WingX: Terms of Service (WingX Companions)
Last updated: 08/02/2018
Karibuni WingX Ltd (C 79910) (“WingX”; “We”; “Us” or “Our”) provides an online marketplace for booking and hiring travel guides, guided tours and other travel-related services or activities, through its site, which is accessible at (the “Site”), and/or through its corresponding mobile application , which may be downloaded here (the “App”).
By means of the Site and/or the App, a travel service provider can advertise the various guides, tours and/or other travel-related services or activities which he offers and provides, and effectively also makes these available for hire and booking by end-users (i.e. ‘travellers’, ‘tourists’). On the end-user front, the individual is directed to the online platform operated by WingX, from where these listed and available travel guides, tours and/or travel-related services or activities may be browsed, filtered (for example, by location) and searched (the “WingX Marketplace”), and ultimately booked and hired from the relevant travel service provider (collectively, the “Services”).
For a more detailed description of the Services, kindly read our Flyer.
Please read the following terms and conditions (the “Terms”) carefully, together with Our:
‘Acceptable Use Policy’ ;
each of which is incorporated by reference into these Terms.
These Terms effectively govern any use which you may make of the Services. Thus, specifically, as a WingX Companion, the listing and hire of any travel guides, tours and/or other travel-related services or activities which you may offer over the WingX Marketplace shall be regulated by these Terms.
Furthermore, these Terms also explain the process for listing any such guide, tour or other travel-related service or activity, receiving bookings from WingX User Members (as defined below), the payment and remittance process and also provide pertinent information with regards to, amongst others, cancellations, liability and account suspension or termination.
These Terms constitute a binding legal agreement between you and WingX. Therefore, please read these Terms and all other policies or terms incorporated by reference carefully.
If you do not agree to these Terms, click on the “REJECT” button. You must also leave this Site immediately and refrain from attempting to make use of Our Services.
You should print a copy of these Terms for future reference.
For identity purposes, WingX is a limited liability company, registered and incorporated under the laws of Malta, with company number C 79910 and having its registered address situated at Whitehall Mansions, Level 2, Ta’ Xbiex Seafront, Ta’ Xbiex XBX 1026, Malta.
General and Registration
WingX offers the full scope of the Services to registered members only, being:
- tour and travel guides, as well as providers of travel-related services or activities, who wish to place their guides, tours or travel-related services or activities on the WingX Marketplace and make them available for hire to users of the Site or App (“WingX Companions”); and also
- end-users who wish to book and hire such tours, guides, services or activities from its WingX Companions, as made available on the WingX Marketplace (“User Members”).
These Terms apply differently to User Members and to (unregistered) users of the Site and App. Generally, users of the Site and App are able to view and browse pages, service descriptions, reviews and profiles on the WingX Marketplace without registration, thereby allowing the activities/services offered by our WingX Companions to reach a wider audience. User registration is, however, required to make use of all other features (including, significantly, to be able to book and/or hire any of the guides, tours or travel-related services or activities which you (as a WingX Companion) have listed and made available for hire, to communicate with Our WingX Companions (such as yourself) and even to be able to post reviews or upload any other content).
With registration, natural and legal persons may become WingX Companions, provided they are duly licensed and registered (if applicable) and fully compliant with all legal and regulatory requirements applicable in the jurisdiction in which they operate (See Section 4 and 5 for more details).
Natural persons must be of full age; that is, eighteen (18) years old or higher, depending on the person’s domicile, residence or jurisdiction.
No-one shall have a right to become a WingX Companion. We reserve the exclusive right to refuse account registration and membership to the WingX Marketplace at our own discretion, without any obligation to provide reasons.
The registration of a legal person may only be undertaken by a natural person who is duly authorized to represent that legal person. The natural person must be named. In cases where an association of persons can only be effectively represented by more than one person, the natural person who acts on behalf of that legal person for Our purposes must be respectively authorized to do so.
Accordingly, by registering as a WingX Companion, you warrant and represent that you are duly authorized to offer the services on the WingX Marketplace and, in the case of a legal person, you are duly authorized to represent the legal person offering such services.
In order to become a WingX Companion, you will be directed to the Member Area of the WingX Marketplace and requested to register an account. At this point of account registration, you will be required to provide Us with your name or, as the case may be, trading name (or company name, if applicable), place of business or registered address, billing address, contact number and email address, VAT number (where applicable), and pertinently, the financial and bank account information which we need from you in order to effect the remittance of payments made by end-users following a successful booking made over the WingX Marketplace (less WingX’s commission).
You will additionally be required to provide information relating to the tours, guides, services or activities which you wish to list and make available for hire on the WingX Marketplace (such as, instance, location availability and event duration).
We will then review the information you provide and, if acceptable to Us, We will approve and register your account and send you a confirmation email. This confirmation email will contain your login details for your WingX Companion Member Area.
Your WingX Companion Member Area is where you (the WingX Companion) can update the information provided in your listing, your availabilities and your prices, and even create new listings.
WingX Companions are required to keep their registration information accurate and up-to-date, and to update such information accordingly when relevant changes occur. Your password must be kept secret and be of a sufficient degree of complexity. You may not select a member name which is already in use by someone else.
No person has a right to a particular member name or password. It is your sole responsibility to ensure that your password remains, at all times, fully confidential. We will not be liable for any disclosures of your member password which you may make or for any inadequate or insecure password you may select, or any consequences that may result from the same.
WingX Companion accounts are not transferable and may only be used by the WingX Companion personally. Creation of a new account following termination by WingX is not permitted.
Please note that separate terms apply to WingX User Members, which must be accepted by them in full prior to being able to book and hire any of the travel guides, tours and/or other travel-related services or activities listed on the WingX Marketplace.
Our Role and Your Relationship with User Members
As a prospective WingX Companion, WingX (via the WingX Marketplace which it operates) allows you to market the guides, tours, services and/or activities which you provide to a wider audience and customer base. Any listings which create on the WingX Marketplace are publicly accessible and may, therefore, be viewed and reviewed by the public in general. However, only (registered) User Members are then able to book and hire these guides, tours, services and/or activities which you (the WingX Companion) have listed on the WingX Marketplace.
In essence, the WingX Companion provides a communications and payment processing system which enables the connection between you (the WingX Companion) and User Members and allows for quick and straightforward bookings to be placed and transactions to be carried out.
A more detailed overview may be found in Our Flyer.
WingX is not, however, involved in the transactions and contracts created between members. Our role here is purely that of being the operator of the WingX Marketplace, and assisting with the placement and processing of bookings, strictly as an intermediary. While WingX may provide assistance or mediation in resolving disputes and other matters, in all cases, We are neither a direct party nor an indirect party, to any transactions and resultant contracts which you may enter into with a User Member through the WingX Marketplace (whether contemplated, concluded or canceled).
All legal and contractual obligations relating to the invitation to place an order, or the actual booking and hire of the guides, tours and/or related travel-services or activities listed on the WingX Marketplace are the sole responsibility of the WingX Companion concerned, to the exclusion of WingX. Any contractual or other relationship which arises when a User Member books and hire any of the guides, tours, services or activities which you (the WingX Companion) have listed on the WingX Marketplace is strictly between yourself and that User Member and, for all intents and purposes at law, WingX shall be held and construed as a third party to that relationship.
Our Relationship with WingX Companions
Nothing in these Terms shall be construed as creating an employment or agency relationship, or joint venture, between yourself (the WingX Companion) and WingX. Our role is limited to that of an intermediary which facilitates the marketing, booking, and provision of your services to end-users of the Site and App. You remain an entirely independent contractor and solely responsible to the User Members with whom you have contracted with over the WingX Marketplace for the provision of the tours, guides, service or activities which you offer, at all times.
WingX is not responsible in any way for the accuracy of the information which you provide and input in any listing you create on the WingX Marketplace. It is your responsibility, as a WingX Companion, to ensure that all the information (including service descriptions, availability and prices) that accompanies your listing is accurate, complete and up-to-date in all respects, at all times.
It is also your sole responsibility to manage your bookings effectively, including in terms of availability and/or sudden unavailability, postponements and relevant updates.
Thus, you hereby expressly acknowledge and accept that WingX is not, in any way, responsible for the quality, timing, fitness, suitability or any other aspect of the guides, tours or other travel-related services or activities which you may offer and list on the WingX Marketplace.
Generally, WingX attempts to monitor the actions of its User Members and fully takes into account any feedback you may provide regarding your experiences and interactions with such User Members. On the basis of this monitoring and your feedback, WingX will suspend or terminate the privileges of any User Member who it considers to be in breach of its policies and/or terms of service.
Nonetheless, WingX neither accepts nor assumes any responsibility for the integrity (or lack thereof) and/or actions of its User Members, including in particular for any fraud or fraudulent payments that may be committed by them. Therefore, in the event of (for example) any fraudulent bookings or payments made by a User Member, your right of legal recourse, as the affected WingX Companion, shall always lie against that particular User Member and never WingX.
Accordingly, without prejudice to Clause 20 (‘Limitations of Liability’), you (the WingX Companion) expressly acknowledge and accept that no actions, claims or suits for damages, losses or otherwise (including loss of revenue, business or profit) will be directed or instituted against WingX, when such is attributable to and/or the result of the conduct or actions of a User Member. Moreover, even if vested with such litigious rights against WingX at law, despite the latter merely being an intermediary and third party to the contract concluded between you and the User Member, you hereby agree to waive these rights in their entirety.
Furthermore, it is the duty of each WingX Companion to appropriately inform itself as to the legal obligations which apply to the provision of services in general, to the provision of its specific travel-related services or activities (including tour guides) and to the conclusion of contracts, with particular emphasis on those which apply within its jurisdiction, and to naturally comply with these obligations (e.g. inclusion of imprint, tax receipt, revocation and withdrawal, instruction and so on).
The provision of travel-related services or activities, depending on its nature, may be subject to particular licensing or authorization requirements. For instance, within a certain jurisdiction, an individual may only act as a tour guide and offer such guided tours to the public if he/she has been duly licensed by the competent authority and provided that license is naturally still valid and in effect.
You therefore represent and warrant as a precondition of your account registration that:
- in respect of the guides, tours, services or activities which you have listed on the WingX Marketplace, you are duly authorised and licensed to provide them (both commercially and otherwise) in the jurisdictions/s in which you have indicated them as being available;
- you possess and maintain and will at times, for the duration of your account registration as a WingX Companion, possess and maintain all such applicable licences, permits and/or authorisations, as may be required in the jurisdiction/s in which you operate.
- Where no such licensing, permit or authorisations requirements apply in the jurisdictions in which you operate, you represent and warrant to WingX that that is the case.
WingX reserves the right to ask you (the WingX Companion) to furnish copies of the licenses, permits or authorizations that have been issued to you, where applicable. Your failure to do so when requested can lead to the refusal to register your account, or its suspension or termination.
You expressly acknowledge and accept that WingX is under no obligation to verify or investigate the validity of these representations and warranties provided by you, including in terms of any copies which you may furnish or declarations you may make regarding the applicability or non-applicability of any such licensing, permits or authorisation requirements in the jurisdictions in which you operate and/or have indicated your services as being available on the WingX Marketplace.
Responsibility for the accuracy and completeness of these warranties lies solely with you.
You are further responsible for ensuring that the representations and warranties which you have provided under this Section 5 remain accurate and up-to-date at all times, taking into account any developments in the laws of the jurisdiction/s in which you operate and/or have indicated your services as being available on the WingX Marketplace.
The acceptance of any listing shall be at WingX’s sole discretion.
We reserve the right to reject any listings which you may submit, or attempt to create, from appearing on or being available to book through the WingX Marketplace or to, without prior notice, de-list any already listed guides, services or activities, without any obligation to provide reasons thereto.
Consequently, by creating a listing, you (the WingX Companion) are also agreeing:
- as the service provider, to observe all applicable laws and regulatory requirements pertaining to its (potential) performance or provision, and to fulfil any booking in accordance with these Terms and the listing information and/or other information which you supply;
- to ensure that the description and background information provided in relation to the listing, including the duration of the event, what it encompasses, location availability, duration, any hazards or physical exertion involved, is accurate and complete in all respects, at all times;
- that WingX reserves and retains the right to determine the placement of the listing amongst the results which may be generated through keyword searches and filters entered by users accessing and visiting the WingX Marketplace; and
- that WingX may alter and/or remove Metatags and URL links which have been included in a listing so as not to affect third party search engine results.
- If the services or activities that you are offering via the WingX Marketplace entail any physical exertion and/or require a degree of physical fitness, and/or could potentially involve certain hazards, dangers or physical risks, this must all be fully and appropriately communicated to the users of the WingX Marketplace in advance (i.e. prior to booking). Such information should be inserted amongst the listing information, in such a manner that it is explicitly brought to the user’s attention. You are exclusively responsible for the consequences that may ensue from any inaccuracies or omissions.
User Members may post feedback and/or reviews of the guides, tours, services and/or activities which you market and offer via the WingX Marketplace. WingX is neither author of, nor in any way responsible for, any such user-generated content and/or any reviews posted on the WingX Marketplace (including in terms of its veracity, fairness or accuracy).
In the event you receive consistently negative feedback from our User Members, or We otherwise receive report/s of any improprieties on your part, We reserve the right to cancel your registration as a WingX Companion and remove any and all listings which you may have on the WingX Marketplace.
In any event, WingX may terminate you account and cancel your registration as a User Member immediately at its sole discretion, without prior warning or any obligation to give reasons. All rights have hereto been reserved by WingX.
The WingX Marketplace features a wide and diverse range of travel guides, guided tours and other travel-related services or activities. It is and at all remains entirely and exclusively at your discretion (the WingX Companion) whether to agree to provide your services or activities to a user who has indicated an interest in booking and hiring them.
For the sake of reiteration, prior registration is required in order to be able to list your services or activities on the WingX Marketplace and make them available to book and hire. Similarly, only registered users (User Members) will be able to contact you and place bookings.
Once the User Member has decided upon a particular travel guide, tour or travel-related service or activity that he/she wishes to book and hire, a prompt will appear enabling that User Member to make contact with the WingX Companion concerned through the ‘chat functionality’ available on the Site or App, as applicable. We neither monitor nor screen these private communications.
Upon the submission of a booking by a User Member, you will receive a prompt from us requesting you to indicate your acceptance or otherwise to fulfill the booking.
Accordingly, bookings submitted by User Members will be processed and confirmed over the WingX Marketplace only upon and following your acceptance to provide the requested services or activities, at the indicated time and location. Once such acceptance has been provided by you, the User Member will then be asked to submit the relevant payment.
Upon providing your acceptance, a legally binding contract is effectively formed and concluded between you and the User Member concerned. Consequently, any failure on your part to observe and fulfil your resultant contractual obligations, despite having provided your acceptance to the booking, shall be legally actionable and damages may thus be awarded against you.
We use third-party service providers in order to process payments made by User Members (namely, Paypal and Braintree Payments). In order to process and remits these payments to you (less Our commission), your billing information, including bank account details, would need to be processed
For further information on these billing and payment processing services, please contact Our third-party service provider at email@example.com.
You hereby agree to hold WingX harmless to the maximum extent permitted by applicable law for any damages or other losses that may result from the disclosure or release of your information by any of these third-party service providers.
When creating a listing on the WingX Marketplace, you must indicate the price of the service offered. The indicated price must be inclusive of all applicable taxes and surcharges. WingX shall not be responsible for the determination, computation or payment of applicable taxes or surcharges, including without limitation VAT. Any shortfalls, defaults or failure to take any such applicable taxes or surcharges into account shall be your sole and exclusive responsibility.
Once the transaction has been processed, We will send a confirmation of the booking to both you as well as the User Member concerned.
As reiterated above, WingX merely acts as an intermediary and you are therefore solely responsible for issuing the required receipt or invoice to the User Member that has engaged your services, in conformity with applicable legal and regulatory requirements.
As already indicated, WingX charges a commission fee for each booking and transaction carried out over the WingX Marketplace.
Presently, this commission is charged at the rate of 10% of the transactions price.
However, in accordance with these Terms, WingX reserves all rights to revise this commission rate.
The Commission due shall be charged and automatically deducted from the payment supplied by the User Member. Once this has been carried out, the remaining balance will then be remitted to the bank account details you have supplied once the booked tour, guide, service or activity has been provided to the User Member, and any confirmation thereto which We may request has been furnished. Until such time, those funds will be held in escrow by Us.
As a WingX Companion, you are solely responsible for the accuracy and veracity of the information accompanying your listing(s) on the WingX Marketplace, including descriptions of the relevant guides, tours, services or activities, booking availabilities (including times and dates), duration, elements of physical exertion and risks, price offers, offers of discounts or special prices and any other promotions, and all other information which you may furnish to User Members through your communications or interactions with them over the Site or App, as applicable.
You accept that We are not bound to make any attempt to verify this information and/or any other statements made by you and that We shall not, in any way, be responsible for any omissions, inaccuracies or false assertions contained in the information that you provide as part of your listing or in the information which you otherwise impart to User Members via private communications.
Once a booking has been accepted by you (the WingX Companion) and a confirmation email has also been issued to both you and the User Member concerned, as described in Section 8, that User Member shall remain entitled to cancel its booking, in accordance with your cancellation policy.
Cancellations will be notified to you once We have received confirmation from the User Member. It is your duty to respect such cancellations if made in accordance with your cancellation policy.
Thus, it is also exclusively your obligation to provide a copy of your cancellation policy to the User Member/s concerned and to explicitly advise them about any cancellation fees and terms thereof that you have in place, for the latter’s acceptance prior to the confirmation of any booking. You will be solely responsible for the consequences of any defaults or omissions in this regard.
Your cancellation policy must take into account that if the User Member constitutes a “consumer” at law and resides in the European Union, he/she may be entitled to a 14-day “cooling-off period” or a “right of withdrawal”, during which the User Member may withdraw from the contract concluded with you (the WingX Companion) without giving reasons, and shall be entitled to full reimbursement.
Read more about the EU right of withdrawal in this Help article
Alternatively, if you (the WingX Companion) need to cancel due to, for instance, the weather or other circumstances, the affected User Member will be entitled to choose at his or her own discretion whether to (i) cancel for good the booked service or activity or (ii) re-schedule to a new date. If the User Member opts to cancel for good the booked service or activity, no charge shall be placed on his/her account and you (the WingX Companion) agree to waive the charge and payment of any cancellation fees or other fees provided for in your cancellation policy.
WingX is not responsible, and assumes no responsibility, for any damages, claims or other expenses associated with or otherwise arising from cancellations.
Payment Agent and Methods
The User Member’s payment, fewer WingX’s commission fee, will be remitted to your bank account the succeeding business day following that on which the booked tour, guide, service or activity has been provided to that User Member, subject to confirmation. Please see Section 9 for further details.
Accordingly, where the User Member is a “consumer” and invokes his/her right of withdrawal within the applicable “cooling-off” period afforded to him at law, We (through Our third-party service provider) will simply return in full to the User Member the payment that he/she had initially supplied, inclusive of the commission fee that would have otherwise been due to Us.
Thus, you expressly acknowledge and accept that in such circumstances, i.e. where the right of withdrawal has been validly invoked, as described above, you (the WingX Companion) will not be entitled to receive the payment that was made by the User Member for the canceled booking and WingX will not be under any legal obligation to remit that same payment to your account.
Furthermore, in all cases, by creating a listing, you (the WingX Companion) are expressly appointing WingX to act as your payment agent, strictly and limitedly to the following:
- receiving and holding the payment made by the User Member and releasing it, net of the commission due, upon confirmation that the booked service or activity has been provided; and
- returning any such payments back to the User Member upon a normal cancellation (minus cancellation fees, where applicable or possible under these Terms) or the exercise of a valid right of withdrawal (in which case cancellation fees cannot be charged).
- This limited appointment is without prejudice to and shall not affect the generality of the restriction set out in Section 4, wherein it is provided that no employment or agency relationship or joint venture shall arise or be created between WingX and WingX Companions, and that such WingX Companions will, for all intents and purposes, remain and be regarded as independent contractors at all times.
Information Provided by You
As already indicated in these Terms, you (the WingX Companion) are fully responsible for providing, accurate, up-to-date and complete information in connection with any listing which you may create on the WingX Marketplace, including without limitation descriptions of the relevant guides, tours, services or activities, booking availabilities (including times and dates), duration, elements of physical exertion and risks, price offers, offers of discounts or special prices and any other promotions.
We shall not be responsible and, at Our own discretion, may decide to seek legal remedies against you for any claims or actions (of whatever nature or form) which relate to or otherwise arise out of any inaccurate, untimely or incomplete information which you may provide to Us, Our third-party payment service provider and/or to User Members, or which you otherwise in general communicate or transmit over the WingX Marketplace.
WingX is committed to ensuring the privacy of the information which you give Us.
Intellectual Property Rights
All text, graphics, editorial content, logos, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and all other content or material found on the Site, App or WingX Marketplace is owned by WingX or is otherwise used by WingX with the proprietor’s permission (collectively, “Proprietary Material”).
This Proprietary Material is protected in all forms, media and technologies, whether now known or hereafter devised, and all rights existing or arising thereto (including intellectual property rights) are expressly reserved. Amongst others, you may not copy, download, use, redesign, reconfigure, transmit or retransmit or create derivative works of the Proprietary Material (or any part thereof).
You acknowledge that the availability of the Site, App or WingX Marketplace does not authorize you to make use of the Proprietary Material, or any part thereof, in a manner which would be in breach of either Our or third party intellectual property rights, or any other proprietary rights.
Your failure to abide by this Section 15 will expose you to damages and, in the case of a breach of any third-party rights, you agree to defend, indemnify and hold WingX harmless, to the highest degree afforded by law, against any and all claims, actions or suits (howsoever described) which may be brought in connection with the said breach.
Notice of Trademark Rights
All logos, wordmarks, service marks and other trademarks appearing on the Site, App or WingX Marketplace are either owned by or licensed to WingX.
You may not copy or use (in any manner) any of these logos, wordmarks, service marks or other trademarks without Our prior written permission or that of the applicable proprietor.
Rights of Use
You hereby agree to grant WingX all of your rights, title and interest in and to any content which you may post on the WingX Marketplace, including any service descriptions, write-ups, images, photographs or videos, without prejudice though to any trademarks which may be registered in your favor or in which you have acquired the relative goodwill (including unregistered marks).
This assignment covers, in particular, the right to reproduce, distribute, disseminate, adapt, modify communicate and make available such content to the public (including the results of any such adaptations or modifications). For the avoidance of doubts, these assigned rights shall remain vested with WingX even following the end or termination of your membership as a WingX Companion.
Your moral rights (if applicable) shall remain unaffected.
In the case of your trademarks (both registered and unregistered), you hereby grant WingX a worldwide license to use and display them on the WingX Marketplace, without limitation of purpose and scope, for the duration of your membership as a WingX Companion.
Should any consideration be due in terms of applicable law for this assignment and/or grant of license (as applicable), you hereby warrant to accept the sum of EUR 5 as a full and final settlement, covering both this aforementioned assignment and grant of license. Furthermore, where it results that consideration is due in terms of applicable, WingX shall not be construed as being under any legal obligation to acquire such a license and/or the rights, title, and interest in and to such content.
The rights granted above may be assigned or sub-licensed (as applicable) by WingX to third parties. WingX shall not be liable to pay any additional remuneration to you in such cases.
WingX Companions agree to fully release and defend, indemnify and hold WingX harmless, to the highest degree afforded by law, from and against any and all claims, actions or suits (howsoever described or termed) which User Members or other third parties might assert against WingX due to:
- infringement of their rights, including intellectual property rights; or
- a breach of duty by that WingX Companion, including (in particular) failure to conduct and/or provide tours, guides, services or activities booked over the WingX Marketplace under safe conditions and with all required or recommended precautions having been taken; or
- a breach of any contractual obligation by that WingX Companion, including (in particular) a failure to fulfill a booking, concluded with a User Member, whether fully or only in relation to certain aspect/s of that same booking; or
- any breach of these Terms by that WingX Companion, including (in particular) the representations and warranties which have been given herein.
- This means that you (the WingX Companion) are bound to defend WingX (including its officers, directors, employees, sub-contractors, agents) and hold the same harmless from any legal claim, suit, action or demand (including reasonable attorney’s fees, as well as administrative or regulatory fines) that arises from your actions, omissions or defaults (including in terms of your dealings with User Members), your use (or misuse of the WingX Marketplace, the Site, App or the Services), your breach of these Terms (or any part thereof), your infringement of someone else’s rights, your failure to fulfil a booking concluded with a User Member or failure to perform any particular aspect of that booking.
Indicatively, this indemnity covers any injuries, misadventures, trauma, damage to property, bodily harm, disability and in a worst case scenario even death, which may either result from or arise in connection with your (the WingX Companion) provision or performance of any guide, tour and/or travel-related service or activity that has been booked via the WingX Marketplace, particularly where such is due to any defaults, misconduct, negligence, oversights, omissions, failure to take precautions or monitor the status or well-being of the participants on your part.
We reserve the right to handle Our legal defense however We see fit, even if you are indemnifying us, in which case you agree to cooperate with Us in full so that We cane execute Our strategy. Reasonable costs of legal defense (in particular, attorney fees) which WingX has demonstrably incurred through the misconduct of the WingX Companion must also be reimbursed in full.
Waiver and Release
User Members have been contractually obligated to sign a ‘Liability Waiver and Release’ prior to the commencement of any tour, guide and/or travel-related service or activity which has been booked via the WingX Marketplace.
You can view a copy of the Liability Release.
It is in your interest, and also exclusively your responsibility, to require ever User Member that concludes a booking with you to provide you with a signed off this ‘Liability Waiver and Release’ prior to the commencement of performance of any such guide, tour, service or activity. If a User Member refuses to sign this ‘Liability Waiver and Release’ or fails to provide you with a signed copy, you shall be entitled to refuse to fulfill the booking, without any obligation to provide a refund to or otherwise reimburse that User Member.
If you fulfill a booking without having received a signed ‘Liability Waiver and Release’ from the User Member, you do so entirely at your own risk and agree that you shall exclusively bear and be responsible for all possible consequences that may ensue as a result thereof.
No modifications or revisions may be made to this ‘Liability Waiver and Release’ without Our prior explicit consent in writing. You shall be solely responsible for any modifications or revisions that you make to the ‘Liability Waiver and Release’ without Our consent, including its legal consequences.
Limitation of Liability
The following provisions on the limitation of liability of WingX apply to all claims for losses, damages or liability, irrespective of the legal grounds on which such claims are based (e.g. guarantee, default, breach of duty or contractual obligation, impediment to performance or negligence), except for those which WingX cannot exclude at law, such as:
- claims of WingX Companions for death or personal injury caused by Our gross negligence or that of Our employees, agents or sub-contractors; and/or
- rights and claims of WingX Companions based on the willful misconduct, fraudulent misrepresentation, fraudulent or grossly behavior on the part of WingX itself, its legal representatives or vicarious agents,
- Accordingly, in respect of these exceptions, the statutory provisions alone shall apply.
Without prejudice to those exceptions, and to the fullest extent permitted by applicable law, neither WingX, nor Our officers, directors, employees, sub-contractors or agents, shall be liable to you for any loss or damage of whatever kind, whether in contract, tort (including negligence or default), breach of statutory duty or otherwise, even if foreseeable, arising under or in connection with your:
- access to, or inability to access, the WingX Marketplace, the Site, App or Services;
- use of, or inability to use, the WingX Marketplace, the Site, App or Services; and
- use of or reliance on any content displayed on the WingX Marketplace, the Site or App.
In particular, We will not be liable for:
- loss of profits, sales, business, or revenue;
- business interruption;
- loss of anticipated savings;
- loss of business opportunity, goodwill or reputation;
- damages sustained to your computer equipment;
- any indirect, exemplary, punitive, or consequential loss or damage; or
- any damages sustained to your computer equipment.
- No claims against WingX can exist where non-availability affected a booking with a WingX User Member. WingX shall not be responsible for any default of payment on the part of the User Member.
If, however, such liability cannot be excluded in terms of applicable law, then by way of pre-liquidated damages, Our maximum liability to you (whether in contract, tort, statute, negligence or otherwise), or that of Our officers, directors, employees, sub-contractors or agents, is hereby being set per annum (irrespective of the number of claims) to the lesser of:
- the amount of actual damages suffered;
- or WingX is not liable for the performance of bookings and/or other agreements between User Members and WingX Companions.
WingX is not obligated to monitor the information transmitted or stored (although it may do so for the purposes of quality assurance), and is under no obligation to search for possibly illegal content.
WingX may, without prior notice and with immediate effect, terminate your account and/or suspend or permanently block your access to the WingX Marketplace at any time for any reason, including due to any improper use of the WingX Marketplace, Site or App, or any breach or failure to comply with these Terms or the other policies or terms which have been incorporated herein by reference.
Where your registration as a WingX Companion is terminated (for any reason whatsoever), your agreement with WingX under these Terms shall terminate immediately, although the following sections shall survive and remain in effect: Section 2 (General and Registration); Section 10 (Information Reliance); Section 13 (Information Provided by You); Section 15 (Intellectual Property Rights); Section 16 (Notice of Trademark Rights); Section 17 (Rights of Use); Section 18 (Indemnity); Section 19 (Waiver and Release), Section 20 (Limitation of Liability); Section 23 (Miscellaneous Provisions), and Section 24 (Applicable Law and Jurisdiction).
Any notice or other communication to be given by Us in connection with these Terms shall be in ‘writing’ and sent by facsimile, post-paid registered or certified mail return (receipt requested) or by electronic mail. All forms of service shall be considered valid.
The most recent version of the Terms is stored on the Site and is available to be viewed by anyone. Earlier versions of the Terms which are not more than two years old are available upon request.
WingX is entitled, for the purpose of performing its obligations under these Terms, to delegate or otherwise avail itself of third parties’ services, which are in addition to those provided by WingX Companions. Claims against WingX may not be assigned to third parties either in full or in part.
WingX may transfer its rights and obligations under these Terms to any other trader, entity or organization, by giving five (5) days’ notice in writing. These Terms are however personal to you. You may only transfer your rights or obligations under these Terms if We agree to this in writing. No other person or entity shall have any right to enforce these Terms.
If any court, tribunal or other authority finds any clause or provision in these Terms, or part thereof, to be illegal, the rest of the Terms, including the unaffected part of the clause or provision concerned, will continue to apply in full force and effect.
These Terms shall inure to Our benefit, and that of Our successors and assignees.
If We do not insist immediately that you do anything you are required to do under these Terms, or if We otherwise delay in taking steps against you in respect of any breach on your part of these Terms, that will not mean that you do not have to do those things and it will not in any way prevent Us from taking such steps against you at a future, later date.
We reserve the right to make changes to these Terms from time to time.
We shall notify you with the updated Terms, and shall also post the updates on Our Site. Unless you communicate otherwise within one (1) week of your receipt of the updated Terms or upon Us posting the relevant updated on the Site (whichever is the earlier of the two), you will be deemed to have accepted and consented to the updated Terms in full.
Applicable Law and Jurisdiction
The legal relationship between the parties to these Terms is subject exclusively to the laws of Malta. The provisions of the Vienna UN Convention on Contracts for the International Sale of Goods of 11 April 1980 do not apply (if applicable in the first place).
For all disputes which may arise between you and WingX in relation to these Terms or as generally arising from the use of the Services and/or WingX Marketplace, the parties will make all amicable attempts to resolve the dispute in the least onerous manner and without the need of instituting judicial proceedings (of whatever form or nature). However, if the dispute cannot be resolved, the parties agree that the Courts of Malta shall have exclusive jurisdiction to hear and determine the dispute.