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Retreat Platform Service Agreement, Release And Indemnity Agreement

PLEASE READ THIS DOCUMENT CAREFULLY AS IT INCLUDES IMPORTANT LIMITATIONS OF LIABILITY AND WAIVERS OF LEGAL RIGHT
This Service Agreement, Release, and Indemnity Agreement (the "Agreement”) is made effective as of Tue, May 28, 2024 ("Effective Date”) by and between You (the "Client”) and Retreat Technologies, Inc. ("Service Provider”). Client and Service Provider may also be individually referred to herein as a "Party,” and collectively as the "Parties.”
WHEREAS the Service Provider agrees to provide the services set forth herein for Client and Client desires the services from the Service Provider.
1. Description of Services. The Service Provider will provide to Client the following services (collectively the "Services”):
1.1. Assist in planning accommodations, restaurants, and transportation in connection with the event identified in Exhibit A hereto (the "Event”).
1.2. Recommend flight itineraries to the Event for individuals identified by Client.
1.3. Assist in planning activities in connection with the Event.
2. Feedback Provided by Client. For the services provided under this Agreement, Client agrees to provide feedback and information to Service Provider regarding Service Provider’s services, the services of Suppliers (as defined in Section 4 below) and other aspects of the Event in a form and manner agreed to by the Parties.
3. Retroactivity. Service Provider and Client agree that the provisions of this Agreement shall be effective as of the Effective Date indicated above. If the Effective Date is before the date of signing, Service Provider and Client agree that this Agreement shall be effective retroactively to the Effective Date, as if fully executed on the Effective Date.
4. Service Provider Not a Supplier/No Representations by Service Provider: Service Provider does not provide for any travel. Service Provider does not provide for hotel or other accommodations. Service Provider is not a restauranteur, nor an activity provider. Service Provider provides no services other than those identified in Section 1 hereof.
Service Provider makes no representations or warranties regarding the safety, quality, or suitability of any Supplier of travel, Supplier of hotel or other accommodations, Supplier of restaurant services, or Supplier of activity services or other services (all of these Suppliers being collectively referred to herein as "Suppliers”).
Each Supplier is an independent entity with its own management and is not subject to the control of Service Provider. Client agrees that Service Provider is not responsible for and agrees that Service Provider shall have no liability to Client for, any Supplier’s failure to adhere to Supplier’s own schedules, provide services or refunds, Supplier’s financial default, or Supplier’s failure to honor future trip credits or credits of any other kind. Client is advised that the Suppliers whose names appear in documentation are those actually responsible for providing the services purchased, and consents to the use of those Suppliers, and understands and agrees each Supplier’s terms and conditions govern the transaction between Client, any individual connected with Client, and Suppliers. The transportation, accommodations and other services provided by the identified sea, ground, and air operator Suppliers offer are subject to the terms and conditions contained in the tickets, exchange orders or vouchers issued by Supplier and/or their Suppliers, including terms and conditions on their respective Web sites.
5. Force Majeure: "Force Majeure” means, in relation to Service Provider, any circumstances beyond the reasonable control of Service Provider, (including, but without limitation, acts of God, explosion, flood, tempest, forceful wind, fire or accident, war or threat of war declared or undeclared, acts of terrorism, sabotage, insurrection, riots, strikes, civil disturbance, requisition, sickness, infectious disease, epidemics, pandemics, quarantine, government intervention, weather conditions, defects in machinery and vehicles, delay, wildlife, or other untoward occurrences). Service Provider shall not be deemed to be in breach of these terms and conditions or otherwise be liable to Client, by reason of delay in performance, or by non-performance, of any of its obligations hereunder to the extent that any such delay or non-performance is due to any Force Majeure.
Service Provider has no special knowledge of dangers during travel or at destinations. For information related to such dangers, Client is recommended to visit the State Department travel website at www.travel.state.gov, click on "Find International travel Information" then click on "Country Information", and fill in the name of the destination country. For medical and health information, Client is recommended to visit the Centers for Disease Control and Prevention’s website at www.cdc.gov/travel, then click on "Destinations" and scroll to the name of the destination country.
6. Releases. Client agrees that Service Provider and Service Provider’s agents, employees, officers, directors, associates, affiliated companies, guides, group leaders, and subcontractors (hereafter, "released parties”) are not liable for any personal injury or property damage, which may arise out of services provided by any Supplier. The released parties hereby disclaim any liability whether based on contract, tort, strict liability or otherwise, including without limitation liability for any direct, punitive, special consequential, incidental or indirect damages, in connection with the goods or services provided by any Supplier, including without limitation liability for any act, error, omission, injury, loss, accident, delay or irregularity which may be incurred through the fault, negligence, wilful acts, omissions or otherwise of such Supplier, or of any Supplier or their respective employees, agents, servants, or representatives, including, without limitation, their failure to deliver or their partial or inadequate delivery of services, fuel increases, and other matters outside of Service Provider’s control, and Client hereby exonerates service proivder from any liability with respect to the same.
With regard to services provided to Client by Service Provider, and without limiting the scope of immediately preceding paragraph, Client hereby agrees that released parties shall not be liable to Client for any indirect, special, incidental, exemplary, punitive or consequential damages (including loss of business, staff time, goodwill, use or other economic advantage), whether based upon breach of contract, breach of warranty, tort (including negligence), whether or not Client has previously been advised of the possibility of such damages. Client agrees that its sole remedy for any action against any of the released parties shall be the return of any moneys paid for services provided to Client by Service Provider. This waiver of indirect, incidental, exemplary, punitive or consequential damages shall not apply to those claims for damages arising from the gross negligence or intentional or willful misconduct of a party.
It is the decision of Client and individuals associated with Client to travel, and such decision is being made so with full knowledge of current travel recommendations and travel restrictions with regards to the risks of covid-19. Without limiting the scope of the immediately preceding two paragraphs, Client hereby expressly assumes all covid-19 risks and dangers for itself and all individuals associated with it, and Client hereby expressly agrees to forever release, discharge and hold released parties harmless against any and all liability, actions, causes of actions, suits, claims, and demands of any and every kind of nature whatsoever which Client or any individual associated with Client now has or which may hereafter arise out of or in connection with these covid-19 risks and dangers.
7. Client’s Obligation To Indemnify, Hold Harmless, and Defend. Client shall indemnify, hold harmless, and defend Service Provider and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "indemnified party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, that are incurred by indemnified party (collectively, "losses”), arising out of or related to any third-party claim alleging:
(a) Breach or non-fulfillment of any provision of this agreement by an indemnified party, or;
(b) Breach or non-fulfillment of any provision of this agreement by Client, or Client’s officers, directors, employees, or agents, or;
(c) Any negligent act or omission (whether such negligence is alleged to be sole, joint, active or passive) by an indemnified party (but not including intentional acts by an indemnified party or an act known to be unlawful by an indemnified party at the time of the act), or;
(d) Any negligent act or omission (whether such negligence is alleged to be sole, joint, active or passive) or intentional act by Client or Client’s officers, directors, employees, or agents, or;
(e) Any bodily injury, death of any person, or damage to real or tangible personal property caused by any negligent act or omission (whether such negligent is alleged to be sole, joint, active or passive) of an indemnified party (but not including intentional acts by an indemnified party or an act known to be unlawful by an indemnified party at the time of the act), or;
(f) Any bodily injury, death of any person, or damage to real or tangible personal property caused by any negligent act or omission (whether such negligent is alleged to be sole, joint, active or passive) or intentional act of Client or Client’s officers, directors, employees, or agents, or;
(g) Any failure by Client or Client’s officers, directors, employees, or agents to comply with any applicable federal, state, or local laws, regulations, or codes.
The obligations set forth in this section 7 shall survive the termination of the agreement.
8. Vaccination Requirements and Other Rules: Client acknowledges that Suppliers and governments may impose certain health requirements from time to time, such as required vaccinations, health affidavit forms, COVID-19 screenings prior to departure or upon arrival, face coverings, or quarantines. For the latest COVID-19 government travel regulations, Service Provider recommends that Client visits IATA’s website at https://www.iatatravelcentre.com/international-travel-document-news/1580226297.htm. For the latest Suppliers rules, Client is advised to check the website of each Supplier, and to keep checking because these rules are constantly changing, for which Service Provider is not responsible.
9. Other Foreign Entry Rules: Client assumes full and complete responsibility for checking and verifying any and all passport, visa, or other entry requirements of any destination and connecting points, and all conditions regarding health, safety, security, political stability, and labor or civil unrest at such destination. Many countries require passports to be valid for six months or more after date of entry. Some countries will not admit persons convicted of a crime. Some countries require both parents’ consent for minors to travel.
10. Price Increases: Travel arrangements involving airline and cruise components are subject to Suppliers’ supplemental price increases that may be imposed by the Suppliers and/or government, even after you have completed your purchase. Client hereby consents to any such price increases and authorize its credit or debit card to be used for them if the need arises. Suppliers have their own contracts covering cancellation penalties and other terms and conditions, and Client may be bound by those contracts regardless of whether Client receives notice of their terms.
11. Insurance: Service Provider strongly recommends that Client and any individual affiliated with Client purchase trip cancellation and travel accident insurance. Please note that, unless a cancel-for-any-reason policy is purchased, most travel insurance policies have a specific clause stating they do not cover epidemics and pandemics, especially when travel warnings are in place. No representation or description of the insurance made by Service Provider, or its employees or staff constitutes a binding assurance or promise about the insurance. Client agrees to hold Service Provider harmless for Client’s or any individual connected with Client’s election not to purchase travel insurance or for any denial of claim by travel insurer as it relates to covid-19 or any other claim under the policy.
12. Credit Card Merchant: Service Provider strongly recommends that Client and any individuals affiliated with Client use a credit card for purchases, so that rights under the Fair Credit Billing Act can be exercised upon nonreceipt of services purchased. If the Suppliers do not provide the services, the only recourse of Client and any individuals affiliated with Client will be against Suppliers. Client agrees that no right of charge-back may be had against Service Provider.
13. Term. This Agreement shall commence as of the Effective Date and shall continue through the conclusion of the Event.
14. Claims Deadline and Exclusive Jurisdiction: Client agrees to present any claims or disputes it may assert against Service Provider, of any nature arising out of or related to this Agreement or the services provided hereunder, in writing within 30 days of the conclusion of the Event to the address indicated for Service Provider in the signature section for this Agreement and to file suit, if any, within one year of the conclusion of the Event. Client acknowledges that this paragraph expressly limits the applicable statute of limitations to one year and that no action against Service Provider, of whatever nature, may be validly filed after such date, even if the applicable law would allow for a longer period of time
15. Choice of Law/Arbitration/Forum Selection. The parties agree that any and all disputes whatsoever in connection with, related to, or arising directly or indirectly from this agreement or the services provided by Service Provider hereunder shall be determined exclusively in accordance with the laws of the state of california without regard to its conflict of laws principles. This choice of law clause, however, shall not apply to the procedures governing the arbitration provided for in the immediately following paragraph, which is to be governed by the federal arbitration act.
The parties also agree that any dispute, claim or controversy in connection with, related to, or arising directing or indirectly from this agreement or the services provided under this agreement, whether arising in contract, tort or otherwise (including the interpretation and scope of this arbitration clause, and the arbitrability of any dispute, claim or controversy) shall be finally settled by arbitration in accordance with the then-prevailing commercial arbitration rules of the american arbitration association, as modified herein ("rules”). There shall be one arbitrator who shall be jointly selected by the parties. If the parties have not jointly agreed upon an arbitrator within twenty (20) calendar days of respondent’s receipt of claimant’s notice of intention to arbitrate, either party may request the american arbitration association to furnish the parties with a list of names from which the parties shall jointly select an arbitrator. If the parties have not agreed upon an arbitrator within ten (10) calendar days of the transmittal date of the list, then each party shall have an additional five (5) calendar days in which to strike any names objected to, number the remaining names in order of preference, and return the list to the american arbitration association, which shall then select an arbitrator in accordance with rule 13 of the rules. The place of arbitration shall be san francisco, california. The arbitration shall be governed by the federal arbitration act, 9 u.S.C. §§ 1-16, and not by any state law concerning arbitration. Each party shall bear its own costs and expenses in any such arbitration and one-half of the arbitrator’s fees and expenses. The parties also agree that any actions to enforce an arbitral award will be brought, if at all, in and before the united states district court for the northern district of california in san francisco, california, u.S.A., to the exclusion of the courts of any other country, state, city, municipality, county or locale. The parties consent to jurisdiction and waive any objection that may be available to any such action to enforce an arbitral award from being brought in such court.
16. No Party Deemed Drafter. All Parties to this Agreement have had the opportunity to consult and obtain advice of legal counsel in the negotiation and preparation of this Agreement. Accordingly, this Agreement has been drafted on the basis of the Parties' mutual contributions of language and the Agreement is not to be construed against any Party as being the drafter of this Agreement.
17. Complete Agreement, Modification or Waiver. This Agreement represents the complete understanding of the Parties. This contract may he amended after the date, hereof, in writing, including agreements by e-mail by and between the signed Parties. Any amendment, modification, termination, or waiver shall be binding when in writing and signed by the Party or Parties against whom the amendment, modification, termination, or waiver is sought to be enforced.
18. Assignment. Each Party agrees this Agreement is not assignable without the written consent of the other Party.
19. Severability. If any provision of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalid in any manner
20. Cancellation. If the Event is canceled by Client:
- on or following the Effective Date of this Agreement until sixty (60) days prior to the Event, Client will be charged a cancellation fee of fifty percent(50%) of Supplier’s total costs, plus expenses, including travel expenses, paid by Service Provider toward the Services;
- thirty (30) to sixty (60) days prior to the Event, Client will be charged a cancellation fee of seventy percent (70%) of Supplier’s total costs, plus expenses, including travel, paid by Service Priovider toward the Services; or.
- twenty-nine (29) or fewer days prior to the Event, Client will be charged a cancellation fee of one hundred percent (100%) of Supplier’s total costs, plus expenses, including travel expenses, paid by Service Provider toward the Services.
Both Parties understand that unanticipated events may occur, and Service Provider agrees to use reasonable efforts with Suppliers to minimize the cancellation fee. Service Provider agrees not to charge any cancellation fees beyond those actually charged by Suppliers.