TERMS OF SERVICE
As of December 11, 2020
1. PARTIES. These terms of service (“Agreement”) are made as of the date stated in your respective Proposal (as defined herein) between Out in Colombia Travel, DBA for Toro International LLC, an Arizona limited liability company (“Company”) and you (“you” or “Client”). (Company, you and Client collectively and individually “Parties” or “Party”).
2. TERM. The term of this Agreement shall commence on the date specified in the first Proposal (as defined herein) you execute with the Company and shall continue until the Company has completed providing the Services (as defined herein) in all active Proposals (as defined herein) executed between the Parties (“Term”).
3. SERVICES; PROPOSALS. The Client retains the Company to provide, and the Company shall provide, the services described in statements of work whereby the Company agrees to provide specific services to the Client (statement of work, the “Proposal” or “Proposals”) (the services, the “Services”).
4. PROPOSALS. A Proposal may be amended by the Parties from time to time provided such modifications are in writing, and incorporates by reference this Agreement. Only services specifically authorized by such Proposal shall be approved for payment. The Company shall make no changes in the scope, character or complexity of the Services defined in each Proposal without having first received an amended Proposal or a new Proposal authorizing such changes. Any such services furnished by the Company without an amended or new Proposal shall be at the risk and expense of the Company and no claim for compensation for any such additional services shall be made.
5. COMPENSATION. The Client shall pay the Company the services fees (“Service Fees”) specified in each Proposal.
6. EXPENSES. The Client shall pay for the third party expenses specified in each Proposal.
7. RESPONSIBILITIES. The Parties agree that they shall have the duties and responsibilities outlined in each Proposal.
8. TOUR PACKAGES.
a. Booking Terms. All trips are subject to availability. All bookings agreed upon are considered an offering to purchased discussed services. The Company reserves the right to accept, refuse, and/or cancel services at any time. All agreed upon Proposals, contracts and services will be executed in accordance with our highest standards, services, and reasonable skill to complete our obligations to you pursuant to this Agreement. Bookings will only be considered valid and respected if made by persons aged eighteen years or older. For groups of two or more, payment terms must be met for each person in order to comply with this Agreement. The initial deposit payment will be treated by us as confirmation that you have read, understand, and accept all the terms included in the applicable Package and in this Agreement. It is important that you provide us with all requested information and documentation and it is your responsibility to ensure that the information you provide to us is correct.
b. Visual Data Release. By booking with the Company you agree, unless expressly stated otherwise, that you allow the Company to use any photos or video taken by Company staff and representatives during your trip, in which you appear, for any and all media, promotional, and commercial materials including but not limited to our website, social media accounts, newsletters, and printed materials. We will only use your first name and country of residence as identifiers. We will never use your full name or personal information unless written permission is otherwise given. Additionally, any statements you provide to us by email, in writing, in response to surveys and questionnaires or on public review websites like TripAdvisor can be used by us on our website and in promotional and commercial materials with due effort made to protect your privacy and identity. If you do not wish to be included in any of these materials you must write to us stating your wishes not to be included. After reception of your request we will remove your photos or information in the fastest reasonable manner. This request must be made within 30 days of your trip to prevent future printed materials or 30 days of posting on the internet.
c. Payment and Account Accuracy. A price for each tour will be given at the time of proposal. In the case in which you choose one of our suggested itinerary tour packages, a price will still be given after an initial conversation with you. Depending on activities added or subtracted we reserve the right to adjust the price with your knowledge until the time at which the proposal is agreed upon and deposit is placed. In order to secure a booking you will be required to pay us a non-refundable deposit as reflected on your Proposal for each traveler. Dates for subsequent payments will be fixed within the final proposal and payment instructions. Depending on the amount of days booked before travel, we may require a deposit in excess of 50%. This is because several local service providers (including, but not limited to, hotels, airlines, and specific guides) often require a 100% up-front payment to secure a reservation. We reserve the right to request payment in full depending on the circumstances. In order to secure many of these reservations we will also require legible copies of the passports of all travelers in your party at the time of the initial deposit. A scanned/jpeg copy is fully acceptable provided it is legible. These documents will not be made available to anyone outside of our office staff, except where necessary to complete a reservation or activity. We will under no circumstances sell, share, or otherwise compromise this information.
If due dates for payments are not adhered to nor otherwise and previously advised, we will treat the booking as cancelled by you and you will be liable to our cancellation fees as noted in our payment document (see changes or cancellation sections for more details). We accept payment as specified in your Proposal. Additional costs may be applied to any changes carried out by us at your request (see changes or cancellation sections for more details).
d. Booking. Should any change of pricing occur, Clients will be notified prior to payment of the initial deposit. Any changes thereafter to the itinerary may include additional charges for which the Client will be notified prior to confirming the itinerary. Proposal prices shall be stated in United States Dollars ($ USD). It should be noted that, occasionally, some items in our travel itineraries may not be available for reasons outside of our control. If this occurs we shall substitute these items for other items that we consider comparable in our sole discretion.
Any additional charges that result from increased transportation costs, itinerary changes, port fees, or fluctuations in the exchange rate may be passed on to the Client. We reserve the right to pass along any additional charges incurred during the trip as a result of Client action including, but not limited to: extra luggage charges and other unforeseen transportation charges, extra charges incurred at hotels such as mini-bar usage, additional guide services not scheduled and agreed to in the Proposal. Our Proposals include only the items specified in each Proposal. Our proposals do not include personal Client expenditures, hotel extras, extra transport fees incurred by Clients outside of scheduled tour events (expenses incurred separate from our tour services), taxes and compulsory charges paid to the government at point of travel (apart from certain applicable port fees), regulatory bodies or airlines after you have booked, security charges, or extra travelers’ insurance. Final price and inclusions will be sent to you and confirmed by us at the time of booking.
It should be noted that prices fluctuate depending on the number of people in the travel party. Different prices may be offered by the Company to you depending on the number of people you may include in the booking. Certain numbers of people change certain price breaks so not all discounts will be equal. We reserve the right to apply further charges where the number of people booking falls below the amount required to offer a discounted rate. We also reserve the right to cancel or change the rate of travel if the number of people in a group lowers prior to the final payment.
e. Group Tours With Fixed Dates. Each group tour with fixed dates is guaranteed to depart once we have 6 fully paid travelers for that tour. If fewer than 6 travelers pay in full for the group trip we reserve the right to postpone the departure date, in which case we will offer you the option to travel with the group on the new dates or convert your trip into a private tour for the original dates. If we choose to cancel the group tour we will offer you the option to convert your trip into a private tour or provide you with a full credit towards future travel. For group trips, if you are traveling alone, we will match you with another group participant to share a room.
f. Changes Made by the Client. In the case in which a member of your travel party cannot travel for any reason (including illness or death) we will gladly transfer their reservation to another person of your choosing as long as you notify us in writing and the person sends us travel information and a passport copy in a reasonable timeframe to make reservation changes. Should you request other changes to the itinerary after the initial booking process has been completed we will make a reasonable effort to meet your request but cannot guarantee the availability of changes. If a person from a booked group with fixed dates backs out after initial bookings are made, the group will still be responsible for fixed fees associated with the booking. All changes to the itinerary and/or travelers involved must be received in writing prior to making changes. Changes to groups will be authorized by a group leader, responsible for coordinating with the Company. Changes to the itinerary may incur extra fees that will be assumed by the Client(s). If a change is requested to an airline ticket or other transportation that cannot be changed, the Client(s) will be responsible for the cost of the original ticket as well as the cost of a new ticket, even if the reason for change is illness or death.
g. Cancellations Made By the Client. If you wish at any time to cancel all or part of your trip or that of anyone in your group after the initial deposit has been made, you must specify your wishes in writing. A group leader must do so in the case of a group. Unless otherwise stated, we will assess the following rules to payments: the initial non-refundable payment; and a second final payment 60 days prior to trip that is 50% refundable as long as trip is cancelled between 15 and 29 days ahead of first travel date and 100% refundable as long as the trip is canceled 30 days or more ahead of first travel date. Second final payment is not refundable if trip is cancelled within 14 days of first travel date.
We must assume costs of reservations as soon as you make your deposit. For that reason you must compensate us for any losses and expenses incurred as a result of cancellation on your part as outlined above. We recommend that you purchase insurance to cover cancellation.
h. Cancellations Made By Company. We agree to use commercially reasonable efforts to provide the Services. As operational norms in many jurisdictions are often unpredictable, we may be faced with unforeseen closures of certain attractions, faced with particular holidays that affect travel and availability, and other changes that often affect travel in the country. As we work to make your reservations as much in advance as possible it is not uncommon for us to be faced with the necessity to alter parts of the itinerary. We reserve the right to make these changes in the best interest of the Client, and will keep the Client informed of any such changes that occur.
Changes that occur are often minor but at times may create “major” shifts in the itinerary. A “major” change is any one which results in a fundamental change to the itinerary and the Services, including but not limited to: price changes, changes in departure airports, destination changes, downgrades in hotel, and decreases or increases of trip times by more than 12 hours. Any “minor” changes include everything else that does not fundamentally change Services. We will attempt to alert you to any changes as soon as reasonably possible, although we reserve the right not to provide prior notice to you where we determine, in our sole discretion, that informing you in advance is unnecessary.
We are not obligated to compensate you for any minor changes made. However, if we have to make a “major” change we will notify you as soon as possible and offer the following options: agree to any changes and price shifts and continue as planned; change the itinerary altogether, change parts of the trip or change the dates (based on availability); reduce the length or scope of the trip and receive a partial refund; or cancel the trip altogether and receive a refund on all funds paid by you to us above the cost of the initial deposit.
In the event that the trip must be canceled for reasons within our reasonable control, we will refund to you the full price paid for the trip. We will not compensate or accept liability for changes that occur beyond our reasonable control, including but not limited to: strikes, lock-out or labor disputes, natural disasters, war, riots, civil unrest, malicious damage, change in laws, shutting of transportation systems, accidents, adverse weather conditions or fires that affect airports or travel links and operations, flight delays, air traffic control issues, siege or acts of terrorism or other security alerts.
i. Company’s Liability to Clients. We accept responsibility for providing the Services, subject to the terms outlined in the Proposal and this Agreement. If your trip did not meet your expectations please alert us as soon as possible in writing with specific details.
We agree to use commercially reasonable efforts to update our website regularly, however we cannot guarantee 100% accuracy. In cases in which details outlined in a Proposal are in conflict with information on the website, details outlined in the Proposal shall govern.
As long as our service providers and local representatives are acting within our authority and following instructions, we accept responsibility for their actions. However, we do not accept responsibility for the actions of drivers and/or pilots (airline pilots, boat captains, etc.) who are not directly contracted by us. We do not accept responsibility for any activities that are arranged by a third party. We also do not accept responsibility for losses that occur due to situations outside of our control (e.g. theft by an unknown). We do not accept responsibility for physical ailments including injury, illness, death, income loss during a trip, damage, expense, cost claims that result from fault of someone in the travel party, fault of a third party unconnected to the Company or any provider of the Services, or actions beyond our suppliers’ control.
The total value of our liability to you in respect of all losses that might arise under or in connection with your trip booked through us, whether by breach of contract, tort, or otherwise, shall not exceed the value of your booking including taxes. Furthermore, nothing in this Agreement shall limit or exclude our liability where such exclusion is not permitted under applicable law.
j. Clients’ Liability to Company; Other Client Obligations. Clients should confirm the types of vaccinations that are recommended prior to any trip to any applicable jurisdiction. We recommend, at a minimum, that all travelers receive a vaccination for Yellow Fever. The Client is responsible for receiving vaccinations at their own expense. In certain cases (including, but not limited to, any travel to the Amazon) Clients shall be required to demonstrate proof of vaccinations or provide a written waiver of refusal to the Company. It is also the responsibility of each Client to have a valid passport with appropriate visas and ample free pages. It should be noted that several countries require that your passport have at least two blank pages for a visa stamp and that your passport have at least 6 months of validity. If you are traveling to more countries on your trip you may need to have even more blank pages. If you are unsure about the number of pages needed we recommend calling your local passport office or applying for a new passport.
If you have existing medical conditions, disabilities, or dietary requirements, you are required to let us know prior to any booking so that we can plan your trip accordingly and prepare in case of an emergency. If you are diagnosed with a medical condition following booking but just prior to your trip you are also required to disclose such a diagnosis to us. We are not responsible for any refusal by any purveyor of transport who refuses service to you as a result of any medical condition or disability. Women who are at least 28 weeks pregnant at time of travel must have a signed doctor’s certificate confirming that they are able to travel safely. We are not liable for any costs, delays, or illness that may result from your failure to meet these requirements.
You and your travel party are responsible for your behavior and attitude. We and anyone we work with reserve the right to refuse service, booking, boarding, the right to travel, the right to continue travel or transport, accommodation or any other part of the trip if you or any member of your party is out of control, abusive, or under the influence of excessive alcohol or drugs. If we (or any third party affiliate of the Company) reasonably believe that you are in the possession of illegal drugs, are behaving violently, disruptively, dangerously or are otherwise acting in an irresponsible manner which presents a risk to others we also reserve the right to refuse service as we see fit in our sole discretion. In such cases, no refund or compensation will be paid and no costs or expenses for which you incur or are found responsible and liable will be covered or paid by the Company. Note that the behavior/acts describe above may subject you to a police investigation and may make you liable for any criminal offense in different foreign jurisdictions. You must fully cooperate with and follow any safety instructions or steps given by any guide or organization responsible for the activities you do during your trip. For some extreme sports or activities, the host organization may require you to sign a waiver form.
Although we will do everything in our power to ensure a safe and wonderful trip, accidents and problems can happen. If you experience any issues that are not immediately resolvable by the hotel or guide you are with, please contact your accompanying representative of the Company. And you can always reach us within Colombia, 24-hours a day, at +57 (316) 767-9917. We ask that you please do tell us issues as they arise so we can work to improve your trip. If you tell us afterwards we will be unable to help. With any medical emergency you should first notify your travel insurance company on their 24-hour emergency number. If you cannot reach them please let us know and we will work to reach them as soon as possible. In some cases we will take out additional medical insurance on your behalf. In case of emergency please let us know and we will contact the relevant authorities on your behalf.
It should be noted that the economy and terrain of certain foreign jurisdictions continue to see drastic changes. Not all places will follow a strict schedule and cultural differences may mean that the provision of Services will need to take into account of local customs and culture. We agree to use commercially reasonable efforts to ensure that the Services are being provided as close to what is described in the Proposal as possible. That being said, culture and mistakes at times win out and may cause delays or slight changes to tour plans. We ask that you have a positive attitude and take everything in stride as we promise a very memorable and fun trip in the end.
You are fully responsible for any and all damage to any third-party property that occurs during any of our trips. In addition, we may request that you pay us a security deposit that would be used to cover any such damage either by paying third party for outright losses caused by such damage or to refund our local service providers as needed.
Due to the current COVID-19 health emergency in many foreign jurisdictions, the availability of activities are subject to change without prior notice. If we cancel a trip due to a government order or inability of a service provider to offer the services advertised, we will offer you the option to reschedule the trip or provide a full credit towards future travel, based on the policies of the contracted service providers. If you are required to quarantine after starting your trip or are otherwise unable to complete the trip after starting it, we cannot guarantee a refund for any services not received.
Additionally, service providers are likely to have implemented biosecurity protocols and may require you to take a COVID-19 test and self-quarantine to protect the health of other guests and passengers. You may also be required to wear face masks and practice social distancing. If you fail to adhere to established protocols, service may be refused, in which case you would not be entitled to a refund.
k. Dissatisfaction and Complaints. If you feel that the service provided is not meeting your expectations please inform our local representative traveling with you immediately or call the owner of the Company Sam Holdren at +1 (602) 399-7433. We will use commercially reasonable efforts to find a satisfactory solution for your issue(s). Note that we believe that it is unreasonable to withhold a complaint until after your trip is completed and not allow us an opportunity to resolve any issues in person at the time any problem arises. If you still wish to file a complaint, you must send full details in writing to the Company within 30 days following your trip along with any relevant booking information. Please make sure your letter communicates any complaints to any local providers as well as to our representatives at Out in Colombia Travel with specificity. Failure to do this may mean that we may not be in a position to investigate any issues raised in your complaint. It should be noted that if you do not raise any issues in real time and allow us an opportunity to ameliorate the situation it may affect our ability to compensate you adequately, even if your complain has merit.
l. Insurance. Travel insurance is compulsory for all our travelers and should be taken out at the time of booking. At a minimum your travel insurance must provide cover against personal accident, death, medical expenses, emergency repatriation and personal liability, with a minimum coverage of US$50,000 in medical coverage and US$200,000 in emergency repatriation. We also strongly recommend it cover cancellation, cancel for any reason/change of mind if available in your area, curtailment and loss of luggage and personal effects. The Company shall not provide you with travelers’ insurance nor medical extraction unless it is specifically stated in the Proposal. You are responsible for fully insuring your trip with us and must make sure that all of the activities you will be doing are covered by your insurance election. At the time of booking we will provide you with recommendations for travel insurance companies. If you choose insurance services provided by your credit card, please check the terms. Many services only offer minimum coverage and have many excluded activities. Some insurers offer specific insurance related to cancellation, delay, and abandonment due to natural causes. You can purchase this insurance as a stand-alone policy or as an add-on to other policies.
9. NON-DISPARAGEMENT. Client covenants and agrees that Client shall not engage in any pattern of conduct that involves the making or publishing of written or oral statements or remarks (including, without limitation, the repetition or distribution of derogatory rumors, allegations, negative reports or comments) that are disparaging, deleterious or damaging to the integrity, reputation or good will of the Company or its respective management or products and services. Company covenants and agrees that Company shall not engage in any pattern of conduct that involves the making or publishing of written or oral statements or remarks (including, without limitation, the repetition or distribution of derogatory rumors, allegations, negative reports or comments) that are disparaging, deleterious or damaging to the integrity, reputation or good will of the Client or its respective management or products and services.
10. INDEPENDENT CONTRACTOR STATUS. The Company performs this Agreement as an independent contractor, not as an employee of the Client. Nothing in this Agreement is intended to construe the existence of a partnership, joint venture, or agency relationship between the Client and the Company.
11. CONFIDENTIALITY. The Company hereby agrees and undertakes that it shall not at any time (whether during or after the Term) directly or indirectly use or exploit for the Company’s own purpose or those of any other person, company, business entity, media organization or other organization whatsoever, any Confidential Information. The obligations contained in this Clause 11 shall not apply to: (i) any information or knowledge which may subsequently come into the public domain (but will apply to any Confidential Information relating to or connected with such information within the public domain); or (ii) any information which the Company is required to disclose in accordance with a specific order of a Court of competent jurisdiction provided that such information may be disclosed by the Company on a confidential basis to such party as is specified by such court order and to no other party.
a. Termination Notice. The Company may terminate this Agreement upon thirty (30) days written notice. The Client may terminate this Agreement and/or cancel any bookings at any time.
b. Payment of Compensation Following Termination. Client shall pay the Company all Service Fees owed pursuant to the cancellation terms outlined in Paragraph 8(g).
c. Common Law Rights. The rights of the Client under Clause 12 are without prejudice to any other rights that it might have at law to terminate the Agreement or to accept any breach of this Agreement on the part of Company as having brought the Agreement to an end. Any delay by the Client in exercising their rights to terminate shall not constitute a waiver of these rights.
13. FORCE MAJEURE. Except for the Client’s obligation to pay the Service Fees, neither Party shall be liable for any failure to perform its obligations under this Agreement if prevented from doing so by a cause or causes beyond its reasonable control, including without limitation, acts of God or public enemy, failure of suppliers to perform, fire, floods, storms, earthquakes, riots, strikes, war, and restraints of government.
14. INDEMNIFICATION. The Client agrees to indemnify, defend and hold harmless the Company and its officers, managers, members, employees, agents and affiliates from and against any claim, liability, obligation, loss, damage, assessment, judgment, cost and expense (including, without limitation, all the Company’s staff time, attorney’s, expert’s, and accountant’s fees and costs and expenses incurred in either investigating, preparing, defending against or prosecuting any litigation or claim, action, suit, proceeding or demand) of any kind or character (“Losses”) incurred by the Company arising out of or in any manner incident, relating or attributable to (i) the Company’s performance under this Agreement; (ii) any inaccuracy in any representation or breach of any warranty of the Client contained in this Agreement; (iii) any failure by the Client to perform or observe any covenant, agreement or condition to be performed or observed by it under this Agreement; or (iv) any active or passive negligence on the part of the Client.
a. Writing; Permitted Delivery Methods. Each Party giving or making any notice, request, demand, or other communication required or permitted by this Agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this Agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
b. Addresses. A party shall address notices under this Clause 15 to a Party at the following addresses:
Out in Colombia Travel
Toro International, LLC
4602 E Fremont Street
Phoenix, AZ 85042
If to the Client: Information included in first Proposal executed between the Parties.
c. Effectiveness. A notice is effective only if the party giving notice complies with subclauses (a) and (b).
16. GOVERNING LAW. This Agreement shall be interpreted by the laws of the State of Arizona without regard to conflict of law or choice of law issues.
17. ARBITRATION. All controversies and claims arising under or relating to this Agreement are to be resolved by arbitration in accordance with the rules of the American Arbitration Association before a panel of three arbitrators selected in accordance with those rules. The arbitration is to be conducted in Phoenix, Arizona. Each Party shall submit to any court of competent jurisdiction for purposes of the enforcement of any award, order or judgment. Any award, order or judgment pursuant to the arbitration is final and may be entered and enforced in any court of competent jurisdiction.
18. AMENDMENTS. No amendment to this agreement will be effective unless it is in writing and signed by a Party or its authorized representative.
19. DEFINITIONS. “Confidential Information” shall mean any confidential information (whether or not recorded in documentary form or on computer disk or tape or in photographic material or any other medium) of the Client which Company learns or which comes into their possession, custody or control in connection with the implementation of the terms of this Agreement.
20. ASSIGNMENT AND DELEGATION. Neither Party may assign any of its rights under this agreement, except with the prior written consent of the other Party, which consent shall not be unreasonably withheld.
21. SEVERABILITY. If any one or more of the provisions contained in this Agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this Agreement, but this Agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this Agreement to be unreasonable.
22. WAIVER. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement will be effective unless it is in writing and signed by the Party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
23. ENTIRE AGREEMENT. This Agreement constitutes the final agreement of the Parties. It is the complete and exclusive expression of the Parties’ agreement about the subject matter of this Agreement. All prior and contemporaneous communications, negotiations, and agreements between the Parties relating to the subject matter of this agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither Party was induced to enter this Agreement by, and neither Party is relying on, any statement, representation, warranty, or Agreement of the other Party except those set forth expressly in this Agreement. Except as set forth expressly in this Agreement, there are no conditions precedent to this Agreement’s effectiveness.
24. HEADINGS. The descriptive headings of the Clauses and subclauses of this Agreement are for convenience only, and do not affect this agreement’s construction or interpretation.