HomeMy WebLinkAboutResolution - 2023-R0348 - Flixbus/Greyhound Ticket Reseller Agreement - 07/11/2023Resolution 2023-R0348
Item No. 5.15
July 11, 2023
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute
for and on behalf of the City of Lubbock, a Ticket Reseller Agreement and related documents,
by and between the City of Lubbock and Flixbus, Inc. Said agreement and ancillary
agreements and instruments are attached hereto and incorporated in this resolution as if fully
set forth herein and shall be included in the minutes of the City Council.
istant City Attorney
ccdocs IIIRES.Agrmt-Flixbus, Inc.
June 26, 2023
Resolution 2023-R0348
Ticket Reseller
Agreement
THIS TICKETSELLING AGREEMENT (this "Agreement") is made e f f e c t i v e as of January 18, 2023 ("Effective
Date") by and between The City of lubbock, with its principal place of business located at 1314 Avenue K. Lubbock,
TX 79401(the "Reseller"), with the agency number assigned as #4909 (the"Agency No:') and FlixBus Inc. with
its principal place of business located at 340 South Lemon Ave #8045, Walnut, CA 91789, along with its
subsidiaries and affiliates ("FlixBus"). FlixBus and the Reseller may be referred to collectively as "Parties" or
individually as a "Party."
Object of the Agreement
FlixBus contracts with licensed motor carriers to operate schedules which are sold by FlixBus. The ticket sales (the
"Bookings") are made on a platform hosted at the domain name under (the "Platform"). FlixBus
desires to appoint the Reseller as its non-exclusive agent to make Bookings on behalf of customers, and the Reseller
desires to accept such appointment pursuant to the terms below.
i. Engagement
1.1. FlixBus hereby engages the Reseller as its non-exclusive agent at a facility located at 801 Broadway Avenue ,
Lubbock, TX 79401 (the "Location") to make Bookings on its behalf from the Location and the Reseller accepts such
appointment pursuant to the terms herein.
1.2. The Reseller is hereby authorized to make and complete Bookings on the Platform for customers from the
Location (the"Services") in accordance with the guidelines, rules, and instructions of FlixBus provided to the Reseller
from time to time (the "Terms & Conditions") and the terms and conditions contained herein, including Exhibits "A"
and "B" attached hereto. The Reseller hereby accepts such appointment and agrees to perform the Services pursuant
thereto. The Terms & Conditions, as they may be modified from time to time in accordance with the terms thereof,
are hereby incorporated in and made a part of this Agreement and all references to this Agreement shall include the
Terms & Conditions.
1.3. Except as expressly permitted, the Reseller shall not charge customers any fees or other charges in addition to
the cost of the applicable Booking as set by FlixBus (the "Reseller Rate").
1.4. The Reseller shall provide and shall be responsible for its own administrative and other requirements in
connection with the performance of the Services and its obligations hereunder including its accounting, tax
reporting (including collection of sales tax and remit such tax to the applicable tax authorities) and customer
support.
1.5. Reseller shall not appoint any persons or entities as its sub-agents, subcontractors, distributors, franchisees or
other intermediaries (collectively, "Sub-Agents") in connection with the performance of the Services or observance
of this Agreement without the written consent of FlixBus; provided that if FlixBus provides its consent, the Reseller
shall remain responsible for the observance and performance of the Agreement, shall ensure the compliance by the
Sub-Agents and shall be directly liable to FlixBus for any breach by its Sub-Agents of any of the obligations in this
Agreement.
1.6. The Reseller must make Bookings exclusively under its Agency No. and not any other agency number and shall
treat the login credentials and other information provided by FlixBus as confidential.
1.7. The Reseller shall be responsible and liable for all Bookings made under its Agency No. or otherwise made by
or on behalf of the Reseller.
2. Obligations of the Reseller
The Reseller undertakes:
LIMITED SHARING
2.1. to abide by the Terms & Conditions, including with respect to limitations on liability, indemnification,
trademarks and confidentiality;
2.2. to provide at all times a working computer with reliable internet access, a current internet browser, and a printer
in the Reseller;
2.3. to provide FlixBus with one monitored and functioning e-mail address for registering the employees or
representatives who are authorized to make Bookings and for receiving information about the products and services
of FlixBus. In addition, the Reseller shall specify the telephone number of the authorized person of the Reseller;
2.4. to ensure that the Reseller representatives provide a stellar level of customer service and provide the Services
in accordance with all requirements, both legal and contractual;
2.5. to provide the customers (a) an official ticket of FlixBus for boarding, (b) a receipt as proof of purchase, and (c)
upon request, a copy of the Terms & Conditions for the Booking;
2.6. to proactively and without any request by FlixBus inform FlixBus of any special requests or other needs relating
to the customers that are related to the transportation services rendered by FlixBus, including, without limitation,
disability and luggage;
2.7. to offer customers all the payment methods available to the Reseller in addition to cash payment;
2.8. to ensure that all personal information related to customers is contained in the Platform only and that Reseller does not
maintain or disclose such data elsewhere and complies with all applicable data privacy regulations;
2.9. to maintain current and valid registrations, licenses, and/or permits as required by local, state and federal law;
2.10. to always process personal data in accordance with applicable law;
2.11. to inform FlixBus immediately in writing about any changes of the Reseller's good standing under any
applicable laws and regulations and any changes of its corporate form or address;
2.12. to provide FlixBus with all required documents in support of the Services provided on behalf of FlixBus and
keep and maintain records of its activities and Bookings pursuant to this Agreement;
2.13. to provide and maintain a suitable sign, where allowed, approved by FlixBus designating the Reseller as a ticket
agent for FlixBus;
2.14. to not discriminate against any person based on race, color, national origin, or any other protected category
in providing and access to services; and
2.15. to report to FlixBus any complaints made against Reseller or any of Reseller's employees related to providing
the Services.
3. Representations, Warranties and Covenants of the Reseller
The Reseller represents, warrants and covenants to FlixBus that:
3.1. it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted
under this Agreement and to perform its obligations under this Agreement;
3.2. when executed and delivered by each of FlixBus and the Reseller, this Agreement will constitute the legal, valid
and binding obligation of the Reseller, enforceable against the Reseller in accordance with its terms; and
3.3. it is in compliance with all laws, rules and regulations applicable to this Agreement and the operation of its
business and shall at all times comply with all laws, rules and regulations, including but not limited to Occupational
Safety and Health Administration regulations, and at its own expense, obtain and maintain all certifications,
credentials, authorizations, licenses, and permits necessary to conduct that portion of its business relating to the
performance of its obligations under this Agreement.
4. Obligations of FlixBus
FlixBus undertakes to provide the Reseller with the necessary login credentials for the Platform and to provide
LIMITED SHARING
support to the Reseller in connection with or incidental to the Services.
5. Rights of FlixBus
FlixBus reserves the right in its sole discretion to appoint other sales agencies in the same geographic area as the
Reseller, and to provide special offers to customers and to exclusively or non-exclusively promote or otherwise sell
transportation services to customers through any other distribution channels.
6. Trademarks
This Agreement does not grant either Party the right to use the other Party's or their affiliates' trademarks except
as setout herein as necessary to perform the Services. Nothing herein shall grant any rights to use or ownership to
the Reseller for any intellectual property of FlixBus.
7. Accounting and Payment
7.1. For each Booking, FlixBus shall pay the Reseller a commission equal to ten 10% of the Gross Sales Revenue
(the "Commission"). "Gross Sales Revenue" means the Reseller Rate collected by the Reseller for each Booking,
including any applicable sales tax, service fee, booking fees or other ancillary fees and net of any discount, all
whether charged by Reseller or FlixBus and shall not include any amounts that are refunded to a customer for any
reason. FlixBus may offer a higher commission for limited periods as a special reward or incentive.
7.2. FlixBus will provide the Reseller with access to FlixBus' Agency Portal (the "Agency Portal"). In the Agency
Portal, FlixBus will account for the sales revenues for the Bookings by the Reseller on a monthly basis and shall
provide a daily list of all Bookings generated by the Agency No. of the Reseller.
7.3. FlixBus will provide a monthly statement of account via FlixBus' Agency Portal to the Reseller following the end
of each month (the "Settlement Statement"). The Settlement Statement will set forth the total sales revenues
collected in a calendar month, and the settlement amount after deduction ofthe Commissions earned by the Reseller
(the "Settlement Amount"). If a Booking is refunded after the sales revenue for such Booking has been accounted,
FlixBus shall be entitled to a credit for the refunded Booking and the Commission previously paid to the Reseller
(the "Unearned Commission") in the next settlement cycle. The revenue collected by the Reseller for Bookings shall
be kept separately from the other assets of the Reseller and shall be held in trust on behalf of FlixBus.
7.4. The Reseller must indicate its preferred method of remitting payment to FlixBus in the registration form,
choosing from the following options. Payment is due by Reseller of the total Settlement Amount within 7 days after
receipt of the Settlement Statement.
A) Monthly Bank Transfer: The Reseller will pay the Settlement Amount via bank transfer to the FlixBus bank
account provided by FlixBus.
B) Direct Payer: The Reseller will pay the full value of each Booking via Credit Card directly during the purchase
procedure on the FlixBus booking platform with the Agency credentials. The Reseller will collectthe Booking amount
from the customer, either in cash or any other allowed payment method. Once per month, FlixBus will transfer the
Commission earned during the prior month to the bank account provided by the Reseller in the self-disclosure.
FlixBus reserves the right to withhold the payment until the accumulated amount due has reached at least $100.
C) POS Device: The Reseller will be provided with a POS device that will enable payments both via cash and credit
card. When an order is paid in cash, the revenues will be booked on the Reseller account and billed monthly, to be
paid via Bank Transfer. When an order is paid with credit card, the revenues will go directly to Flixbus and won't be
in the monthly Settlement Amount.
7.5. The Reseller is not allowed to process cashback refunds for orders that were not originally generated by the
same Reseller. The Reseller will be able to identify their own orders by looking for the order ID in the Booking Report
provided to them via Flix Agency Portal. In case the Reseller will process a cashback refund for an order performed
by an end customer or another Reseller, Flix will not authorize the reimbursement to the Reseller.
7.6. The balance of any amounts due shall be deemed to be satisfied and finally settled unless the Reseller objects
in good faith to such transaction in writing to FlixBus within 30 days after receipt of the Settlement Statement.
7.7. If any portion of the Settlement Amount is past due for more than 15 days, FlixBus may terminate the Reseller
LIMITED SHARING
Agreement. FlixBus may commission debt collection agencies to collect any default payment at the Reseller's cost
and expense.
7.8. A complete and accurate Internal Revenue Service Form W-9 and a Registration Form must be completed by
the Reseller and the Reseller may not provide any Services until it has provided a complete and accurate form W-9.
S. Term of the Agreement; Termination
8.1.The term of this Agreement shall begin on January 18, 2023: and shall continue unless and until terminated as
provided herein or applicable law (the "Term").
8.2. Either Party may terminate the Agreement without cause upon 30 days' advance written notice to the other
Party.
83. Either Party may terminate the Agreement for cause, effective immediately upon written notice to the other
Party."Cause" shall include failure to remit any monies due or any other breach of this Agreement which is not
cured within 5 days of notice. Notice shall not be required prior to termination for failure to pay timely.
8.4. Any provision of this Agreement which expressly or by implication is intended to come into or continue in force
on or after termination of this Agreement shall remain in full force and effect, including without limitation, the
payment obligations of the Reseller, which shall survive until all payments due to FlixBus have been paid in full.
9. Indemni�cation
THE RESELLER UNDERTAKES TO INDEMNIFY FLIXBUS FOR THIRD PARTY CLAIMS AS SET FORTH HEREIN. IT IS
IMPORTANTTHAT YOU READ AND UNDERSTAND THESE PROVISIONS PRIOR TO SIGNING THIS AGREEMENT.
To the extent permitted by law, Reseller shall hold harmless FlixBus, its parent company, affiliates, subsidiaries,
officers, directors, shareholders, employees, lenders, successors, and assigns (the "FlixBus Parties") from and against
any and all losses, claims, demands, actions, causes of action, costs and expenses (including, without limitation,
reasonable attorneys' fees) related to the services contemplated and/or provided by Reseller arising out of this
Agreement, discrimination against passengers, claims relating to injury, death or damage, including breach of data
privacy obligations, personal injuries and to property and ticket sales when caused by Reseller or Reseller's employees,
agents, contractors, subcontractors, invitees, or licensees, unless the injury, death or damage is caused by the sole
negligence of FlixBus. Such indemnity shall survive any termination of this Agreement. Reseller further agrees to
indemnify and hold harmless FlixBus from any and all claims that Reseller or any of its employees, contractors,
subcontractors or representatives is an employee of FlixBus and shall reimburse FlixBus for any and all damages and
expenses associated with such claims including attorney's fees and costs. All indemnities shall survive any termination
of this Agreement
10. Independent Contractor Status
The Reseller is an independent contractor and neither the Reseller nor its employees, contractors, or Sub-Agents
are, or will be deemed FlixBus' employees. The Parties agree that this Agreement creates an independent contractor
relationship, not an employment relationship. As such, neither the Reseller nor FlixBus will have the right to direct or
control the day-to-day work or the terms and conditions of employment of the other Party's employees. Neither
Party is, nor shall claim to be, a legal agent, representative, partner, or employee of the other and neither shall have
the right or authority to contract in the name of the other, nor shall it assume or create any obligations, debts,
accounts, or liabilities for the other.
il. Severability
If any provision of this Agreement is or becomes ineffective or invalid, this shall not impair the effectiveness of the
remaining provisions. The ineffective or invalid provision shall be replaced by mutual consent with an effective
provision which comes closest to the commercial purpose intended by the ineffective or invalid provision.
12. Entire Agreement; Amendment
The Agreement (including each item incorporated by reference) constitutes the entire agreement between the
Parties and supersedes and extinguishes all previous drafts, agreements, promises, assurances, warranties,
LIMITED SHARING
representations, and understandings between them, whether written or oral, relating to the subject matter hereof.
Any amendment or modification of this Agreement shall be effective if it is in writing and signed by both Parties
except that the Terms & Conditions may be amended or modified pursuant to the terms set forth therein.
13. Governing Law; Arbitration
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation
(including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of the
State of Texas without reference to its conflict of law rules. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be filed in a court of competent jurisdiction in Lubbock, Texas. In any
such dispute, the prevailing party shall be entitled to recover all its fees and expenses.
14. Notice
Any notice under this Agreement shall be in writing and delivered by United States Certified Mail, Return Receipt
Requested, postage prepaid or email with receipt confirmation. Such notice shall be deemed to have been received
three (3) days after deposited in the United States Mail.
15. Force Majeure.
Neither party shall be liable for any delays in performing its obligations hereunder (except for the obligation to pay
money) if such delays arise, directly or indirectly, out of causes beyond the control of such party, including without
limitation public disturbances, pandemics, fires or acts of God.
16. Assignment.
Any rights and/or obligations arising from this Agreement may be assigned or transferred (including by operation
of law) wholly or partly to third parties by the Reseller only with the prior written consent of FlixBus, which consent
shall be in FlixBus' sole discretion. If the Reseller is sold or otherwise undergoes a change of control, the rights and
obligations arising from this Agreement shall not pass to the acquirer unless and until FlixBus has given its prior
written consent, which consent shall be in FlixBus' sole discretion.
17. Code of Conduct
Reseller agrees to abide by and conduct itself and to ensure that its representatives abide by and conduct
themselves in accordance with the FlixBus code of conduct, which may be found at the link below and may be
amended from time-to-time: https://�lobal.flixbus.com/companv/partners/code-of-conduct
18.Insurance.
Reseller shall maintain at its sole cost and expense the following insurance coverage. These requirements shall be
in addition to all coverage required by law or regulation.
a. Commercial general liability Insurance, including, but not limited to, coverage for contractual liability; and
b. Workers' compensation and employers' liability insurance meeting all statutory limits covering all employees
involved with the work or services under this Agreement.
The required coverage shall carry limits of liability of not less than $500,000.00 per occurrence. Such policies shall (a)
be written by able and solvent insurance companies, fully licensed to do business in the states where the Reseller is
operating with an A.M. Best Company rating of "A" or better and with a size rating of not less than "VI"; (b) have the
premiums payable at the sole cost and expense of Reseller with FlixBus named as an additional insured; (c) provide at
least 30 days' written notice to FlixBus priorto cancellation, non-renewal or material change in coverage or amendment;
(d) provide that such insurance is primary and shall be without contribution from any similar insurance obtained or
maintained by FlixBus; (e) waive all rights of subrogation against FlixBus; (fl be written on an "occurrence" basis; and
(g) satisfy all applicable co-insurance requirements. Prior to the commencement of this Agreement, Reseller shall
LIMITED SHARING
provide FlixBus with certificates of insurance evidencing the insurance coverages required hereinabove and Reseller
shall furnish FlixBus with a new certificate of insurance upon each policy renewal.
Reseller acknowledges that the above minimum insurance requirements stipulated by FlixBus shall not be deemed to
be a recommendation as to the appropriate level of insurance for Reseller's business. Furthermore, such insurance
coverage shall in no way serve to limit Reseller`s liability to FlixBus or to any third party.
19. Data Ownership, Confidentiality and Privacy.
All data pertaining or relating in any way to customers shall be the sole and exclusive property of FlixBus and Reseller
shall have no right of use or ownership of such information. Reseller shall always comply with all data privacy policies
and procedures of Flix6us and shall not maintain in any form any customer data including but not limited to data
related to a customer's identity and/or purchase. Reseller shall also comply with all rules of use of the website of
FlixBus and its affiliates including but not limited to those found at www.flixbus.com and www.�revhound.com.
Each Party will protect, and will ensure that its employees, representatives, and agents protect confidential
information to prevent the unauthorized use, dissemination, disclosure, alteration, destruction, or publication
thereof. "Confidential Information" shall include the terms of this Agreement and any and all information related to
the Bookings, customers and potential customers. A Party may disclose Confidential Information only to those of its
personnel, agent(s) or contractor(s) who have a need to know and who are under an obligation of confidentiality at
least as restrictive as that contained herein and if such disclosure is in compliance with applicable law. Each such
recipient of Confidential Information will be advised of the obligations under this Agreement. Confidential
Information received may be used only to fulfill the purposes of the Agreement. The foregoing confidentiality
obligations will not apply to information that: (i) is already known prior to disclosure through no fault or breach on
the part of disclosing Party; (ii) is or becomes a matter of public knowledge through no fault or breach of disclosing
Party; (iii) is rightfully received without a duty of confidentiality from a third party who has the right to transfer or
disclose it; (iv) is independently developed by a Party without reliance upon any Confidential Information; or (v) is
disclosed by operation of law.
Reseller acknowledges that during the Term of this Agreement, Reseller may become familiar with "personal
information" or "personal data" (jointly "Client Personal Data") as defined under applicable privacy laws currently
in effect or promulgated hereinafter ("Data Privacy Laws"). Notwithstanding the foregoing, any and all data
regarding customer(s) is the property of FlixBus and shall be included in the definition of Client Personal Data.
Reseller is permitted to use Client Personal Data to perform the Services outlined herein and for no other purpose.
Reseller shall act as a Contractor, Service Provider, or Processor, as those terms are defined under applicable data
protection laws. Reseller shall have no right to Client Personal Data and Reseller`s collection of Client Personal Data
shall not constitute a grant of license or a transfer of rights to the Client Personal Data. Reseller is prohibited from
(a) selling or sharing Client Personal Data; (b) retaining, using, or disclosing Client Personal Data; (c) marketing or
commercially exploiting Client Personal Data; (d) disclosing Client Personal Data for a commercial purpose; or (e)
combining Client Personal Data received from or on behalf of Client with personal information Reseller receives from,
or on behalf of, another person or business entity from its own interactions with a customer. Upon termination or
expiration of this Agreement, Reseller shall delete or return, at Flix Bus` request, all Client Personal Data. Reseller
shall immediately notify Flix Bus in writing of any breach of the provisions or violation of any Data Privacy Laws
related to Client's Personal Data.
Any external communications, including for public relations, is subject to approval of both Parties prior to disclosure.
All appropriate requests for disclosure must therefore be approved without exceptions by both Parties' public
relations departments in advance. The Parties agree to notify the other immediately if it becomes aware of any
unauthorized disclosure or use of the Confidential Information.
If Reseller is presented with a request for documents by an administrative agency, a discovery request, a court order,
or a subpoena for any records, data or documents which are the Confidential Information of the FlixBus or that
contain Client Personal Data, Reseller shall immediately give written notice to FlixBus. Additionally, to the extent
permitted by applicable law, FlixBus shall have the opportunity to contest such process by any means available to it
before the records, data or documents are submitted to a court, administrative agency or third party, and Reseller
shall cooperate with FlixBus in such defense.
LIMITED SHARING (
If Reseller is presented with a request a valid public information request pursuant to any T'exas Public Information
Laws for any records, data or documents which are the Confidential Information of the FlixBus or that contain Client
Personal Data, Reseller may disclose Confidential Information, but only to the extent necessary to comply with the
public information request; prior to any such disclosure, Reseller is obligated remove or redact any and all Client
Personal Data.
herein.
IN WITNESS WHEREOF, the Parties have executed this Agreement to become effective as of the date noted
FuxBus, INt.
By:
Name: Pierre Gourdain
Title: Senior Manaein� Director, FlixBus, Inc.
Date: January 10, 2023
THE CITY OF LUBBOCK
By:
Name: Tra a e
Title: _ Mayor
�ate: Julv 11, 2023
(FlixBus, Inc. signature is valid provided the document is true to form)
LIMITED SHARING ]
EXHIBIT "A"
First Amendment to Ticket Reseller Agreement
This First Amendment to Ticket Reseller Agreement ("First Amendment") is entered into by
and between FlixBus, Inc. on the one hand ("Flix"), with its principal place of business at 315
Continental Avenue, Dallas, Texas, 75207, and City of Lubbock, Texas ("Reseller") on the other hand
(referred to herein as "RESELLER" or "Reseller"), with its principal place of business at 1314 Avenue K,
Lubbock, TX 79401 (collectively the "Parties" and individually a"Party") with the agency number
assigned as #4909 (the"Agency No.").
WHEREAS, Reseller and Flix entered into a Ticket Reseller Agreement ("Agreement") on
January 18, 2023; setting forth the terms and conditions for Reseller to sell tickets for Flix; and
WHEREAS, the Parties desire to amend the Agreement as follows:
�
IV
The address for Flix shall be changed so that it is consistent with that stated above: 315
Continental Avenue, Dallas, TX 75207.
Sub-section 7.1 under the Accounting and Payment section (first subsection) shall be
deleted in its entirety and shall be replaced with the following:
"For each Booking, FlixBus shall pay the Reseller a commission equal to ten percent
(10%) of the Gross Sales Revenue (the "Commission"). "Gross Sales Revenue" means
the Reseller Rate collected by the Reseller for each Booking including any applicable
sales tax and Ancillaries but net of any discount, all whether charged by Reseller or
FlixBus and shall not include any amounts that are refunded to a customer for any
reason. "Ancillaries" as defined herein shall include only those additional services
purchased by customers related to their on-board travel such as additional baggage
fees, bicycle transportation fees and reserved seating. Commission shall not be paid
on any booking or service fees or any other fees which may be charged by FlixBus.
FlixBus may offer a higher commission for limited periods as a special reward or
incentive."
This Amendment shall be effective retroactively to the same date of effectiveness as the
Agreement.
All other provisions in the Agreement not specifically referenced herein shall remain in full
force and effect.
IN WITNESS WHEREOF, the Parties have executed this First Amendment to become effective
as of the effective date noted herein.
FuxBus, INt.
By:
Name: U�'� J�^^ � ��
Title: �-e�; /��l hyg�—
Date• �0�3��Z�
Cinr oF LueeotK, Tew►s
By:
Name: Tr Pa ne
Title: Mayor
�ate: July 11, 2023