Background
A. The Supplier has agreed with Adventure Out Loud to supply travel services (“Services”) to clients of Adventure Out Loud (“Clients”), in accordance with separate terms and conditions agreed between the parties (“Terms”).
B. This Indemnity shall apply to and form part of every booking arranged by Adventure Out Loud with the Supplier (“Booking”). The Terms shall form part of any contract entered into between the parties, together with this Indemnity. Where any provisions of the Terms are inconsistent with this Indemnity, this Indemnity shall take precedence over the Terms, to the extent of any such inconsistency.
TRAVEL SERVICES
Services
The Supplier shall provide the Services included within a Booking, with all reasonable skill and care and in accordance with the description of such Services provided by the Supplier.
Information
The Supplier warrants that:
1. all information provided to Adventure Out Loud in response to Adventure Out Loud’s Supplier Questionnaire is accurate in all material respects and does not exclude any information of a material nature that a reasonable acquirer of travel services would expect to be aware of prior to purchasing travel services; and
2. all information it provides to Adventure Out Loud for inclusion on Adventure Out Loud’s website, and/or as provided to Clients by Adventure Out Loud, including any details, descriptions, prices, example itineraries and other information in relation to the Services, is accurate and not misleading in any way, is representative of the Services being offered by the Supplier (including as to quality of those Services) and complies with all applicable laws, rules and regulations.
Compliance with law
The Supplier shall not do anything that seeks to or puts Adventure Out Loud in breach of Adventure Out Loud terms and conditions with its Clients and/or under applicable laws and regulations.
Client data: The Supplier undertakes not to use or process Client information supplied to it by Adventure Out Loud other than for the purposes of fulfilling Bookings and not to make any unsolicited contact with Clients nor utilise the Client information for any other purposes, including marketing or other sales purposes. The Supplier shall be liable to the Clients in relation to the Supplier’s compliance with any applicable data protection laws and regulations, in place from time to time.
LIABILITY
Supplier’s responsibility
The Supplier shall be liable to Adventure Out Loud in respect of the proper performance of the Services provided to the Client.
Complaints
The Supplier shall deal promptly with complaints that a Client may make at the time these are raised by a Client, and seek to resolve such complaints to the Client’s reasonable satisfaction in a timely manner. The Supplier will notify Adventure Out Loud about any complaints that have been raised by the Client directly with the Supplier, or any accidents or emergencies that occur prior to or during a Client’s travel arrangements, for its information.
Compliance with Laws
Without limiting any other provision of this Indemnity or the Terms, the Supplier undertakes that all of the Services will comply in all respects with all national, local and trade laws, regulations, codes of practice and local standards, including without limitation, those relating to hygiene, fire, health, safety, and security.
Meaning of Losses
For the purposes of this Clause 2, “Losses” means all claims, demands, actions and other proceedings, damages, losses, costs, compensation, charges and expenses (including, without limitation, the costs and expenses of professional advisers) and any other liabilities of any nature incurred by or made or brought against Adventure Out Loud including without limitation pursuant to:
1. any liability for death, injury or illness (including fatal injury or illness) of any Client;
2. any liability of Adventure Out Loud to compensate any Client in respect of the Services provided and/or any failure by the Supplier to comply with applicable laws or regulations; and
3. any costs, charges, compensation, losses or expenses incurred by Adventure Out Loud due to the Supplier not providing the Services in accordance with this Indemnity.
Indemnity
The Supplier shall indemnify and keep indemnified Adventure Out Loud in respect of all Losses arising directly or indirectly from or in connection with:
1. any failure by the Supplier or its sub-contractors to exercise reasonable skill and care in performing its obligations under this Indemnity and/or in providing the Services;
2. any lack of conformity of the Services provided to a Client in accordance with this Indemnity and/or applicable laws and regulations;
3. any representation or warranty given by the Supplier being inaccurate in any material respect; or
4. any other failure by the Supplier or its sub-contractors to comply with any of its obligations under this Indemnity and/or any wrongful act or omission of the Supplier or its sub-contractors.
Claims
1. If a Client makes any written or verbal claim or complaint to the Supplier or its sub-contractors, the Supplier shall promptly notify Adventure Out Loud of this together with full provision of details of the claim or complaint, for Adventure Out Loud’s records.
2. Adventure Out Loud will notify the Supplier of any claim or complaint received by Adventure Out Loud from a Client relating to any of the Supplier’s obligations under this Indemnity. The Supplier shall respond to Adventure Out Loud as soon as reasonably practicable and in any event no later than two (2) days after the date of any such notification. Adventure Out Loud may seek to satisfy complaints in any way it reasonably considers appropriate, however Adventure Out Loud shall take into account when considering complaints from a Client any response made by the Supplier to such a notification and the Supplier shall be liable to the Client in any event.
3. The Supplier shall, at its own expense, investigate the claim or complaint, including (but not be limited to) the provision of documents, photographs, records and statements for use in considering or defending such claims or complaints.
Insurance
The Supplier warrants and represents that it has, and undertakes that it shall maintain in force throughout the term of this Indemnity, and shall procure that its sub-contractors maintain, suitable insurance cover with a reputable insurer in respect of:
1. the provision of the Services under this Agreement, including to comply with its obligations under applicable laws and regulations and provide Services in accordance with the Terms;
2. third party risks, including without limitation the Supplier (or its sub-contractors) liabilities to Clients in respect of death, injury or illness of any of them.
Evidence of Adequate Cover
The Supplier shall provide evidence to Adventure Out Loud of the insurance policies referred to in Clause 2.8 above and receipts evidencing its payment of premiums in respect of those policies, at any time on reasonable request by Adventure Out Loud.
No insurance
If the Supplier does not have the required insurance policies detailed in this Indemnity, then the lack of such insurance policy does not and will not excuse the required performance of the Supplier in connection with its obligations under this Indemnity and/or the Terms. The Supplier shall remain liable in connection with the performance of the Services, regardless of whether the Supplier has sufficient insurance cover as per the terms and conditions of this Indemnity.
LAW AND JURISDICTION
This Indemnity shall be governed by and construed in accordance with the laws of Queensland, Australia (in relation to contractual and non-contractual matters) and the parties irrevocably submit to the exclusive jurisdiction of the courts of Queensland and courts entitled to hear appeals to settle any disputes which may arise in connection with this Indemnity.
The parties agree to the terms of this Indemnity, in respect of all Bookings for Services that Adventure Out Loud may make with the Supplier.