “Member Agencies” means one or more Virtuoso Member travel agencies in the Network.

Preferred Suppliers” means the airlines, cruise lines, tour operators, on-site operators, hotel and resort properties, tourism boards, and all other travel suppliers or operators that are accepted by us into the Network as “Virtuoso Preferred Suppliers.”

Professional Development” means all Virtuoso proprietary professional development and best practices content, including without limitation, training, educationals, collateral, coursework and activities made available to Member Agencies.  Professional Development also includes Virtuoso Travel Academy content and materials.

Releasees” means Virtuoso, its affiliated entities, and their respective owners, officers, directors, employees, agents, successors, and assigns.

Representatives” means, with respect to any party, all individual representatives, including officers, directors, employees, contractors, owners, and agents. With respect to you, the term Representative includes (as applicable) owners, managers, officers, directors, employees, independent contractors, agents, IC Entities, and all other hired, contracted, and/or affiliated persons and entities. All Representatives are subject to, and must comply with, a Standards for Access Agreement.  

Virtuoso.com” means Virtuoso.com and any successor program or application designated by us.

Virtuoso Marks” means all Virtuoso company names, trade names, trademarks, service marks, logos, symbols, brands, taglines, domain names and trade dress, whether registered or unregistered, in any jurisdiction worldwide.  

Virtuoso Travel Academy” means the Virtuoso proprietary content, collateral, coursework and activities referred to as the “Virtuoso Travel Academy” program, including any structures such as the Virtuoso Travel Academy website, Learning Management System, live or virtual classrooms, podcasts and any other form or media used to deliver such content.