1.1. This agreement outlines the terms and conditions (the “Terms”) that apply between us Wilderness Now Limited (the “Company”, “we”, or “us”) and you (a “Service Provider” or “you”) and under which you agree to offer Services via the Company’s website (the “Platform”) to Customers. It is important that you read these Terms carefully.
1.3. Except as otherwise terminated in accordance with the provisions below, these Terms shall commence on the date you agree to them in accordance with this clause 1 and shall remain valid and binding for as long as you have a Profile.
1.4. These Terms may be superseded by any amended Terms or terminated at any time and at the Company’s sole discretion. Your continued Use of the Platform after such amended Terms have been brought to your attention (including, without limitation, by email to you) signifies your acceptance of such amended Terms (irrespective of whether you confirm your acceptance of such amended Terms to the Company in writing).
1.5. You should read these Terms carefully before agreeing to them and you should retain a copy of the Terms for your future reference.
1.6. It is your responsibility to assess whether the Platform is suitable or appropriate for your needs and any decision on your part to make Use of the Platform is made entirely at your own risk.
1.7. By making Use of the Platform, you confirm that you have the necessary experience and knowledge to understand and competently assess and manage the risks involved in offering Services via the Platform.
1.8. By making Use of the Platform you confirm that you have Insurance at the time of offering Services to Customers.
DEFINITIONS AND INTERPRETATION
1.1. The following definitions should be read carefully as they provide important explanation and guidance on interpretation of the language used in these Terms:
‘Adverse Event’ means an event that occurs during or as a later consequence of a Contract for Services and that has an adverse effect on the Customer, including, without limitation, an adverse effect on the Customer’s physical person and/or on the Customer’s actual and/or potential financial circumstances.
‘Adverse Financial Event’ means an event that results in you being unable to refund a Payment due and owing to a Customer pursuant to the terms of a Contract for Services existing between you, including, without limitation, your insolvency or bankruptcy.
‘Cancellation’ means any cancellation of a Contract for Services at any time prior to the conclusion of such Contract for Services, whether by you or by the Customer.
‘Cancellation Payment’ means a payment made by the Company to a Customer in respect of a Cancellation.
‘Commission’ means the percentage of the total value of the Contract for Services you agree that we may deduct in accordance with clause 10 (currently 15%).
‘Contract for Services’ means an agreement reached between you and any Customer in respect of your provision of Services following an Enquiry.
‘Customer’ means any person with whom you enter, or may enter, into a Contract for Services.
‘Enhanced Commission’ means commission charged following a Cancellation Payment and in accordance with clauses 18.2 to 18.5 below, up to a maximum value of 50% of the total value of future Contracts for Services.
‘Enquiry’ means any message submitted in respect of a Service via the Platform’s internal messaging system (e.g. clicking on the ‘book now’ button that appears in each Profile).
‘Insurance’ means insurance in respect of all risks related to any Service that is the subject of a Contract for Services, including without limitation all risks in relation to damage to a Customer’s person and/or property, and in relation to Adverse Financial Events, that remains valid and in effect for the entire duration of such Contract for Services.
‘Invoices’ means any invoices generated via the Platform’s internal messaging system in respect of a Contract for Services.
‘Payment’ means any payment made to you for your Services pursuant to a Contract for Services.
‘Payment Agent’ means the independent service provider used by the Company in respect of processing Payments (currently Stripe).
‘Professionally Qualified’ means that you have valid and up-to-date professional qualifications that entitle you to offer Services to Customers pursuant to all relevant law, regulations and good professional practice in the field of the Service you are offering via your Profile.
‘Profile’ means the individual page describing a Service you are offering via the Platform.
‘Services’ means any services you are offering in respect of which a Customer may enter into a Contract for Services.
1.2. In these Terms, the following rules of interpretation shall apply:
1.2.1. clause and paragraph headings shall not affect the interpretation of these Terms;
1.2.2. a reference to a person shall include a reference to an individual, firm, company, corporation, partnership, unincorporated body of persons, government, state or agency of a state or any association, trust, joint venture or consortium (whether or not having separate legal personality) and that person’s personal representatives, successors, permitted assigns and permitted transferees;
1.2.3. unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; and
1.2.4. unless the context otherwise requires, a reference to one gender shall include a reference to the other.
BASIS OF AGREEMENT
2.1. These Terms constitute the terms on which you agree to make Use of the Platform.
2.2. Please note that this agreement is distinct from, and entirely independent of, any Contract for Services that you may enter into with a Customer. Services are in all cases provided to Customers pursuant to a Contract for Services. You confirm and acknowledge that these Terms are not applicable to any Contract for Services that you may enter into with a Customer. Contracts for Services are governed by your own terms and conditions as an independent Service Provider. You confirm and acknowledge that the Company is a third party to any Contract for Services and that you enter into Contract for Services as an independent third party to the Company and not, without limitation, as the Company’s employee or agent.
2.3. In the event of any conflict between these Terms and your terms and conditions in respect of a Contract for Services, your terms and conditions shall prevail.
2.4. In the event of any conflict between these Terms and your terms and conditions in respect of your Use of the Platform, these Terms shall prevail.
2.5. The Terms constitute the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in these Terms.
2.6. These Terms apply to any services we provide to you, to the exclusion of any other terms that may be imposed or incorporated, or which are implied by trade, custom, practice or course of dealing, save where any such terms are agreed by us in writing.
3.1. The aim of our service is to provide space for you to display information about your Services to Customers, to generate Enquiries and Invoices in respect of your Services, to facilitate Customers making payment for your Services and to enable you to enter into Contracts for Services.
3.2. We will alert you via the Platform when there is an Enquiry and whenever payment has been made in respect of a Contract for Services. We may, at our discretion, alert you other than via the Platform (e.g. by telephoning you).
3.3. We do not sell or resell any of the Services displayed. You deal directly with the Customer and on your own account. As such we do not act as an agent, or act as go between in any issues relating to a Customer's experience regarding the Services you offer via the Platform. Any dealings between you and the Customer are at entirely at your own risk.
YOUR OFFER OF SERVICES
4.1. By offering Services via the Platform you agree:
4.1.1. to respond to Enquiries within 24 hours of the Customer having sent you such Enquiry;
4.1.2. to provide the terms and conditions applicable to any Contract for Services you may enter into with a Customer to such Customer. It is your sole responsibility to do this. It is not the responsibility of the Company to provide the Customer with such terms and conditions, although we may choose to do so at our sole discretion.
4.1.3. to keep the prices of the Services, your availability to provide Services and information regarding the Services accurate and regularly updated, and that it is your sole responsibility to do so. You may update this information by email to firstname.lastname@example.org;
4.1.4. not to add any email address, phone number or website links into the replies you send to any Customer via the Platform. You agree to promptly declare on request the outcome of all Enquiries where you do send a Customer an email address, phone number or website link via the Platform;
4.1.5. that if you agree a Contract for Services with a Customer to whom you are introduced via the Platform, you agree to pay Commission on the total value of that Contract for Services and that such Commission may be deducted by the Company directly from Payments prior to remitting those Payments to you. You agree that your obligation to pay Commission includes cases where you are introduced to a Customer via the Platform but finalise your Contract for Services other than via the Platform (e.g. via personal email accounts);
4.1.6. that failure to offer your Services in accordance with these Terms (including without limitation failing to declare the outcome of Enquiries and/or falsely declaring the outcome of Enquiries) may in our sole discretion lead to us taking steps to remove you from the Platform, including but not limited to deleting your Profile;
4.1.7. to be bound and strictly abide by the terms and conditions applicable to Contracts for Services (e.g. your standard terms and conditions), including but not limited to in relation to Cancellations;
4.1.8. that the Company may, in its sole discretion, address customer complaints in whatever manner it may from time to time deem appropriate, including in relation to Cancellations. In the event of a Cancellation Payment being made by us to the Customer in any of the circumstances described at clause 18 below, you agree that the Company is entitled to charge Enhanced Commission in respect of future Contract for Services, in accordance with clause 18 below.
4.1.9. that information displayed in your Profile is treated as information provided by you, in accordance with clause 6.1.10 below, the accuracy of which the Company is not in any way liable for;
4.1.10. that you have appropriate systems and/or Insurance in place to ensure that Payments in respect of Services which have not been performed pursuant to a Contract for Services can be refunded, notwithstanding the occurrence of an Adverse Financial Event;
4.1.11. that The Package Travel, Package Holidays and Package Tours Regulations 1992 (the “Regulations”) do not apply to any of the Services you may at any time offer via the Platform, which are not “packages”, as defined in the Regulations. You further confirm and acknowledge that you are not a “retailer”, as defined in the Regulations. By using the Platform you are confirming that you accept that the Regulations do not apply to the Services you offer via the Platform; and
4.1.12. that you will not enter into Contracts for Services with persons under 18 years of age. You further agree that you will not in any circumstances provide Services to persons under 18 years of age unless you hold a valid license issued by the Adventure Activities Licensing Authority.
4.2. We reserve the right to approve, amend or decline your offer of Services via the Platform at our sole discretion and without explanation. We also reserve the right to unilaterally change the layout of your Profile as we deem appropriate.
4.3. If we unilaterally amend the information on your Profile in a manner which, in our discretion, relates to the nature of the Services offered on the Profile we will inform you of the same. Your continued Use of the Platform after your amended Profile has been brought to your attention (including, without limitation, by email to you) signifies your acceptance of such amendments to your Profile and that your amended Profile continues to conform with clauses 5.1.9 and 6.1.10 of these Terms.
SERVICE PROVIDER REPRESENTATIONS AND WARRANTIES
5.1. Representations and warranties are statements and promises made by you to the Company upon which we rely as being accurate in our dealings with you. You make the following representations and warranties to us at the time of entering into these Terms and every time you use the Platform:
5.1.1. you are over the age of 18 years;
5.1.2. you are of sound mind and have the capacity to agree to these Terms;
5.1.3. all personal information that you provide about yourself is accurate and true;
5.1.4. you are Professionally Qualified and will remain Professionally Qualified for the entirety of the period of your Use of the Platform;
5.1.5. you have Insurance;
5.1.6. you hold a bank account in the UK or the Republic of Ireland in your own name;
5.1.7. you have carefully considered the risks involved with any Services you are offering to Customers via the Platform and you have the necessary experience and knowledge to understand and competently assess and manage these risks;
5.1.8. you will competently assess and manage the risks involved with your Services on every occasion you provide Services to a Customer to whom you are introduced via the Platform;
5.1.9. you will not offer Services to Customers via the Platform other than in strict accordance with these Terms (albeit that the provision of Services pursuant to a Contract for Services will be exclusively subject to your own terms and conditions);
5.1.10. that you have reviewed, understood and confirmed that all information displayed on your Profile is entirely accurate and not potentially misleading to Customers. For the avoidance of doubt, this representation applies to information provided by you and information that may have been drafted by a third party on your behalf;
5.1.11. you are not breaching any laws or regulations that are applicable to you or any company upon whose instructions you are acting; and
5.1.12. information is accepted on the understanding that any descriptions of Services are accurate and comply with English law. You warrant that you own or control all rights or have obtained copyright, moral rights and similar permissions, consents, waivers as are required for the display of logos and trademarks in copy provided to us.
6.1. You acknowledge and confirm that you have carefully considered the risks involved in providing Services via the Platform and that your participation in respect of any Services you offer is entirely at your own risk. You acknowledge and confirm that you are providing Services as an independent Service Provider and that you are not providing Services as an employee or agent of the Company.
6.2. You acknowledge and confirm that the Company is not liable in any respect for any liabilities that may affect you or any third party as a direct or indirect consequence of your provision of Services offered to Customers via the Platform.
6.3. You acknowledge and confirm that you have made your own independent decision to offer Services via the Platform and that your decision has been made without reliance on the Company.
PLATFORM ACCESS AND USE
7.2. You understand that we may store your IP address information and may monitor your use of the Platform.
7.3. Access to the Platform may be restricted at the discretion of the Company, particularly during periods of maintenance and updating.
7.4. You are responsible for any telecommunication costs, broadband fees or data charges that you may incur through your access to the Platform.
YOUR PROVISION OF SERVICES
8.1. You acknowledge and confirm that when you provide Services via the Platform pursuant to a Contract for Services you are providing Services in your capacity as an independent Professionally Qualified Service Provider.
8.2. You acknowledge and confirm that when you provide Services via the Platform pursuant to a Contract for Services you are not providing Services as an employee and/or as an agent of the Company.
8.3. You acknowledge and confirm that when you provide Services via the Platform pursuant to a Contract for Services that such Contract for Services is exclusively governed by your own terms and conditions, which we have not sought to influence.
8.4. You acknowledge and confirm that the Company is a third party to any Contract for Services.
PAYMENT AND COMMISSION
9.1. Offering Services via the Platform is free of charge.
9.2. We charge Commission on all Payments. Commission is charged by us on the total price agreed in the Contract for Services between you and the Customer. You acknowledge and confirm that the Company is entitled to charge Commission in this way.
9.3. Currently, the rate of Commission is 15% However, the rate of Commission may be changed by the Company at any time and at its sole discretion. We will notify you of any change in the rate of Commission in advance of making such change.
9.4. Payments are processed by our Payment Agent, subject to its terms and conditions. Please note that our Payment Agent’s terms and conditions currently provide that Payments are remitted to us on a once weekly basis (i.e. there may be a delay of up to approximately 7 to 10 working days between a Customer making Payment and the remittance of that Payment (less Commission) to you.
9.5. You acknowledge and confirm that the Company may deduct Commission from Payments before remitting them to you. Payments are remitted to a holding account controlled by the Company before we deduct Commission and remit the Payment (less Commission) to your nominated bank account.
9.6. You acknowledge and confirm that Payments should always be made via the Platform and not via any other means (e.g. from the Customer to you directly). In the event that Payment is made other than via the Platform, you acknowledge and confirm that this does not affect our entitlement to charge you Commission and your obligation to pay it to us.
10.1. These Terms may be terminated by you by providing notice of termination in writing via email to the Company at email@example.com and firstname.lastname@example.org. The Company will then remove your Profile within 10 working days and notify you of this removal in writing, at which point the operation of these Terms will be considered terminated between us.
10.2. The Terms may be terminated by the Company providing notice in writing to you at your last known email or postal address at any time and at the sole discretion of the Company.
11.1. You agree that we may pass your personal information to any recognised third party company or authority solely for the purposes of verifying your identity, performing due diligence checks, fraud prevention and legal and/or regulatory compliance.
11.2. We do not have to accept you as a Service Provider with a Profile on the Platform, until we have satisfied ourselves, at our absolute discretion, that we have sufficient and appropriate information to accept your application (including, without limitation, information as to whether you are Professionally Qualified). We do not have to give you any reason for rejecting or delaying an application from you to have a Profile on the Platform.
12.1. It is your responsibility to ensure that any tax liabilities which you may incur as a consequence of your use of the Platform are paid to the relevant taxation authority. The Company has no liability in relation to any tax liabilities incurred by you. We will not withhold any tax on your behalf except where required by law.
INTELLECTUAL PROPERTY RIGHTS
14.1. You acknowledge that the Platform and all intellectual property rights arising out of or in connection with it are the exclusive property of the Company. All our intellectual property rights in the Platform are fully reserved.
14.2. You must not use any part of the content on the Platform for commercial purposes without obtaining a licence to do so from us or, where relevant, from the relevant Service Provider.
15.1. You agree to indemnify and hold harmless the Company, any third party, any employee or director of a member of the Company and all our other agents or sub-contractors, against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest penalties and legal and other reasonable professional costs and expenses) suffered or incurred as a result of:
15.1.1. your fraudulent or illegal use of the Platform;
15.1.2. your negligence in providing Services pursuant to a Contract for Services;
15.1.3. any default by you of any of these Terms;
15.1.4. any inaccurate or incomplete information that you have knowingly provided to us;
15.1.5. your allowing any other person to access your account either with your permission or as a result of your failure to keep your username and password private; or
15.1.6. any claim made against you for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with your Use of the Platform.
15.2. You agree that the Company has no obligation to reimburse or indemnify you for any cost, loss or liability which you may incur as a result of the failure of any Customer to perform its obligations under any Contract for Services (to which, for the avoidance of doubt, the Company is a third party). For the avoidance of doubt, this includes failure on the part of the Customer to make Payments that may be due and owing to you.
LIMITATION OF LIABILITY
16.1. We do not warrant the nature and/or the quality of the provision of any of the Services. You offer such Services to the Customer directly and as a third party to the Company. By accepting these Terms, you accept that we are not liable for damage to person or property attributable or potentially attributable to the provision of any of the Services, including but not limited to liability for your negligent provision of Services.
16.2. We do not warrant the accuracy of any of the information contained in the Profiles. Information contained in the Profiles is provided by you to the Customer directly. By accepting these Terms, you accept that we are not liable for damage to person or property attributable or potentially attributable to the information contained in your Profile. You further accept that we are not liable for any pure economic loss attributable or potentially attributable to Customer reliance on the information contained in your Profile.
16.3. We do not warrant the accuracy of any information provided you in relation to the Services (e.g. by way of a response to an Enquiry, or otherwise). By accepting these Terms, you accept that we are not liable for loss or damage to person or property attributable or potentially attributable to such information. You further accept that we are not liable for any pure economic loss attributable or potentially attributable to Customer reliance on the information provided by you in relation to the Services.
16.4. We do not guarantee that you will be able to enter into any Contracts for Services as a consequence of your Use of the Platform.
16.5. Nothing in these Terms excludes or limits our liability for death or personal injury arising from our negligence, or our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by English law.
16.6. To the extent permitted by law, we exclude all conditions, warranties, representations or other terms which may apply to our Platform or any content on it, whether express or implied.
16.7. Without limitation and subject to the foregoing, neither the Company, nor any member of the Company, nor any directors, officers, employees, advisors or agents of the Company accepts any liability whatsoever for any losses arising from the following circumstances:
16.7.1. an Adverse Event;
16.7.2. any Platform downtime or system outage;
16.7.3. computer viruses, malware or errors received by you through the Platform;
16.7.4. any tax payable by you;
16.7.5. use of the Platform by a third party using your username and password as a result of your failure to keep such information confidential;
16.7.6. any due diligence or related checks carried out by us about you; and
16.7.7. your failure to enter into any Contract for Services.
17.1. Contracts for Services are governed by your own terms and conditions as an independent Service Provider, including in relation to Cancellations.
17.2. Without prejudice to the above, in the event that you make a Cancellation, we expect a full refund of any Payment to be made to the Customer, inclusive of the sum we deduct from the Payment in respect of Commission. In the event of a Customer complaint following your Cancellation and failure to refund the full value of any Payment made by the Customer, it is likely that we would exercise our discretion to make a Cancellation Payment to the Customer and then charge you Enhanced Commission on all future Contracts for Services that you may enter into until the Company is refunded the full value of such Cancellation Payment made to the Customer.
17.3. Refunds paid to Customers in the event that a Customer makes a Cancellation are exclusively subject to your terms and conditions in respect of Customer Cancellations. In the event of a Customer complaint following a Cancellation by a Customer and your failure to refund any Payment that appears to us, in our sole discretion, to be owing to the Customer pursuant to your applicable terms and conditions, it is likely that we would exercise our discretion to make a Cancellation Payment to that Customer and then charge you Enhanced Commission on all future Contracts for Services that you may enter into until the Company is refunded the full value of the Cancellation Payment made to the Customer.
17.4. You agree that in the event that the Company makes a Cancellation Payment we are entitled to charge Enhanced Commission on all future Contracts for Services that you may enter into until the Company is refunded the full value of the Cancellation Payment (such refund being calculated exclusive of Commission, i.e. on the basis of the aggregate value of the difference between Commission, which is charged on Payments in all circumstances, and Enhanced Commission, which is only charged in the event of a Cancellation Payment and only for such period as is required to refund the Company the full value of any Cancellation Payment made).
17.5. You agree that the Company has sole discretion in respect of its decision to make Cancellation Payments and charge Enhanced Commission, which in all cases it may do without reference or notice to you.
RIGHT OF SET OFF
18.1. We have the right to immediately and without notice set off any liability or debt that is owed by you to the Company or any member of the Company.
19.1. These Terms and any dispute arising out of or in connection with their subject matter shall be governed by and construed in accordance with the laws of England and Wales and the parties agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising in connection with these Terms.
19.2. The Company shall be permitted to make amendments to these Terms from time to time. You will be deemed to have accepted such amended Terms (including amendments to clause 10) by your continued Use of the Platform after such amendments have been brought to your attention (e.g. by emailing you).
19.3. You agree that the Company may assign its interest under these Terms to any third party without notice.
19.4. The Company’s rights and obligations under these Terms are personal to you which means that you cannot assign them to another party without the explicit prior written consent of an officer of the Company.
19.5. The Company may record all telephone calls and other communications for the purposes of security and training.
19.6. You understand that the Company will endeavour to be open on all business days. However, its offices and telephone lines will be closed on weekends and over UK public holidays. You further acknowledge that the Company will make reasonable efforts to ensure that the Platform is available continuously; however that there may be instances where access to the Platform is restricted as a result of scheduled maintenance, technology failure or network failure.
19.7. If any section or element of these Terms is found to be unenforceable, in contradiction of any law, or illegal, such findings shall not affect the validity of the remainder of these Terms.
19.8. The Company shall send all electronic communications to you by way of e-mail and/or message via the Platform. You agree that any such notifications shall be deemed an acceptable form of written notification to you.
19.9. If the Company does not strictly apply its rights under these Terms at a specific time, it does not restrict the Company from applying them at any time in the future.
19.10.The Company shall be under no obligation to provide a Service Provider with any information that is reported to any law enforcement agency.
19.11. You may link to any page on our Platform, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. We reserve the right to withdraw linking permission without notice. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. Our Platform must not be framed on any other site. The website in which you are linking must comply in all respects with the law, be established for lawful purpose or effect, and not contain any material which is defamatory of any person, obscene, hateful, sexually explicit, violent, discriminatory, illegal, fraudulent, misrepresentative or otherwise offensive (as determined by us at our sole discretion).
20.1. In the event that you have a complaint, the Company will make every effort to rectify the problem as soon as practicably possible.
20.2. Please write to us making clear the details surrounding your complaint. You can send your complaint by e-mail to email@example.com.
20.3. We will endeavour to provide a response to your complaint within ten business days of receiving it.