INDEPENDENT TRAVEL AGENT AGREEMENT
This Independent Travel Agent Agreement (“Agreement”) is made as of 10/31/2023 (“Effective Date”)
BETWEEN: Cornerstone Travel (“Agency”)
AND: Independent Travel Agent (ITA)
(each a “Party” and, together, the “Parties”).
The Parties agree as described below.
DEFINITIONS
“Booking” means the reservation of Travel Services by ITA for any Traveler.
“Commission” means the amounts paid by Suppliers to Agency in exchange for Bookings.
“Compensation” means the share of Commissions paid by Agency to ITA in exchange for Bookings.
“Credentials” means Agency’s IATA (International Air Transport Association) number, ARC (Airlines Reporting Corporation) number, CLIA (Cruise Lines International Association) number, seller of travel licenses, and any other travel industry qualification, certification, or registration held by Agency.
“Marks” means Agency’s copyrights, trademarks, trade names, brands, and logos, whether or not applied for, registered, or granted, as existing from time to time.
“Supplier” means a provider of Travel Services to Travelers.
“Travel Services” means travel products and services provided by Suppliers to Travelers, including air, land, or water transportation, lodging, auto rentals, tours, excursions, entertainment, food and drink services, and similar products and services.
“Traveler” means a user of Travel Services.
“Trip” means the composite of all Travel Services booked by ITA for a Traveler.
SCOPE AND PURPOSE
This Agreement, which includes Appendix A, describes the terms regarding Agency’s engagement of ITA to make Bookings under Agency’s Credentials in exchange for Compensation.
INDEPENDENT CONTRACTORS
This Agreement does not create a relationship of agency, partnership, joint venture, or employment between the Parties.
Each Party is an independent contractor and: (1) holds itself out to third parties as a business with the same or substantially similar operations as reflected in this Agreement; (2) operates a business separate from and economically independent of the other Party; (3) manages its own business operations, including fees, scheduling, timing, marketing, advertising, hiring and firing staff, and profits and losses; (4) is responsible for its own costs to perform obligations under this Agreement, including costs for its own workspace, equipment, and other necessary materials; (5) makes separate and independent investments to support and expand its business; (6) performs obligations under this Agreement using its own specialized skills; and (7) has exercised its right to negotiate the term, termination, and other provisions of this Agreement.
Neither Party: (1) will participate in benefits, insurance, workers’ compensation, retirement, vacation, or any similar plan the other Party makes available to its employees; (2) is subject to the other Party’s control or supervision regarding the manner, means, places, and times of performance under this Agreement; (3) provides services that are integral, critical, necessary, or central to the principal business of the other Party; or (4) has the authority to bind the other or to incur any obligation on the other Party’s behalf.
Agency may in its discretion at any time: (1) lease to ITA office space and the use of office equipment to facilitate this Agreement, which will not impact the independent contractor relationship described above; (2) engage with any travel industry host or consortium, or enter into any other affiliation, subject to giving ITA written notice; and (3) conduct a background review of ITA.
ITA may choose to maintain its own comprehensive general liability and professional liability (errors and omissions) insurance coverage in amounts sufficient to cover the scope of its business, such amounts to be reviewed and approved by Agency in writing from time to time.
RIGHTS TO USE
Agency is the exclusive owner of Credentials and Mark. ITA will not assert any challenge to such ownership.
Agency grants to ITA a limited, non-exclusive, non-assignable, non-transferable right to use Credentials for the purpose of providing Bookings under in this Agreement. ITA will not use Credentials for any other purpose without Agency’s prior written consent.
Agency grants to ITA a limited, non-exclusive, non-assignable, non-transferable right to use Marks on ITA’s business cards, website, letterhead, marketing collateral, signage, and similar business purposes. ITA will not use Marks for any other purpose without Agency’s prior written consent.
Each ITA use of Credentials or Marks will prominently and conspicuously display the words “Independent Travel Agent” adjacent to ITA’s name to avoid any impression that ITA is the Agency, a subsidiary of Agency, or an employee of Agency.
In exchange for rights to use described in this section, ITA will pay Agency affiliation fees, as described in Appendix A. All such fees are non-refundable.
This section will survive termination of this Agreement.
BOOKINGS
ITA will make Bookings: (1) on a non-exclusive basis; (2) in a timely and diligent manner; (3) free of any fiduciary, professional, or personal conflict of interest; (4) without violation of any legal obligation it has to any third party; and (5) in compliance with Agency policies and all laws and regulations, including seller-of-travel laws, consumer protection laws, registration, licensing, advertising, and any other requirements applicable to travel agents.
ITA will not permit any ITA employee, sub-agent, or any third-party reseller to provide Travel Services without Agency’s prior written consent, which Agency may grant or withhold in its discretion. ITA will ensure each such party has agreed in writing to comply with all terms described in this Agreement.
ITA will not, without Agency’s prior written consent: (1) make any Booking at net rates using Credentials; or (2) make any group travel arrangements using Credentials.
The following ITA activities will be processed directly through Agency: (1) all charges relating to Trip planning, change, and cancellation in any state having seller-of-travel laws or regulations; and (2) all Bookings with any destination management company, tour operator, or other Supplier that: (a) Agency has introduced to ITA; and (b) does not require travel agency credentials.
ITA will deliver to Agency all Trip Information promptly following each Booking.
ITA will deliver to Travelers written documentation of all information directly relevant to any Trip (“Trip Information”) promptly following receipt of a Booking confirmation from any Supplier, including: (1) Traveler names, addresses, phone numbers, email addresses, and street addresses; (2) Trip Information and dates; (3) insurance information, including any relevant waivers; and (4) travel costs, including itemized amounts due, payments made, deposits received, balances due, and payment due dates (collectively, “Trip Cost Information”).
Promptly following any payment made by a Traveler, ITA will deliver to the Traveler an updated invoice reflecting all Trip Cost Information. ITA is responsible for ensuring each Traveler receives and acts regarding travel documentation.
Agency will forward to ITA all documents it receives relating to Travelers. ITA is responsible for ensuring Travelers receive and act regarding these documents. In time-sensitive situations, Agency may forward such documents directly to Travelers at contact information on record, subject to providing notice to ITA. ITA will be responsible for costs of forwarding travel documents incurred by Agency, which Agency will deduct from Compensation.
COLLECTION AND PAYMENT
ITA will process Traveler payments for Bookings using Traveler’s credit card as follows, unless directed by Agency in writing: (1) if Agency operates on a gross fee structure, ITA will make payments to relevant Suppliers in accordance with the written directions of each Supplier; and (2) if Agency operates on a net fee structure, ITA will, subject to Agency’s prior written consent and processing fees, make payments to Agency’s merchant account, accompanied by a written request for Agency to pay the relevant Supplier.
ITA may charge Travelers service fees for ITA’s time and expertise involved in making Bookings, subject to applicable seller-of-travel and other laws and regulations. Other than these service fees, ITA will not accept any payment directly from Travelers for any Bookings either on a gross or net basis. ITA will ensure all Traveler payments in any form are payable directly to Suppliers or Agency.
ITA will obtain credit card authorizations from Travelers and will comply with Payment Card Industry (PCI) data security standards.
COMPENSATION
Commissions are the exclusive property of Agency until it qualifies and determines the amount of Compensation payable under this Agreement. Compensation is payable after: (1) Traveler has completed the Trip; and (2) Agency collects commissions from Suppliers relating to Bookings.
Agency will: (1) pay Compensation to ITA in arrears 80-90% of gross commission; and (2) provide to ITA an accounting of Compensation payable as of the close of the previous 80-90% in a form and format determined by Agency.
Compensation is limited to amounts expressly provided in this Agreement. Agency will make no advance payment against prospective Compensation. Agency neither imposes nor implies any minimum or volume regarding Bookings or Compensation under this Agreement.
If ITA fails to complete the full process of any Booking, onboarding process, or if the ITA is not currently up to date with the monthly hosting fee, ITA will earn no Compensation, and Agency will retain all Commissions, for that Booking, as reasonably determined by Agency in its discretion on a case-by-case basis.
ITA is responsible and liable for all legal and financial obligations relating to any dispute or shortfall relating to any Booking. ITA will pay Agency within 5 days of written notice or Agency will deduct from Compensation the amount of any such amount not authorized by Agency, including any: (1) debit memo; (2) chargeback; (3) refund or post-sale adjustment; (3) price concession or discount; (4) non-refundable ticket issued but not used; (5) “no show”; (6) ITA error; (7) Commission recall; and (8) unauthorized charge or fraud.
If Agency incurs any cost as a direct result of ITA’s error or negligence, Agency will have the right to withhold Compensation to recover Agency’s cost. If no Compensation is payable, ITA will pay Agency the amount of such cost within 5 days of written notice itemizing the cost. If ITA incurs any cost as a direct result of Agency’s error or negligence, Agency will pay ITA the amount of such cost within 5 days of written notice itemizing the cost.
Agency will have a right to invoice ITA for, and ITA will have an obligation to pay Agency, all amounts payable but not reimbursed as described in this Agreement during the term of this Agreement and for one year following its termination.
Upon termination of this Agreement, if ITA owes any amounts to Agency, Agency in its discretion will either: (1) withhold or offset such amounts against Compensation payable to ITA; or (2) charge such amounts to the credit card account provided by ITA.
If ITA fails to comply with Agency’s processes as described in this Agreement, resulting in any cost to Agency, Agency reserves the right to assess late fees on such costs at 1.5% per month.
ITA waives any claim for Compensation not made within 7 days following termination of this Agreement.
This section will survive termination of this Agreement.
TAXES
Agency will not pay taxes or other contributions relating to Compensation.
ITA is responsible for all local, state, and federal fees, taxes, and tax filings relating to its own income and business operations, including fees, taxes, contributions relating to payroll, social security, unemployment, disability, workers’ compensation, or any other local, state, or federal programs.
ITA indemnifies Agency now and in future from all liability, claims, penalties, and interest imposed by any governmental body in connection with Compensation or this Agreement.
This section will survive termination of this Agreement.
TERM AND TERMINATION
This Agreement becomes effective upon the purchase of hosting fee, as of the Effective Date, for an initial term of 1 month. Following the initial term, this Agreement will be renewed automatically for successive terms, each of 1 month, unless terminated as described below.
Either Party may terminate this Agreement for: (1) convenience by providing the other Party at least 10 days of prior written notice; and (2) cause if the other Party commits a material breach of this Agreement and does not remedy such breach within 3 days of written notice.
Upon termination of this Agreement, each Party’s rights and obligations will cease immediately, but termination will not affect: (1) either Party’s rights and obligations accrued but unsatisfied through the termination date; and (2) any part of this Agreement expressed, or by its context should reasonably be expected, to survive termination.
Upon termination of this Agreement: (1) Agency will retain any end-user client it has sourced, including all such clients Agency may have referred to ITA during the term of this Agreement; (2) ITA will retain any end-user client it has sourced; and (3) the Parties will cooperate to transfer each such client expeditiously in accordance with this section.
Upon termination of this Agreement, or at any time upon Agency’s written request, ITA will: (1) immediately cease the use of Agency’s intellectual property; (2) promptly deliver to Agency all materials, equipment, and other property provided by Agency for use by ITA; (3) permanently destroy and delete all Confidential Information in its possession and computer systems; and (4) provide to Agency written certification of compliance with this section.
This section will survive termination of this Agreement.
CONFIDENTIALITY
The Parties may exchange confidential information regarding their business, employees, agents, clients, and partners (collectively, “Confidential Information”).
Each Party will retain ownership of its Confidential Information, none of which will be transferred or licensed to the other Party.
Each Party will: (1) use Confidential Information only in connection with performance of this Agreement; (2) not disclose Confidential Information to any third party without the other Party’s prior written consent; and (3) protect Confidential Information with the same level of care used to protect its own most confidential information, but not less than a reasonable level of care.
Confidential Information includes: (1) the terms of this Agreement; (2) any oral or visual information relating to Confidential Information; and (3) Confidential Information disclosed prior to the Effective Date.
Confidential Information does not include information: (1) known to both Parties prior to engagement under this Agreement; (2) developed independently by either Party without breach of a nondisclosure obligation; (3) received from a third party without breach of a nondisclosure obligation; or (4) that becomes public knowledge without breach of a nondisclosure obligation.
A Party may disclose Confidential Information by order of court or authority having jurisdiction if that Party: (1) discloses only Confidential Information required by the order; and (2) gives the other Party prompt written notice of each such disclosure to allow pursuit of protective orders.
Neither Party: (1) makes any representation or warranty regarding its Confidential Information; (2) will have any liability for any error or omission in, or any loss or damage regarding, its Confidential Information.
Upon either Party’s written request at any time, the other Party will promptly return, or provide written certification it has destroyed, all versions of the disclosing Party’s Confidential Information.
This section will survive termination of this Agreement for two years following either Party’s last disclosure of Confidential Information. However, confidentiality obligations regarding any trade secret will remain in effect as long as it constitutes a trade secret under the law.
NONSOLICITATION
During the term of this Agreement, and for one year following its termination, neither Party will, without the other Party’s prior written consent, directly or indirectly: (1) take away or solicit for the purpose of taking away any employee or contractor of the other Party; or (2) induce any customer, prospect, or Supplier to reduce or discontinue engagement with the other Party. Public job postings and requests for proposals will not be a breach of this section. This section will survive termination of this Agreement.
LIABILITY AND INDEMNIFICATION
Neither Party will be liable to the other Party for any indirect, incidental, consequential, special, exemplary, or punitive damages.
ITA will have exclusive responsibility and liability, and Agency will have no responsibility or liability, for any costs, losses, or damages arising from Bookings and related payments, including errors, timeliness, and misrepresentations.
ITA indemnifies and holds Agency and its owners, directors, employees, contractors, agents, representatives, advisors, successors, and assigns harmless from any third-party claim, based on tort, contract, statute, or otherwise, arising from any act or omission of ITA, its owners, directors, employees, contractors, or agents.
Each Party’s obligations and liabilities are as stated in this Agreement. All other representations or warranties—express or implied, by statute, law, or otherwise—are excluded.
This section will survive termination of this Agreement.
GENERAL
Amendments. This Agreement may be amended only by a written instrument signed by each Party.
Assignment. Neither Party will assign any right or obligation under this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld or delayed.
Waiver. No forbearance or delay in enforcing this Agreement will prejudice or restrict the rights of a Party. No waiver of a right will operate as a waiver of any subsequent right. No right is exclusive of any other right, and each right is cumulative.
Severability. If any part of this Agreement is found unenforceable, that part will be enforced to the fullest extent permitted by law and the rest of this Agreement will remain fully in force.
Force Majeure. No failure or delay in the performance of any obligation under this Agreement will be a breach if that failure or delay arises from a force majeure or any cause beyond the reasonable and foreseeable control of either Party.
Discretion. While each Party acknowledges its duty of good faith and fair dealing, a Party’s discretion means it may consider its own interests without considering the effect of its decision on the other Party.
Interpretation. The Parties intend that: (1) headings will not be used to interpret this Agreement; (2) the word “including” is without limitation; (3) no text will be construed against either Party as author; and (4) all text is conspicuous.
Publicity. Neither Party will use or display in public the other Party’s name, logo, content, or other intellectual property without the other Party’s prior written consent.
Acceptance. The Parties may confirm their acceptance of this Agreement in writing, digitally, or electronically, including by clickwrap, sign-in-wrap, or other active or passive electronic confirmation. Any counterparts created will constitute a single original document.
Notices. Notices will be in writing and deemed given when sent with receipt confirmation by email, prepaid registered or certified mail, or prepaid courier service to the receiving Party’s address in this Agreement or other address provided in writing for purposes of notice.
Governing Law. This Agreement is governed exclusively by the laws of Texas, without regard to the conflict-of-law principles of any jurisdiction.
Courts. All claims arising from this Agreement will be resolved exclusively by the state or federal courts located in Galveston County, Texas, which neither Party will challenge based on forum non conveniens or similar doctrine.
Equitable Relief: Either Party may seek injunctive or other equitable relief to remedy any actual or threatened breach of this Agreement.
Further Assurances. Each Party will perform additional acts as necessary to effect this Agreement. The Parties will address together in good faith any unforeseen issues that arise from this Agreement with a view to mitigating any material adverse impact on either Party.
Entire Agreement. This Agreement is the entire agreement and supersedes all prior agreements between the Parties regarding its subject matter, whether written or oral, express or implied. If any conflict arises between the body of this Agreement and an appendix, the former will control.
The authorized purchase of hosting fee accepts this Agreement as of the Effective Date.