Supplier Terms & Conditions

Supplier Terms and Conditions – Smart Dive Travel.

Version 01/Feb/2018

Smart Dive Travel, located in Kibbutz Tzora, Israel (hereinafter :"Smart Dive Travel" or "us") operates an Internet booking platform accessible via the www.smartdivetravel.com website, related websites, affiliate and partner websites, apps, tools, platforms, or other facilities (hereinafter :"Platform"). The Platform allows Dive Centers, Dive Resorts, Live-Aboard, tour operators, and activity organizers (hereinafter :"Supplier" or “Operator”) to offer Diving Tours, Diving Trips, Diving courses, Diving packages, leisure activities, and other marine related tourism services (hereinafter :"Service(s)") to end customers (hereinafter :"Customer(s)"), and to conclude contracts directly with Customers for such services. Besides to Customers, our commercial sub-agents may also access the Platform to book Services from Suppliers.

Smart Dive Travel only provides the Platform to allow Suppliers to offer and to sell their Services to Customers. Smart Dive Travel acts as a commercial agent authorized and appointed by Supplier. Smart Dive Travel, through an intermediary agreement with a Customer, will ease the purchase of Services from Supplier by that Customer; but, in no event will Smart Dive Travel considered a party to any agreement whereby a Customer purchases Services from Supplier.

Duties of the Supplier

•  The Supplier represents and warrants that all information with regard to his offer shall at all times be true, accurate, and not misleading. The Supplier shall update the uploaded information as timely as required for guaranteeing the accuracy of the information provided. The Supplier may be held liable for all Customers claims based upon alleged inaccuracies of the uploaded information as displayed on the Platform (such as information about Services or prices). The Suppliers are responsible for the accuracy of the information in the language version as submitted by way of their Supplier Account. To the extent the Supplier is aware or may be expected to be aware of any inaccuracy in another language version of the uploaded information, the Supplier shall inform Smart Dive Travel immediately.
•  The Supplier represents and warrants that all Services shall only be rendered in compliance with all applicable laws, in particular with the laws of the country of the Suppliers residence as well as in compliance with all applicable laws of the country the Services are rendered in and not to violate any rights of third parties thereby. The Supplier particularly warrants (a) to comply with any consumer protection and other protection, information and consultation duties and regulations, and (b) to dispose of all administrative and other permissions and licenses as well as insurances and the like needed in the jurisdiction of the respective country for fulfilment of the contractual obligations and to instruct its service partners according to these terms and conditions accordingly. Upon request, the Supplier will provide respective evidence and documentation, including copies of permits and licenses. In the event of alleged non-compliance of the Services provided by the Supplier, the Supplier shall without undue delay cooperate, at his own expense, with any administrative authorities or competition/consumer protection associations.
• The Supplier represents and warrants that he will provide Customers with all necessary information for the execution of the Service (e.g. meeting point and time, clothing, equipment, etc.) well in advance. The Supplier is required to check the e-mails stated in the Supplier Account at least once per day. The Supplier is responsible for the inclusion of his individual general terms and conditions, which go beyond the terms and conditions provided by Smart Dive Travel for the contract between the Customer and the Supplier.

The Supplier represents and warrants that all employed guides possess the legal allowances and meet all necessary legal requirements, including professional qualifications and allowances. The Supplier is fully responsible for the conduct of the guide with regard to Customers or other persons who legitimately use the Services.

• The Supplier may only offer his own Service via the Platform. The Supplier may not offer Services as an intermediary or agent. To the extent the Supplier nevertheless acts as intermediary or agent he shall be treated as contracting party and shall be held liable for any respective damages. The Supplier needs to be prepared to perform the offered Service. It is not allowed to upload sham Services.

The rates, availability, amenities, and restrictions for your Service, and mandatory fees you make available through the Platform have to be equal to or better than what you make available through your own channels or any third party channels. Customers who book a Service through the Platform will be treated at least as well as Customers that book through your own or any third party channels.

• The Supplier shall contract a comprehensive general liability insurance which insures all Services that are offered through the Platform. It is obligatory to agree upon an insurance sum that is appropriate for the given booking volumes and risk. The general liability insurance also needs to cover potential regress claims of Smart Dive Travel. Specifications concerning the general liability insurance must be documented electronically and shall be sent to Smart Dive Travel or uploaded within the Supplier’s Account. This includes: name and address of the General Liability Insurance, number of the insurance policy, and the insurance sum. Smart Dive Travel reserves the right to inspect the insurance policy upon request and demand proof of payment for the insurance premium. The Supplier shall update such uploaded information immediately for guaranteeing the accuracy of such information at any time.

The prices provided by the Supplier through the Supplier Account for his offers and Services shall include and show separately VAT, sales taxes and such other applicable national, governmental, provincial, state, municipal or local taxes or levies. It is not legitimate to ask Customers to pay any further salaries, taxes, dues, commissions or cover other expenses, upon the execution of the Service.

• The Supplier is obliged to provide Customers with a proper invoice that complies with all applicable tax requirements.
• Supplier grants Smart Dive Travel the right to change or cancel free of charge the date, the time or language of Service as well as the number of persons attending the Service, up to Forty Eight (48) hours after a Customer booked a Service, if other dates, times, or languages for the booked Service are available.

Displayed Content & Intellectual Property
The Supplier grants Smart Dive Travel a non-exclusive, royalty free and worldwide right and license (or sublicense as applicable):

• to use, reproduce, have reproduced, distribute, sublicense, communicate and make available in any method and display the intellectual property rights of and in the content submitted through the Supplier Account pursuant to these Conditions and which are necessary for Smart Dive Travel to exercise its rights and perform its obligations under these Conditions;

to use, reproduce, have reproduced, process, distribute, sublicense, display and utilize (including without limitation to publicly perform, modify, adapt, communicate, reproduce, copy, translate and make available to the public in any manner whatsoever) the provided content.

• Smart Dive Travel may sublicense, make available, disclose and offer this content (including the relevant intellectual property rights) of the Supplier and all such further rights and licenses set out in this Contract via or in collaboration with (the websites, apps, platform, tools or other devices of) affiliated companies and/or third parties.

In no event shall Smart Dive Travel be liable to the Supplier for any acts or omissions on the part of any third party platforms. The sole remedy for the Supplier in respect of such third party platforms is (a) to request Smart Dive Travel (which has the right and not the obligation) to disable and disconnect with such third party platform, or (b) termination of this Contract, all in accordance with the terms of these Conditions.

• The Supplier is liable for any claim of third parties related to copyright infringements of content he has provided to Smart Dive Travel (see also clause 21. Liability of Supplier and Indemnification).

(Online) Marketing and PPC advertising

• Smart Dive Travel is entitled to promote the Services of the Supplier using the Supplier´s name(s) in online marketing, including e-mail marketing and/or pay-per-click (PPC) advertising.
• It is in Smart Dive Travel´s sole discretion how to advertise the offers of the Supplier on the Platform or on third party websites and in online affiliate networks, including but not limited to ranking and promotion.

The Supplier is aware of the working methods of search engines, such as spidering of content and ranking of URLs. Smart Dive Travel agrees that if the Supplier becomes aware of behavior by third party platforms breaching the Supplier´s intellectual property rights, the Supplier will notify Smart Dive Travel in writing with details of the conduct and Smart Dive Travel will use its commercially reasonable efforts to ensure that the relevant third party takes the necessary steps to remedy the breach.
The Supplier agrees not to specifically target the Smart Dive Travel brand directly through keyword purchases that use Smart Dive Travel's intellectual property rights.

• Smart Dive Travel runs online marketing campaigns at its own cost and discretion.

Responsibility for Content
The Supplier is responsible for content submitted through the Supplier Account, such as for instance descriptions of Services, forum entries, etc. Smart Dive Travel treats such content as external content. Smart Dive Travel also treats Customers content, such as forum entries, reviews, etc. as external content and excludes liability.

• If Smart Dive Travel is notified about or detects content that does not comply with these Conditions or any other legal provisions, Smart Dive Travel may partially or fully delete this content provided that the breach of such rules is not remedied by the Supplier within two days after our notice. If the abusive content originates from a Supplier, Smart Dive Travel is entitled to block access to or delete the respective Supplier Account. Smart Dive Travel will always consider the respective mutual interests in the respective case before blocking or suspending a Supplier Account.
• The Supplier may only upload content and data for which he owns the corresponding (copy) rights. Such information must not abuse privacy rights of Customers, third parties, etc. and needs to comply with the applicable competition laws and other legal requirements.

Cancellations

• Unless agreed otherwise between the Parties, the Supplier is aware and consents that Customers are entitled to cancel their booking free of charge up to 24 (twenty-four) hours before the booked date of Service. There will be no payment received by the Supplier. If Customers cancel the booked Services less than 24 (twenty-four) hours before the date of Service or within any other term agreed on in advance between the Parties, or if the person for whom the Service was booked for does not appear at the date of the Service, Customers are obliged to pay the full price of the Service, which is transferred to the Supplier, minus the commission.
• In the event the Supplier cancels a booking for whatever reason he shall fully refund Customers, unless otherwise agreed between the Supplier and Customer.
• Smart Dive Travel provides costly and intensive efforts to market Services to Customers. Therefore, if Supplier unjustifiably or with negligence fails to deliver or cancels Services that have been booked by Customers, Supplier agrees that Smart Dive Travel may (i) make a full refund to the affected Customer, and (ii) deduct the amount of the refund plus a contractual penalty from any amount due Supplier hereunder. The contractual penalty shall be twenty percent (20%) of the gross selling price of the Service on the Platform for each affected Customer. Smart Dive Travel may, at its sole option, forgo this contractual penalty, in whole or in part, if Supplier provides an alternative but equivalent Service at the same date to the affected Customers.
• In case of “Force Majeure”, which are circumstances beyond the Parties’ reasonable control, including without limitation, natural catastrophe, war, act of terrorism, interruption of electricity and strikes, either Party may suspend or end this Agreement. Furthermore, Supplier shall allow Customers to return purchased tickets for a full refund if a force majeure situation occurs at the travel destination, regardless of whether Supplier continues to provide Services during the affected period of time. Smart Dive Travel will process the refunds and transmit them to affected Customers. In the event that Supplier cancels the Service due to the occurrence of Force Majeure, he must notify the Customer Service of Smart Dive Travel immediately.

Commission Payment to Smart Dive Travel

• Supplier agrees to give Smart Dive Travel a commission for the brokering of contracts with Customers. The amount of the commission, which shall be separately agreed on by the Parties, is understood to be plus any statutory value added tax. The commission will be deducted from the gross amount charged to Smart Dive Travel as the sales price for the Service on the Platform in the agreed currency.
• The NET rate paid by Smart Dive Travel will be billed on a monthly basis at the rates paid by the Customers.

Liability of the Supplier and Indemnification

The Supplier agrees, at his expense, and on an after-tax basis, to indemnify, defend, and hold harmless Smart Dive Travel, each of its affiliates and any of Smart Dive Travel’s or any of its affiliates’ officers, directors, employees, or agents or Smart Dive Travel’s third party distribution partners against any third-party claim, action, loss, damage, expense or other liability (including without limitation, attorneys’ fees and expenses) arising from or relating to (a) the Supplier’s Services, (b) the performance of the Supplier’s duties and obligations under this Contract or any breach or default by the Supplier under this Contract, including, without limitation, a breach of any representation, warranty or covenant, or (c) any allegation that Smart Dive Travel’s or any of its affiliates’ use, reproduction, distribution or display of the Service information as permitted under this Contract infringes or misappropriates the intellectual property rights of any third party. The Supplier agrees to use a counsel reasonably satisfactory to Smart Dive Travel to defend any indemnified claim, and Smart Dive Travel may participate in the defense or settlement of any claim at any time using attorneys selected by Smart Dive Travel. The Supplier also agrees not to consent to the entry of any settlement or judgment without Smart Dive Travel’s prior written consent, which will not be unreasonably withheld by Smart Dive Travel.

Limitation of Liability of Smart Dive Travel

• Smart Dive Travel makes no representations or warranties regarding the Platform, including any temporary or permanent interruption of the operation of the Platform.
• Smart Dive Travel bears no risk with respect to the number, frequency, or type of Services booked through the Platform.

Smart Dive Travel’s liability under the Conditions shall be restricted as follows:

• Smart Dive Travel shall be fully liable for losses caused intentionally or by gross negligence by Smart Dive Travel, its legal representatives or senior executives and for losses caused intentionally by other assistants in performance; in respect of gross negligence of other assistants in performance Smart Dive Travel’s liability shall be as set forth in the provisions for simple negligence in (d) below.
• Smart Dive Travel shall be fully liable for death, personal injury, or damage to health caused by the intent or negligence of Smart Dive Travel, its legal representatives or assistants in performance.
• Smart Dive Travel shall be liable in accordance with the Israeli Product Liability Act in the event of product liability.
• Smart Dive Travel shall be liable for losses caused by the breach of its primary obligations by Smart Dive Travel, its legal representatives or assistants in performance. Primary obligations are such basic duties which form the essence of the Contract, which was decisive for the conclusion of the Contract and on the performance of which the Licensee may rely on. If Smart Dive Travel breaches its primary obligations through simple negligence, then its ensuing liability shall be limited to the amount which was foreseeable by Smart Dive Travel at the time the respective Service was performed.
• Smart Dive Travel shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken.
• Any more extensive liability of Smart Dive Travel is excluded on the merits.

Notices

All notices must be in English, in writing, and sent by email to supplier@smartdivetravel.com or a nationally recognized overnight air courier to the address indicated above. Smart Dive Travel may also provide notice to the Supplier by electronic transmission. Notices are deemed, delivered and received (a) if by a nationally recognized overnight air courier, upon delivery to Smart Dive Travel by such nationally recognized overnight air courier, or (b) if by electronic transmission, when directed to an electronic mail address entered into the Supplier Account by the Supplier.

Term and Termination

• The Contract is concluded for an indefinite period of time.
• The Supplier and Smart Dive Travel may terminate the Contract at any time and without cause. A termination can be done automatically by using the appropriate function in the Supplier Account. Remaining confirmed bookings shall be executed as planned.
• If there are specific indications that a Supplier is culpably violating legal provisions, third party rights, or the Conditions or if Smart Dive Travel otherwise has a legitimate interest, particularly with regard to protecting Customers or other Suppliers against fraudulent activities Smart Dive Travel is entitled to take one or more of the following actions taking into account the respective interest of the Supplier in the respective case in a reasonable manner:
• Issue the Supplier with a warning;
• Delete the Supplier's offers or other content;
• Restrict the Supplier's use of the website;
• Temporarily or permanently exclude (block) the Supplier from the website;
• Contest and cancel existing bookings in the name of the Supplier without taking into account the applicable cancellation policies, and reject Customers’ offers for the conclusion of a Contract in the name of the Supplier.

Final Provision

• No subsidiary agreement has been made. All alterations and amendments to this Contract shall be made in writing to take legal effect.

If any provisions of this Contract are or become invalid or void, the validity of the remaining parts of the Contract shall remain unaffected thereby. Invalid or void provisions shall be replaced by such provisions that are suitable to achieve the same purpose in consideration of the interests of both parties.

• The claims of the Supplier resulting from this Contract may not be assigned or transferred to third parties without the prior written approval of Smart Dive Travel.
• Smart Dive Travel is entitled to assign and transfer its rights and obligations resulting from this contract to affiliated companies.
• This Contract shall be governed by and construed in accordance with the provisions of Israeli Law under exclusion of its conflict of law rules. The place of performance and exclusive legal venue for any disputes arising from or in connection with the performed services shall be Tel Aviv provided that the Supplier is a businessman or legal person under public law or has no place of business or domicile in the State of Israel.