Effective starting: 1.2.2023
PaxFlow provides its service to you subject to the following terms
This “Software as a Service” Subscription Agreement (“Agreement“) is entered into on the date you (“Customer”) and PaxFlow ehf, Borgartún 27, Reykjavík. Iceland (“PaxFlow”) agrees to these terms).
PaxFlow provides a operation management solution to tours and activities operators. PaxFlow is offered as a cloud hosted software as a service solution to different types of tour operators ranging from daytour operators, excursion providers, and companies offering various types of experiences and activities. We are continuously developing and improving our solution to empower tour operators to streamline operations with automations and customer self service.
By using all or any part of the services described in this Agreement and/or by creating an account with PaxFlow (a “User Account”), you represent that you accept and will comply with all of the terms of this Agreement, including all documents, policies and supplemental terms referred to within it, which are incorporated into this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the terms of this Agreement, in which case “User” and “you” shall refer to such entity. Together, PaxFlow and the User will be referred to in this Agreement as the “Parties”.
Capitalised terms not otherwise defined in the Agreement shall have the meaning set out below:
User account: the account held by the customer
Users: those employees, agents and independent contractors of Customer who are authorised by Customer to use the Services
User Data: the personal data and information Users provide to PaxFlow and/or inputted by Customer into the Service for the purpose of creating an account for an User, but excluding the Customer Data and PaxFlow Data;
PaxFlow Data: means (i) such information or data provided by PaxFlow to Customer as part of the Services; (ii) any meta data extracted by PaxFlow from Customer’s use of the Services to be used to provide the Services; and (iii) any feedback or suggestions from Customer or Users to PaxFlow relating to the Services;
Customer Data: the data and information provided by Customer to PaxFlow and/or inputted by Customer, Users, or PaxFlow on Customer’s behalf for the purpose of using the Services or facilitating Customer’s use of the Services or data collected and processed by or for Customer through Customer’s use of the Services, but excluding PaxFlow Data and User Data;
Customer: Customer refers to a PaxFlow user who has a contractual relationship with PaxFlow for the use of the services.
End client: End client refers to the customer of a PaxFlow Customer, therefore the person who books an activity or tour via the Customer.
Confidential Information: information of a party that is proprietary or confidential and is either clearly labelled as such; identified as Confidential Information in clause 10; and/or a reasonable person would understand to be confidential or proprietary at the time of disclosure;
Business Day: any day which is not a Saturday, Sunday or statutory public holiday in Iceland
Business Hours: 9.00 am to 16:00 pm Greenwich mean time each Business Day;
Fees: means the Subscription Fees and any additional fees or expenses as set out in subscription plans
Inappropriate Content: content which (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or (f) causes damage or injury to any person or property;
Intellectual Property Rights: including without limitation, rights in patents, trademarks, service marks, trade names, other trade-identifying symbols and inventions, copyrights, design rights, database rights, rights in know-how, trade secrets and any other intellectual property rights arising anywhere in the world, whether registered or unregistered, and including applications for the grant of any such rights;
Services: means (i) use of the Software in accordance with this Agreement, (ii) use of PaxFlow Data; (iii) the provision of the Support Services
Software: the internal communications software applications provided by PaxFlow as part of the Services inclusive in the chosen plan.
Subscription Fees: the subscription fees payable by Customer to PaxFlow for the Customer Subscriptions, as set out in the chosen plan;
Subscription Term: means the Initial Subscription Term and any subsequent Renewal Periods;
Support Services: means the PaxFlow standard support services provided by PaxFlow in accordance with the Support Services Policy in respect of the Software, including any applicable Software maintenance upgrades;
Third-Party Services: means online applications and offline software products that are provided by third parties and interoperate with the Services;
Virus: any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the access to or operation, reliability or user experience of any computer software, hardware or network, telecommunications service, equipment or network or any other service or device, including worms, trojan horses, viruses and other similar things or devices.
2. User Account
2.1 PaxFlow shall provide the Services during the Subscription Term in accordance with the terms set out in this Agreement.
2.2. Each User shall keep a secure password for his use of the Services, that such password shall be changed frequently and that each User shall keep his password confidential.
2.3 Customer shall not access, store, distribute or transmit any Viruses, or any material, including without limitation Customer Data and the User Data, during the course of its use of the Services that:
2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.3.2 facilitates illegal activity; or
2.3.3 in a manner that is otherwise illegal or causes damage or injury to any person or property; and PaxFlow reserves the right, without liability or prejudice to its other rights to Customer, to disable Customer’s access to any material that breaches the provisions of this clause.
2.4 Customer shall not:
2.4.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
2.5. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.5.1 access all or any part of the Services in order to build a product or service which competes with the Services; or
2.5.2 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Users, or
2.5.3 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.
2.6 Customer shall use all reasonable endeavours to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify PaxFlow
3. The Services
3.1 PaxFlow shall use commercially reasonable endeavours to make the Services (excluding any Third Party Applications) available 24 hours a day, seven days a week and for at least 99.5 percent of the time, excluding:
3.1.1 any unplanned downtime provided to Customer on the site
3.1.2 congestion whereby high traffic levels result in service disruption, caused by the Customer exceeding any agreed capacity;
3.1.3 issues resulting from problems caused by Customer’s failure to follow agreed procedures, or caused by unauthorised changes to the Services by the Customer;
3.1.4 material breach by Customer of the terms of this Agreement; or
3.1.5 a force majeure event.
3.2 PaxFlow will, as part of the Services, provide Customers with PaxFlow’s standard Support Services during Business Hours.
4. Fees and Payments
4.1 Customers shall pay the Subscription Fees and any additional applicable fees related to the Services chosen in the subscription plan. Depending on chosen subscription plan PaxFlow may invoice Customers for the Subscription Fees monthly / yearly in advance on or after the Effective Date and thereafter on each anniversary of the initial invoice date for the duration of the Subscription Term.
4.2 Customers must keep a valid payment method on file with PaxFlow to pay for all incurred and recurring Fees. PaxFlow will charge applicable Fees to any valid payment method that you authorize within your User Account, and PaxFlow will continue to charge the Authorized Payment Method for applicable Fees until all outstanding Fees have been paid in full
4.3 PaxFlow may offer you a choice of how to pay the Subscription Fees. If you choose to be invoiced by PaxFlow for the Fees on a monthly basis;
(a) PaxFlow shall send an invoice for the Fees to you at the beginning of each month, based on the chosen Subscription Plan and the booking and passenger volume.
(b) For the avoidance of doubt, if any booking is cancelled (in accordance with the applicable cancellation policy) after the corresponding invoice has been raised, the Service Fees in respect of such booking shall still be payable by you.
(c) Each invoice submitted by PaxFlow shall be paid in full by you by credit card. You are required to submit your credit card details before being invoiced by PaxFlow.
4.4 If PaxFlow has not received payment for any invoices by the due dates and without prejudice to any other rights and remedies of PaxFlow PaxFlow may:
4.4.1 by giving thirty (30) Business Days prior written notice to Customer, without liability to Customer, disable Customer’s password, account and access to all or part of the Services and PaxFlow shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
4.5 All amounts and Fees stated or referred to in this Agreement are non-refundable and are exclusive of all Taxes. Customers shall be solely responsible for, and paying all applicable Taxes relating to this Agreement, and the use or access to the Services.
4.6 PaxFlow shall be entitled to increase the fees or add new fees for extended services for Subscriptions with effect from the start of each Renewal Period and the Agreement shall be deemed to have been amended accordingly.
5. Customer Obligations
5.1 Customer shall:
5.1.1 provide all necessary information as may be reasonably required by PaxFlow in order to provide the Services.
5.1.2 Customer shall be responsible for ensuring that only registered users have access to software services in accordance with the provisions of this Agreement. In the event of damage in connection with unauthorized access, the customer shall be liable for that damage.
5.1.3 not include any Inappropriate Content or Viruses or any other information or material, any part of which, or the accessing of which or use of which would be a criminal offense or otherwise unlawful including the breach of any Intellectual Property Rights of any other party. PaxFlow reserves the right, but is not obliged, to remove such content from where, in its sole and reasonable discretion, PaxFlow suspects such content to be Inappropriate Content, upon notice to Customer;
5.1.4 Customers are also not permitted to:
(a) attempt to copy, modify, transcribe, create derivative works, frame, reflect, publish, download, publish,
transfer or distribute all or any part of the Software in any form or medium, or by
in any way; or
(b) attempt to de-compile, disassemble, reverse engineer or
otherwise modify software services so that human intelligence can detect their functionality; or
(c) gain access to all or any part of the Software Services for the purpose of making any other product; or
software services that are in competition with these software services.
5.1.5 The Customer shall do everything in its power to prevent unauthorized access to or use of the software service. In all cases, the customer must notify the service provider immediately if he occurs was for unauthorized access or use.
6. Force Majeure
PaxFlow shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
7. Customer Data
7.1 Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, appropriateness, completeness, reliability, integrity, accuracy and quality of the Customer Data and User Data.
7.2 Customer acknowledges that responsibility for all Customer Data and any communications with others or between Users using the Services is the sole and exclusive responsibility of Customer and that PaxFlow will not be held responsible in any way for any copyright infringement or violation, or the violation of any other person’s rights or the violation of any laws, including but not limited to infringement or misappropriation of copyright, trademark or other property right of any person or entity, arising or relating to Customer Data. Customer agrees to indemnify and hold harmless PaxFlow from and against all losses, damages, actions or causes of action, suits, claims, demands, penalties and interest arising in connection with or out of any such Customer Data, to the extent not caused by PaxFlow’s wilful misconduct.
7.3 Customer acknowledges that PaxFlow is not obliged to edit, moderate or modify Customer Data (including third party information). However, PaxFlow reserves the right to remove any Customer Data (or third party information) which PaxFlow reasonably believes breaches any laws or regulations or any third party’s rights or this Agreement and/or is deemed Inappropriate Content. PaxFlow will notify Customer if it removes any Customer Data (or third party information) in accordance with this clause. PaxFlow disclaims all liability of any kind in respect of Customer Data, third party information and any other material which can be accessed using the Services. PaxFlow expressly disclaims all liability for any fraud committed in connection with the Services.
8. Data Protection
8.1 PaxFlow acknowledges that the Customer is acting as a data controller in respect of any User Data (or Customer Data containing personal data). To the extent that PaxFlow has access to and processes any such User Data (or Customer Data containing personal data) in the provision of the Services, PaxFlow shall use reasonable endeavours to:
8.1.1 keep all personal data of Customer and Customer’s Users secure and have in place appropriate technical and organisational measures to ensure an appropriate level of security for the processing of such personal data of Customer and Customer’s Users and to protect such personal data of Customer and Customer’s Users against unauthorised or unlawful processing or accidental loss, destruction or damage;
8.1.2 preserve the integrity of such personal data of Customer and Customer’s Users and to prevent the loss or corruption of the personal data of Customer and Customer’s Users;
8.1.3 only process such personal data of Customer and Customer’s Users in accordance with the instructions and directions of the Customer and Customer’s Authorised Users; and
8.1.4 immediately inform Customer of any security breach, potential security breach, loss, data leak, or unauthorised disclosure with respect to any personal data (collectively, “Data Breach”), investigate the Data Breach, take all necessary steps to close the cause of the Data Breach and prevent recurrence (to the extent such cause is within the control of PaxFlow; and
8.1.5 provides such reasonable assistance and information to the Customer as it may reasonably require to allow the Customer to comply with its obligations under the General Data Protection Regulation (EU) 2016 / 679.
8.2 For the purposes of this Clause 9 the terms “data controller”, “personal data”, “process” and “processing” shall have the meaning set out in the General Data Protection Regulation (EU) 2016 / 679.
8.3 PaxFlow shall comply at all times with all applicable privacy laws.
9.1 The Parties are bound by confidentiality regarding information that they may become aware of as a result of its implementation of this agreement. Confidential information includes all information marked as such or that information which is exclusive. Confidential information also includes information related to the service provider’s system, the results of any tests on the system and the customer data stored in the system.
9.2 The duty of confidentiality extends to all employees of both parties. The duty of confidentiality shall remain in force for as long as possible contract period and also after the end of this contract. The confidentiality of the parties’ employees shall also retain their validity even if they resign.
10. Intellectual property rights
10.1 PaxFlow’s intellectual property rights in or arising out of the Services shall at all times be the property of PaxFlow. Nothing in this Agreement shall be regarded as the assignment of such intellectual property rights to you.
10.2 Any intellectual property rights in or arising out of the Services that may be owned by third parties shall at all times remain with such third parties.
11. Third Party Services
11.1 PaxFlow may recommend/ provide you with access to, and/or enable your use of third party software, applications, products, services or website links (collectively, “Third Party Services”). Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the provider of the applicable Third Party Services (each, a “Third Party Provider”). In addition to this Agreement, you also agree to be bound by the additional terms applicable to any Third Party Services you purchase from, or that are provided by, Third Party Providers.
11.2 Any use by you of Third Party Services offered is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and privacy policies applicable to such Third Party Services before using them. In some instances, PaxFlow may receive a revenue share from Third Party Providers whose Third Party Services you use. PaxFlow does not provide any warranties or make representations to you with respect to any Third Party Services. You acknowledge that PaxFlow has no control over Third Party Services and shall not be responsible or liable to you or anyone else for such Third Party Services.
11.3 The availability of Third Party Services through the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with PaxFlow. PaxFlow does not guarantee the availability of Third Party Services and you acknowledge that PaxFlow may disable access to any Third Party Services at any time in its sole discretion and without notice to you. PaxFlow is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service.
11.4 If you install or enable a Third Party Service for use with the Services, you grant PaxFlow permission to allow the applicable Third Party Provider to access your data and other materials and to take any other actions as required for the integration of the Third Party Service with the Service, and any exchange of data or other materials or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. PaxFlow is not responsible for any disclosure, modification or deletion of your data or other materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other materials.
11.5 The relationship between you and any Third Party Provider is solely and strictly between you and such Third Party Provider, and PaxFlow has no obligation to intervene in any dispute arising between you and a Third Party Provider.
11.6 Under no circumstances shall PaxFlow be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or any other damages or loss whatsoever, that result from any Third Party Services and/or your contractual relationship with any Third Party Provider. These limitations shall apply even if PaxFlow has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
11.7 You agree to indemnify and hold PaxFlow, its affiliates, respective officers, directors and employees harmless from any claim or demand, including reasonable legal’ fees, arising out of your use of a Third Party Service and/or your relationship with a Third Party Provider.
12. Limitation of liability
12.1 All usage of the Services is at your own risk.
12.2 Neither PaxFlow nor its affiliates, nor any of their respective officers, directors, members, shareholders, employees, agents, third party content providers, or licensors warrant that the Services or the Software will be uninterrupted, timely, secure or error-free, nor do they provide any warranty as to (a) the results that may be obtained from the use of any Service or the Software including their accuracy, reliability, quality, adequacy, timeliness or authenticity; or (b) the accuracy, reliability, quality, adequacy, timeliness or authenticity of any advertisements, information, services, products, merchandise and/or other material that is purchased through or provided via the Services. The Services and the Software are provided on an “as is” and “as available” basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, non-infringement or fitness for a particular purpose.
12.3 In no event will PaxFlow, or any person or entity involved in creating, producing or distributing the Services or Software, be liable to you or to any other person or entity for any indirect, incidental, special, punitive or consequential damages, or loss of profit or revenue arising out of the use of or inability to use the Services or Software. This disclaimer of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorised access to, alteration of, or use of record, whether for breach of contract, tortious behaviour, negligence, or under any other cause of action regardless of whether PaxFlow had notice of the cause or such cause was foreseeable. These disclaimers and limitations shall apply even in the event of a fundamental or material breach or a breach of the fundamental or material terms of this Agreement. To the maximum extent permitted by law, PaxFlow’s liability to you under this Agreement shall be limited to the Service Fees paid by you to PaxFlow in the six (6) months immediately preceding the date the cause of action arose.
12.4 You agree to indemnify and hold harmless PaxFlow, its affiliates, respective officers, directors and employees, from and against any and all claims of third parties relating to, arising out of or resulting from use of the Services and Software, other than claims arising from gross negligence or wilful misconduct of PaxFlow, its affiliates, respective officers, directors and/or employees.
12.5 By using any Service and agreeing to this Agreement, you acknowledge that you have not relied on any prior representation, warranty or other assurance made by or on behalf of PaxFlow, and you waive all rights and remedies which might otherwise be available to you in respect of such representation, warranty or other assurance, provided that nothing in this Section shall exclude or limit any liability for fraud.
13.1 Without affecting any other right or remedy available to it, either Party may terminate this Agreement at any time. If you wish to terminate this Agreement, you must do so by notifying us through your User Account. Termination period is subject to terms of the current subscription plan (monthly/yearly/other). PaxFlow may suspend and/or terminate any one or more of the Services at any time without notice.
13.2 PaxFlow may terminate the Services with immediate effect by giving written notice to you if:
13.2.1 you commit a material breach of any of the provisions of this Agreement; or
13.2.2 you become insolvent, cease to trade or have a liquidator, receiver, manager, administrator or administrative receiver or similar officer appointed in respect of the whole or part of your business, or enter into any arrangement or composition with your creditors, or are made bankrupt, or undergo a similar or analogous event in any jurisdiction;
13.2.3 you fail to pay any amount due and payable pursuant to Section 5, after PaxFlow has sent you a notification of payment failure; or
13.2.4 if you object to the use of any sub-processor according to the Data Processing Agreement.
13.3 Upon termination, PaxFlow may in its sole discretion close your User Account, delete any existing data from your User Account, and refuse any future submission of data from you.
13.4 Upon termination, all unpaid Fees shall become due and payable.
14.1 Waiver. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
14.2 Invalid provisions. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
14.3 Governing Law and Jurisdiction. All disputes arising out of or in connection with this Agreement shall be governed by Icelandic law and shall apply to the interpretation of this Agreement and its Annexes. If conciliation proves to be ineffective, a case shall be brought before the Reykjavík District Court.
14.4 Third Party Rights. A person who is not a party to this Agreement has no rights to enforce, or to enjoy the benefit of, any term of this Agreement.
14.5 Subcontracting and Assignment. PaxFlow may at any time assign, subcontract, delegate or deal in any other manner with any or all its rights and obligations related to the Services and this Agreement.
14.5.1 You shall not assign, transfer, delegate or deal in any other manner with any of its rights and obligations related to the Services and this Agreement without the prior written consent of PxFlow, to be given or withheld in PaxFlow’s sole discretion.
14.6 Notifications. All notifications of legal notices or service of legal process are to be given under this Agreement in English in writing to the address as shall be given by either Party. All other notifications given in connection with this agreement may be in writing via email: PaxFlow’s email address is email@example.com.
14.7 Variations. Save as otherwise expressly stated in this Agreement, this Agreement may only be modified or varied in writing executed by duly authorised representatives of both parties.
14.8 Survival. In addition to those provisions which by their nature are intended to survive any termination of this Agreement, clauses 9, 10, 11, 12, 13, 14.3 and 15, of this Agreement shall survive such termination or expiration of this Agreement.
14.9 Amendments to Agreement. PaxFlow may update or replace this agreement without prior notice to you and at our sole discretion at any time by posting a new version to the PaxFlow website. Your continued access or use of the services and/or Software indicates your acceptance of the current published version of the agreement.
14.9 Export Control. The Service, Software and other PaxFlow materials are subject to the export control laws of various countries, including without limitation the laws of the United States and the UK. Customer agrees that it will not submit the Service or other PaxFlow materials to any government agency for licensing consideration or other regulatory approval without the prior written consent of PaxFlow, and will not export the Service, Software, Data and materials to countries, persons or entities prohibited by such laws. Customers shall also be responsible for complying with all applicable governmental regulations of the country where Customer is registered, and any foreign countries with respect to the use of the Service or other PaxFlow materials by Customer and its Users. Customers will not engage in any activity that would cause PaxFlow to be in violation of any such export control laws and regulations.