Last Updated: March 16, 2021

These terms of service (“Agreement”) form a legal agreement between you (including, if applicable, any legal entity which you represent or act for) (“Customer”) and TripActions, Inc. (“TripActions”) and sets forth the terms and conditions governing Customer’s access to and use of the Services (as defined below). By clicking “I Accept,” entering into a Service Order, or by using the Services, Customer agrees to be bound by this Agreement, as may be amended by TripActions from time to time with notice to Customer.

1. DEFINITIONS

1.1. “Affiliate” means with respect to a party, any entity which (i) is controlled by, (ii) controls, or (iii) is under common control with such party, where the term “control” means the ownership, directly or indirectly, of more than fifty percent (50%) of the shares entitled to vote for the election of directors.

1.2. “App” means the mobile application owned by TripActions through which a Licensed User (as defined below) may access the Services.

1.3. “Booking Services” means the online and hosted services provided by TripActions through the App or Site which includes, at a minimum, the functionality for Licensed Users to search for and book travel and access 24/7/365 support; as well as administrative functionality including real-time reporting, traveler tracking, and (if applicable) corporate customer support.

1.4. “Confidential Information” means any written, machine-reproducible and/or visual materials that (i) are clearly labeled as proprietary or confidential, (ii) are identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure, or (iii) which should reasonably be understood to be confidential given the nature and circumstances of its disclosure, provided that Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.

1.5. “Customer Data” means any personal data or payment information input by the Customer or its Licensed Users into the Services and includes Shared Information (defined in Section 5.2). Customer Data is Confidential Information of Customer.

1.6. “Expense Services” includes, at a minimum, the functionality for Licensed Users to use physical commercial payment cards and the ability to submit expenses for reimbursement; as well as administrative functionality including real-time reporting and (if applicable) corporate customer support.

1.7. “Fees” means any fees paid by Customer for the Services, including Implementation Fees, Platform Fees, and Trip Fees, as stated in the applicable Service Order, and the Management Fee (defined in Section 5.4.3), but does not include any monies paid by Customer for Travel Services (defined in Section 5.2) or for Reward Program Funds (defined in Section 5.4.1) or for Charges (defined in Section 6.5).

1.8. “Implementation Services” means the services performed by TripActions to configure and launch the Services to Customer and its Licensed Users, as further described in the Service Order.

1.9. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.

1.10. “Licensed User(s)” means an employee, advisor, or agent of Customer, or other individual authorized by Customer, that has (i) been assigned a unique username-password combination to access and use the Services, and (ii) downloaded and registered through the App or the Site to access and use the Services.

1.11. “Payment Services” includes, at a minimum, the functionality for Licensed Users to use virtual commercial payment cards for business expenses and access to 24/7/365 support; as well as administrative functionality including real-time reporting and (if applicable) corporate customer support.

1.12. “Service Order” means an order for Services mutually agreed between the parties, which incorporates this Agreement by reference.

1.13. “Service(s)” means the online and hosted services provided by TripActions through the App or Site, which may include a combination of Booking Services, Expense Services, or Spend Services, and any purchased support services, including the Implementation Services and Success Services. The scope of the Services purchased by the Customer may be further described in the applicable Service Order.

1.14. “Site” means the TripActions website located at https://app.tripactions.com/.

1.15. “Software” means any TripActions or third-party software used by TripActions to provide the Services.

1.16. “Success Services” means the select corporate support services offered by TripActions to improve Customer’s use of the Services.

1.17. “Trip” means the full set of travel reservations – including, but not limited to, air tickets, hotel, car rental, and other ancillary services, in any combination – that are purchased to enable one (1) personal or business trip.

2. ACCOUNT; IMPLEMENTATION

2.1. Employer Account. To access the features of the Services, Customer must register for an account (the “Employer Account”) on the TripActions Site or App. Customer is responsible for maintaining the confidentiality of its account access credentials, the credentials of Licensed Users, and the security of Customer’s systems and networks that it uses to access the Services. If Customer has reason to believe that its Employer Account is no longer secure, then it shall notify TripActions as soon as possible.

2.2. Implementation Services. Subject to Customer’s cooperation and assistance in accordance with Section 3.1, TripActions will provide the applicable Implementation Services, as described in the Service Order, to enable Customer to use the Services.

3. CUSTOMER OBLIGATIONS

3.1. Cooperation and Assistance. Customer shall at all times: (a) provide TripActions with good faith cooperation and access to such information and personnel assistance as may be reasonably required by TripActions in order to provide the Services from time to time; and (b) carry out in a timely manner all other Customer responsibilities set forth in this Agreement.

3.2. Marketing Support. Customer grants to TripActions a non-exclusive, non-transferable (except as permitted under Section 15.8), revocable, limited right to use the Customer name, trademarks, and logos (collectively, the “Customer Marks”) in accordance with any Customer trademark and logo use guidelines that Customer provides to TripActions. Any public use by TripActions of the Customer Marks shall be subject to Customer’s prior consent, except that TripActions may use the Customer Marks to identify Customer as a customer of TripActions, including on the TripActions corporate website. All goodwill developed from such use shall be solely for the benefit of Customer.

3.3. Enforcement. Customer shall ensure that all Licensed Users comply with this Agreement, including, without limitation, with Customer’s obligations set forth in Sections 4.3, 4.4, and 4.5. Customer shall be responsible for noncompliance by Licensed Users, and for any charges incurred as a result of such actions. Customer shall promptly notify TripActions of any suspected or alleged violation of this Agreement by a Licensed User or unauthorized third party and shall cooperate with TripActions with respect to TripActions’ resulting investigation and any actions to enforce this Agreement. TripActions may suspend or terminate any Licensed User’s access to the Services upon notice to Customer in the event that TripActions reasonably determines that such Licensed User has violated this Agreement or has otherwise violated the law.

3.4. Telecommunications and Internet Services. Customer acknowledges and agrees that Customer’s and its Licensed Users’ use of the Services is dependent upon access to telecommunications and Internet services. Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. TripActions shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.

3.5. License to Customer Data. Customer Data includes data derived from Customer Data but does not include non-identifiable data or metadata associated solely with the behaviors or actions of Licensed Users with the Services. Customer shall retain all right, title, and interest in and to Customer’s Intellectual Property Rights in Customer Data. By importing or processing Customer Data, Customer grants to TripActions the right and license to reproduce, distribute, modify, and adapt Customer’s Data solely for the purpose of providing the Services to Customer, including the right to disclose Customer Data to TripActions’ subcontractors as necessary to provide the Services to Customer as well as to Travel Providers when necessary to facilitate the purchase or provision of Travel Services by a Licensed User. TripActions may use, display, store, disclose or transfer Customer Data as may be required by law or legal process and TripActions shall provide reasonable notice to Customer of any such disclosure. TripActions shall be liable for the acts and omissions of its subcontractors to the same extent TripActions would be liable if performing the services of each subcontractor.

3.6. Representations and Warranties with Respect to Customer Data. With respect to any Customer Data that Customer imports, stores, or processes through the Services and provided that TripActions uses such Customer Data in compliance with the terms of this Agreement, Customer represents, and warrants that:

3.6.1. It is the creator and owner of, or has the necessary licenses, rights, consents, and permissions to use and to authorize TripActions (and, where applicable, Licensed Users) to use and distribute Customer Data as necessary to exercise the licenses granted by Customer in this Agreement.

3.6.2. Customer Data, and the use thereof as contemplated herein, does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.

3.6.3. Customer’s privacy policies and practices allow Customer to provide Customer Data regarding Licensed Users to TripActions, and does not prohibit or conflict with TripActions’ ability to use, store, and disclose such Customer Data for the purpose of providing the Services to Customer.

4. TRIPACTIONS SERVICES

4.1. Services. TripActions will provide the Services in accordance with this Agreement, commencing on the date set forth in the Service Order (or, if no Service Order is in place, then on the date Customer begins using the Services) and continuing until such time as Customer cancels the Employer Account or this Agreement is otherwise terminated hereunder. Customer may access and use the Services solely for its internal business purposes and such access and use is expressly limited to the Licensed Users of Customer.

4.2. Access to Services. Access to the Services is provided on a per user basis and is based on the estimated number of Licensed Users each calendar month. If TripActions determines Customer has more users accessing the Services than the number of purchased Licensed User licenses, TripActions may, upon written notice to Customer, invoice Customer for any use of the Services in excess of the estimated monthly Licensed User licenses. TripActions may place reasonable restrictions on the Employer Account, such as restricting or limiting Customer’s ability to add new users, until Customer has adequately addressed the excess users. TripActions reserves the right to increase per Licensed User fees upon renewal, provided the increase is not more than five percent (5%).

4.3. Restrictions. Customer shall not attempt to interfere with or disrupt the Services, Site, App, or Software or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services). Customer shall not allow access to or use of the Services by anyone other than Licensed Users. Customer shall not, and shall use commercially reasonable efforts to ensure its Licensed Users do not: (a) copy, modify or distribute any portion of the Services, Site, App, or Software; (b) rent, lease, or provide access to the Services on a time-share or service bureau basis; (c) modify, data scrape, reverse engineer, disassemble, or decompile any portion of the Services, Site, App, or Software; (d) use the Services in order to (i) build a competitive product or services, or (ii) copy any ideas, features, functions, or graphics of the Services; (e) remove or modify any title, trademark, or copyright from the Services; (f) create derivative works based on the Services or otherwise violate TripActions’ Intellectual Property Rights; or (g) transfer any of its rights hereunder (except as specified in Section 15.8).

4.4. Acceptable Use Policies. Customer shall use the Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Customer may not, and shall use commercially reasonable efforts to ensure that Licensed Users do not, use the Services in any manner that would violate the rights of any third party, including but not limited to storing or processing any third party confidential, personal, or payment information into the Services without proper lawful license or permission to do so. Customer shall not use the Services to transmit any bulk unsolicited commercial communications. Customer shall, and shall ensure that its Licensed Users, keep confidential and do not disclose to any third parties any user identifications, account numbers and account profiles. Customer shall be responsible for the compliance of its Licensed Users with Customer’s travel expense and payment policies, including but not limited to in-policy selection of travel options by Licensed Users, proper use of Customer’s corporate credit card(s) by Licensed Users, and proper submission and substantiation of expenses by Licensed Users for reimbursement by Customer. Customer acknowledges that the Services are not designed, intended or authorized for use in hazardous or mission-critical circumstances or for uses requiring fail-safe performance or where failure could lead to death, personal injury or environmental damage, and Customer shall not use the Services for such purposes or under such circumstances.

4.5. Illegal Use of Services. Customer shall not, and shall ensure that Licensed Users do not, use the Services in any manner that would violate applicable laws. TripActions may immediately suspend Customer’s access to the Services, by written notice to Customer, in the event that (i) TripActions determines on the basis of reasonable evidence that the Services are being used for fraudulent or criminal activities, or in violation of any applicable law or regulation, or (ii) in the event that a governmental, legal or other law enforcement authority so requires, or instructs TripActions to suspend services to Customer. In the event TripActions suspects or anticipates such suspension, TripActions will, to the extent practical under the circumstances, use commercially reasonable efforts to provide Customer with prior written notice of the same and an opportunity to cure the same prior to (and in avoidance of) suspension. Customer acknowledges that under certain circumstances such prior notice and/or cure period may not be possible or practical.

4.6. Data Maintenance and Backup Procedures. The TripActions Services are not intended to be a failsafe data warehouse or data back-up solution. In the event of any loss or corruption of Customer Data, TripActions shall use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by TripActions; Customer acknowledges that full restoration of Customer Data may not be possible under all circumstances.

5. BOOKING SERVICES

5.1. Algorithm. The Booking Services make use of certain proprietary algorithms (collectively, the “Algorithm”) that take into account factors such as Customer policy, Licensed User profiles and behavior, current market conditions, and other relevant factors to determine dynamic travel policy limits, market price, Price to Beat, Rewards availability and amounts, sorting of Travel Services results, availability of special products and discounts, or other features. The Algorithm does not determine or affect the price of any Travel Services. Customer acknowledges that the Algorithm is a dynamic feature of the Booking Services and may display different results in connection with different Licensed Users, locations, travel dates, and other search and profile elements.

5.2. Travel Services. Through the Booking Services, Customer and its Licensed Users may receive services (“Travel Services”) from third-party providers of travel and related services, such as airlines, hotel operators, rail companies, travel inventory aggregators, travel networks and agencies, and car rental agencies (“Travel Provider(s)”). In order to facilitate the purchase of Travel Services by a Licensed User, Customer and the Licensed User authorize TripActions to submit certain information, including the name and other personal information of the Licensed User and the applicable payment information (collectively, the “Shared Information”), to the Travel Provider to the extent required by the Travel Provider. As an example and by way of illustration only: to facilitate a Licensed User’s purchase of an airline ticket, TripActions may provide the Licensed User’s name, other identifying information, and payment information to the Travel Provider (the airline).

5.2.1. TripActions is not responsible for the provision of Travel Services and does not guarantee the correctness of any material, information or results made available to Customer by or from Travel Providers, and the presentation of travel inventory through the Booking Services does not constitute a binding contract offer by TripActions or the respective Travel Provider. Customer acknowledges and agrees that (i) the purchase of Travel Services may be subject to the terms and conditions, agreements (such as contract of carriage), and privacy and security policies of the specific Travel Provider selected by the Licensed User, and (ii) the use of Travel Services will be subject to Customer’s and Licensed Users’ compliance with applicable law. Customer and its Licensed Users shall be solely responsible for, and assume all risk arising from, the selection, use and receipt of any Travel Service. Customer shall be responsible for the accuracy of all Shared Information it provides to TripActions, provided that TripActions takes reasonable measures to ensure the accuracy of information and data it transmits between the Licensed User and the Travel Provider in a booking transaction.

5.2.2. TripActions takes commercially reasonable measures to check the accuracy of the information and description of the Travel Services displayed on the Booking Services (including, without limitation, the pricing, photographs, list of hotel amenities, general product descriptions, etc.); however, TripActions does not guarantee the accuracy or completeness of such information, as provided by Travel Providers. TripActions disclaims any and all liability for any errors or other inaccuracies relating to the Travel Services except to the extent such errors are caused by or introduced by an act or omission of TripActions. TripActions expressly reserves the right to correct any pricing errors on the Booking Services and/or pending reservations made under an incorrect price.

5.2.3. TripActions shall not be liable for the performance of any Travel Service, any loss or injury to any Licensed User resulting from a Travel Service, or any unauthorized use, disclosure, or misuse of any Shared Information by a Travel Provider.

5.3. Travel Risk. By offering reservations for Travel Services via the Booking Services, in particular for international destinations, TripActions does not represent or warrant that travel to such areas is advisable or without risk, and is not liable for damages or losses that may result from travel to such destinations. The Travel Providers are independent contractors and not agents, subcontractors, or employees of TripActions. TripActions disclaims all liability relating to the actions or inactions of Travel Providers or to any Travel Services, including any actions or inactions that result in any personal injuries, death, property damage, or other damages to Customer or a Licensed User. TripActions has no liability to Customer or its Licensed Users and will make no refund in the event of any delay, cancellation, overbooking, strike, Force Majeure Event or other causes beyond TripActions’ control.

5.4. Rewards Program. If Customer elects, in a Service Order or through the Employer Account, to enable the TripActions Rewards Program for Licensed Users, Customer agrees that the following terms will apply:

5.4.1. Definitions. (i) “Price to Beat” means the target cost of a particular travel option, as determined by the Algorithm, as displayed in the Booking Services. (ii) “Reward-Eligible Booking” means a travel option (e.g., flight, hotel, car rental) that is purchased and actually used by a Licensed User via the TripActions Site or App for business travel (excluding any travel services for personal or non-business travel, and travel services for which payment is made using Reward Points (as defined below)). (iii) “Eligible Savings” means the difference between the Price to Beat and the total actual purchase price of the Reward-Eligible Booking, where the purchase price is less than the Price to Beat. (iv) “Reward Points” means a percentage of the Eligible Savings (which percentage is determined by the Algorithm), which is allocated to, and may be redeemed by, the Licensed User as a personal reward via the TripActions Reward Program. Reward Points accrue to the Licensed User upon the Licensed User’s completion of travel for the Reward-Eligible Booking. (v) “Reward Program Funds” means the aggregate accrued Reward Points for all Licensed Users.

5.4.2. Invoicing and Payment. Each month, Customer shall pay to TripActions the Reward Program Funds that have accrued during the prior calendar month, whether or not the Reward Points have been redeemed by the Licensed Users. Customer is solely responsible for the cost of the Reward Program Funds, and any redemption of Reward Points by a Licensed User is subject to Customer‘s payment of the applicable Reward Program Funds. TripActions shall invoice Customer for the Reward Program Funds on the third (3rd) day of each calendar month (or the first business day thereafter, if the third day is not a business day), and payment shall be due on the tenth (10th) day of the calendar month (or the first business day thereafter, if the tenth day is not a business day), regardless of the method of payment used.

5.4.3. Management Fee. In addition to the Reward Program Funds, Customer shall be charged, and agrees to pay, a payment service fee equal to five percent (5%) of the applicable Reward Program Funds (the “Management Fee”). The Management Fee shall be invoiced and payable along with the Reward Program Funds, and such Management Fee shall be considered a part of the Fees as defined above. If Customer elects to pay the Reward Program Funds by ACH Autopay, the Management Fee will be waived for all such payments.

5.4.4. Taxes and Legal Responsibilities. Customer shall be responsible for payment of all Taxes and associated legal responsibilities, and any related interest and/or penalties, resulting from any payments made to Licensed Users under the TripActions Reward Program, including, but not limited to, preparing applicable Forms W2 and Forms 1099-MISC for Licensed Users.

5.4.5. Rewards. TripActions is not responsible for and makes no warranty with respect to the quality of any Rewards, or their suitability to a specific use. Rewards are supported by the warranties of their individual providers, if any. As used herein, “Rewards” means eligible goods or similar items that TripActions will determine in its discretion and display via the Site or App, such as gift cards or travel packages, which can be redeemed by Licensed Users in exchange for Reward Points.

6. PAYMENT AND EXPENSE SERVICES

If Customer elects to use the Payment Services or Expense Services (collectively, the “TripActions Liquid Services”), the following terms in this Section 6 will apply.

6.1. Representations & Warranties. TripActions represents and warrants that it will comply with all applicable laws in the provision of the TripActions Liquid Services. Customer represents and warrants that it will use the TripActions Liquid Services for lawful internal business purposes, in compliance with all applicable laws.

6.2. Customer Onboarding. TripActions will collect from Customer, and Customer will give reasonable assistance to provide, information needed to onboard Customer for TripActions Liquid Services and to set the Monthly Spend Limit. TripActions will provide a secure transmission method to collect this information and will retain and use this information only as needed to set up and administer the TripActions Liquid Services. If applicable, TripActions will share such information to create Customer’s account with Stripe, the third-party provider for TripActions Liquid Services.

6.2.1. Material Changes. Customer must notify TripActions promptly, but in any event within ten (10) business days, if there are any material changes in the business information that Customer provided to TripActions, including (but not limited to): jurisdiction of registration, ownership structure, tax identification, or administrative point of contact. Customer must notify TripActions immediately, but in any event within two (2) business days, if Customer becomes insolvent, makes an assignment for the benefit of creditors, ceases to do business, or if any bankruptcy, reorganization, arrangement, insolvency, liquidation proceeding, or other proceeding under any bankruptcy or other law for the relief of debtors is instituted by or against Customer.

6.3. Monthly Spend Limit and Adjustments. Customer’s account for TripActions Liquid Services will have a Monthly Spend Limit, which will be set by TripActions in its sole discretion. Customer’s initial Monthly Spend Limit is indicated in the applicable Service Order. Depending on Customer’s financial condition and its use of the TripActions Liquid Services, TripActions reserves the right to adjust Customer’s Monthly Spend Limit in its sole discretion, with written notice to Customer. If Customer reaches 80% of the Monthly Spend Limit, TripActions will notify the Customer, as identified in applicable Service Order and updated by Customer from time to time. At that point, TripActions may require Customer to pay down a portion of the balance, calculated based on Customer’s projected spending for the remainder of the month. Customer may request, in writing, an increase in its Monthly Spend Limit, which TripActions may accept or decline in its sole discretion. TripActions may suspend providing the TripActions Liquid Services if and when (i) Customer reaches its Monthly Spend Limit, or (ii) TripActions debits from Customer’s Reserve Amount, if applicable.

6.4. Reserve Amount. TripActions may require Customer to provide a designated sum to TripActions as a cash-secured deposit (the “Reserve Amount”) before the full Monthly Spend Limit is available to Customer. Charges are not debited against the Reserve Amount unless Customer becomes delinquent in its payments to TripActions. Upon written instruction by TripActions, Customer shall send the Reserve Amount to a TripActions account used for customer deposits. Upon termination of the Agreement or termination of the Payment Services, and no later than ten (10) business days after all outstanding Charges have been paid, the Reserve Amount will be returned to Customer, to an account designated in writing by Customer.

6.5. Customer Charges. Customer is responsible for all booking charges, reservation charges, deposits, debits, cancellation fees, and other financial charges that arise from Customer’s use of the TripActions Liquid Services (the “Charges”). As part of onboarding, Customer will provide its bank account information to TripActions for purposes of payment. Customer must enable ACH Auto-Pay for this bank account. Customer agrees that TripActions may save such bank account information and use such information to debit Customer’s bank account periodically, in accordance with this Section 6, to pay Charges.

6.5.1. Invoicing and Payment. On or around the second (2nd) day of each month, TripActions shall provide a monthly statement to Customer listing the Charges due for the prior month. Customer consents to electronic notification and distribution of statements, and TripActions shall send Customer an email notification that provides Customer with access to each monthly statement. The payment due date for the Charges set forth in any monthly statement will be ten (10) days after the date Customer receives access to the monthly statement of Charges. Customer hereby authorizes TripActions to initiate a debit transaction on the designated account on the payment due date, without any further authorization on the part of Customer.

6.5.2. Disputed Charges. All Charges will be made in USD, and any foreign currency exchange to USD will be processed by Stripe. Customer may dispute any Charges set forth in the applicable monthly statement by contacting [email protected] within thirty (30) days after the Charge is posted to its account. TripActions will review the dispute and take measures to address the disputed Charge(s) in its reasonable discretion. Late payment fees will not apply to past-due Charges that are the subject of a good-faith Customer dispute. All Charges not disputed within thirty (30) days after such Charges are posted to Customer’s account shall be deemed to have been agreed to by Customer.

6.5.3. Late Fees. If TripActions is unable to charge the Charges to the payment information on file or if the Charges are otherwise past due, TripActions shall have the right to (i) apply a late fee on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate allowed by law, calculated from the date such amount was due until the date that payment is received by TripActions, (ii) debit from Customer’s Reserve Amount, if applicable, or (iii) suspend Customer’s access to the TripActions Liquid Services if Charges remain overdue after reasonable notice (not less than three (3) business days) is provided to Customer.

6.6. Customer Rebate. By using TripActions Liquid Services, Customer will be eligible to earn a rebate (the “Rebate”). The Rebate will be calculated by TripActions at the end of each calendar quarter by multiplying the Customer Rebate Percentage with Customer’s Eligible Rebate Spend during the quarter. “Eligible Rebate Spend” means Customer’s total spend using TripActions Liquid payment methods, where the transaction local currency is in USD and excluding spend made in foreign currencies. The Rebate will be provided to Customer in the form of an account credit that will be available within thirty (30) days after each calendar quarter. The Rebate will be automatically applied to Charges Customer accrues using TripActions Liquid Services after the Rebate is posted to Customer’s account. Upon written notice to Customer, TripActions reserves the right to adjust the mechanism for application or the eligibility terms of the Rebate or of any other similar offerings. If Customer elects to terminate TripActions Liquid Services for any reason but maintains the Booking Services, the Rebate will be applied to Customer’s Platform Fees in the following invoice or issued via check upon Customer’s written request. If Customer elects to terminate the Agreement for any reason or if the Agreement terminates automatically as provided therein, TripActions will issue a check or initiate a bank transfer for the Rebate amount after all outstanding Charges have been paid. If TripActions terminates the TripActions Liquid Services or the Agreement for cause, any unused Rebates will lapse as of the date of termination.

6.7. Suspension of TripActions Liquid Services. TripActions may immediately suspend Customer’s access to TripActions Liquid Services in the event that (i) either Stripe or its partner financial institutions suspends or terminates providing payment processing services to TripActions or to Customer; (ii) TripActions determines on the basis of reasonable evidence that (a) Customer is in material breach of this Agreement, including the Stripe Services Agreement, or (b) the TripActions Liquid Services are being used for fraudulent or criminal activities, or in violation of applicable law or regulation; or (iii) in the event that a governmental, legal, or other law enforcement authority requires or instructs TripActions to suspend TripActions Liquid Services to Customer. TripActions will, to the extent practical under the circumstances, use commercially reasonable efforts to provide Customer with prior written notice of the same and an opportunity to cure the same prior to (and in avoidance of) suspension. Any Charges or other Customer payment obligations that precede termination of TripActions Liquid Services for any reason will survive such termination.

7. FEES; TAXES

7.1. Fees; Late Payment. Customer shall pay the Fees as set forth and defined in the applicable Service Order, using the method described therein or as selected by Customer on the TripActions Site. Customer is responsible for maintaining complete and accurate billing and contact information and notifying TripActions of any changes to such information. If TripActions is unable to charge the Fees to the payment information on file or if the Fees are otherwise overdue, TripActions shall have the right to (i) apply interest on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by TripActions, and (ii) suspend Customer’s access to the Services if Fees remain overdue after reasonable notice, no less than fourteen (14) days, is provided to Customer. TripActions shall not pursue its rights in the foregoing sentence with respect to Fees that are under a reasonable, good faith dispute which Customer is cooperating diligently to resolve. If undisputed Fees remain overdue for ninety (90) days or more, Customer shall be obligated to reimburse TripActions for the reasonable costs of collection, including reasonable fees and expenses of attorneys. Except as otherwise set forth in an applicable Service Order, all Fees are non-refundable.

7.2. Payment by ACH. Customer has the option to select ACH Bank Transfer as its authorized payment method on the Service Order or by updating its Employer Account on the TripActions Site. Customer may select either standard ACH Bank Transfer or ACH Auto-Pay, as described below. Regardless of the payment method selected, it is the responsibility of Customer to maintain sufficient funds or credit in its designated account(s) to cover and timely pay any Fees, and to authorize its financial institution to authorize entries as transmitted by TripActions. Customer understands that there may be a service charge for any TripActions charge that is denied due to insufficient funds.

7.2.1. If Customer elects standard ACH Bank Transfer, then Customer shall receive an invoice in advance of the payment due date and shall initiate payment to TripActions from its bank account to cover Fees due, on or before the payment due date.

7.2.2. If Customer elects ACH Auto-Pay, then TripActions shall provide an invoice to customer in advance of the payment due date, and Customer hereby authorizes TripActions to initiate a debit transaction on the designated account on the payment due date without any further authorization on the part of Customer. TripActions may draw or transmit funds to its own order to pay any Fees.

7.3. Taxes. Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes associated with its purchase of Services and any related interest and/or penalties resulting from any Fees, other than any taxes based on TripActions’ net income, property, or employees. If TripActions is legally required to collect and remit Taxes which the Customer is responsible for, TripActions will state such Taxes separately on an invoice and Customer shall pay the Taxes to TripActions unless Customer provides TripActions with a valid tax exemption certificate with order. If TripActions is not legally required to collect and remit Taxes which the Customer is responsible for, there will be no Taxes stated on the invoice, and Customer shall self-assess and remit all taxes to the appropriate governing authority. For all non-USA based transactions, the Customer shall self-assess any related Taxes, including but not limited to VAT and GST. Customer is responsible for all withholding tax: Taxes will not be deducted from Customer payments to TripActions, except as required by applicable law, in which case Customer shall increase the amount payable as necessary so that, after making all required deductions and withholdings, TripActions will receive and retain an amount equal to the amount TripActions would have received had no such deduction or withholding been made. Upon TripActions’ request, Customer will provide proof of withholding tax remittance to the applicable tax authority. Both parties agree to apply any applicable tax treaty and provide the necessary documentation for application of such treaty, where applicable, to reduce the withholding tax. With respect to Taxes charged on or applicable to the purchase or sale of Travel Services, TripActions shall reflect such Taxes in invoices and/or in the reporting available to Customer on the TripActions Site, and Customer shall be responsible for the payment of all such Taxes.

7.4. Local Currency. All Fees will be billed and charged in USD unless otherwise stated in the Service Order. To the extent a currency conversion is required for Trip Fees, the conversion will be undertaken at the time of the purchase, at the exchange rate applicable at that time. To the extent a currency conversion is required for Fees that are invoiced to Customer, the conversion will be undertaken at the last day of the invoice period, at the exchange rate applicable at that time.

8. OWNERSHIP.

As between TripActions and Customer, the Services, Site, App, and Software (and all copies of the Software), and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of TripActions or its licensors. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Services, Site, App, and Software provided by TripActions (the “Materials”) are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of TripActions or its third-party licensors. Except as expressly authorized by TripActions, Customer may not make use of the Materials. TripActions reserves all rights to the Materials not expressly granted in this Agreement.

9. CONFIDENTIALITY AND SECURITY.

9.1. Confidentiality Obligations. During the Term of this Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Neither party shall disclose Confidential Information except to such party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers that have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the receiving party must provide (to the extent permitted by applicable law) the disclosing party with sufficient advance notice of the agency’s request for the information to provide the disclosing party an opportunity to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.

9.1.1. The receiving party’s obligations to guard the disclosing party’s Confidential Information will survive for a period of five (5) years after expiration or termination of this Agreement, except that personal information within a party’s reasonable control shall be kept confidential in perpetuity until such personal information is returned or deleted. Personal information may be deleted through obfuscation. The receiving party may retain an archival copy of the Confidential Information to the extent necessary to comply with applicable law or archival policies, provided that such retained Confidential Information shall remain subject to all confidentiality obligations under this Agreement.

9.2. Security Obligations. TripActions shall (i) maintain appropriate information security practices for TripActions’ systems used to provide Services, including reasonable security procedures and practices appropriate to the nature of the information, to prevent unauthorized access to, or use or disclosure of, any Customer Data (a “Security Incident”), and (ii) comply with all privacy and data security laws and regulations applicable to TripActions. TripActions shall promptly notify Customer of any confirmed Security Incident that has impacted Customer Data, investigate, and remediate any such Security Incident. For Security Incidents arising out of TripActions’ negligence or failure to apply commercially reasonable security practices, TripActions shall be responsible for (i) costs of government or regulatory fines, and (ii) if Customer reasonably determines that it is required by applicable law to provide notice and/or credit monitoring or identity protection to any Licensed User and/or to provide notice to any governmental entity, costs associated with any such notices or identity protection (collectively, “Breach Costs”). TripActions shall have no responsibility to pay costs related to a Security Incident to the extent such costs are due to gross negligence, willful misconduct, or fraud by Customer or its Licensed Users. TripActions’ liability for Breach Costs shall not be limited by Sections 13.1 or 13.2.

10. WARRANTY AND DISCLAIMER

10.1. Warranty for Services. TripActions warrants that the Services will substantially conform to the functionality set forth herein, and that the Services shall be provided in a professional and workmanlike manner, in compliance with all applicable laws.

10.2. Customer Use and Data. TripActions shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to TripActions by Customer or by any Licensed User in connection with the Services. TripActions is under no obligation to edit or control Customer Data that Customer imports to the Services. TripActions may, at any time without prior notice, remove any Customer Data that violates this Agreement or applicable law, or which violates the rights of a third party or TripActions. TripActions shall have no liability for any acts taken by Customer or a Licensed User in violation of the Acceptable Use Policies described in Section 4.4, including but not limited to a Licensed User’s misuse of Customer’s corporate credit card or violation of Customer’s travel and expense policies.

10.3. General Disclaimer. Except as expressly provided in Section 10.1, TripActions makes no representations or warranties of any kind whatsoever, express or implied, in connection with this Agreement or the Services. Without limiting the foregoing, except as expressly provided in Section 10.1, TripActions disclaims any warranty that the Services will be error free or uninterrupted or that all errors will be corrected. TripActions further disclaims any and all warranties with respect to the Services as to merchantability, accuracy of any information provided, or fitness for a particular purpose, or non-infringement. TripActions further disclaims any and all warranties arising from course of dealing or usage of trade. No advice or information, including but not limited to tax advice and reporting responsibilities, whether oral or written, obtained from TripActions or elsewhere shall create any warranty not expressly stated in this Agreement. In jurisdictions that by law do not allow the exclusion of certain warranties in certain circumstances, the disclaimers in this Section 10.3 and elsewhere in this Agreement shall be construed to comply with such applicable law.

11. TERM AND TERMINATION

11.1. Term. The term of the Services shall be as set forth in the applicable Service Order (“Term”). This Agreement shall commence on the date set forth in the Service Order (or, if no Service Order is in place, then on the date Customer commences using the Services) and shall continue until such time as Customer cancels the Employer Account, unless terminated earlier as provided in this Agreement. Commencement of the Services shall be determined by the Parties and included in the applicable Service Order. Except as otherwise specified in the applicable Service Order, the Term shall automatically renew for additional periods equal to the expiring Term unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the expiring Term.

11.2. Termination for Convenience. At any time, Customer may terminate this Agreement or any individual Service, effective immediately, by providing TripActions written notice or by cancelling their Employer Account. Termination of an individual Service will not automatically terminate other Services or this Agreement, and the other Services and this Agreement shall continue in full force and effect. Customer may, in its sole discretion, elect to offer TripActions advance notice of any such termination, and if so, TripActions will reasonably cooperate with Customer, in a wind-down of services prior to such termination. Unless otherwise stated in the applicable Service Order, Customer shall not be entitled to a refund of any prepaid Fees as a result of Customer’s termination for convenience. In no event shall any termination relieve Customer of the obligation to pay any undisputed Fees payable to TripActions for the period prior to the effective date of termination or cancellation.

11.3. Termination for Breach. If either party commits a material breach of its obligations in this Agreement or any Service Order (including payment obligations), the non-defaulting party may give written notice to the defaulting party specifying the nature of the default, and if such default is not remedied, or substantial efforts are not made to remedy such default, within thirty (30) days from the receipt of such notice, then the non-defaulting party shall have the right to immediately terminate this Agreement or the Service Order by written notice. If the breach relates solely to one Service Order or Service, then only such Service Order or Service may be terminated in accordance with the terms herein and the other Service Orders, Services, and this Agreement shall continue in full force and effect. In the event that Customer terminates due to breach by TripActions, Customer shall be entitled to a pro-rated refund of unused, prepaid Fees as of the date of termination.

11.4. Termination for Insolvency. Notwithstanding anything hereinabove set forth, either party may terminate this Agreement immediately by providing written notice to the other party in the event the other party becomes insolvent, makes an assignment for the benefit of creditors, ceases to do business, or if any bankruptcy, reorganization, arrangement, insolvency, liquidation proceeding, or other proceeding under any bankruptcy or other law for the relief of debtors is instituted by or against such party.

11.5. Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, (i) Customer’s and Licensed Users’ right to access and use the Services shall immediately terminate, (ii) Customer and its Licensed Users shall immediately cease all use of the Services, (iii) TripActions shall cease use of the Customer Marks within a reasonable time, and (iv) each party shall delete or return, and make no further use of, any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party, in accordance to Section 9.

11.6. Survival. Upon termination, any provision which, by its nature or express terms should survive, will survive, including, specifically, Sections 8 (Ownership), 9 (Confidentiality and Security), 12 (Indemnification), 13 (Limitation of Liability), 14 (Disputes), 15 (General).

12. INDEMNIFICATION

12.1 Indemnification by Customer. Customer shall indemnify TripActions, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, associated with any claim by a third party: (i) to the extent arising out of Customer’s or any Licensed User’s use of the Services in a manner that violates Sections 4.3, 4.4, or 4.5; (ii) alleging that any Customer Data, as used in the Services, violates a third party’s privacy rights (except to the extent such damages are caused by TripActions’ failure to guard the privacy and security of Customer Data); or, (iii) arising out of Customer’s breach of the Stripe Services Agreement, if applicable. Customer’s obligations under this Section 12.1 are contingent upon TripActions providing Customer with prompt written notice of such claim. TripActions may not settle any claim to which it is seeking or is entitled to indemnification in a manner that would result in an admission of any wrongdoing by Customer, without Customer’s prior written approval.

12.2 Indemnification by TripActions. TripActions shall indemnify Customer, its officers, directors, and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, associated with any third party’s claim that: (i) the Services or Customer’s authorized use of Services infringes or misappropriates the Intellectual Property Rights of any third party; (ii) arises out of TripActions’ violation of applicable law; or (iii) arises out of TripActions’ breach of its agreements with Stripe, if applicable. TripActions’ obligations under this Section 12.2 are contingent upon: (a) Customer providing TripActions with prompt written notice of such claim; (b) Customer providing reasonable cooperation to TripActions, at TripActions’ expense, in the defense and settlement of such claim; and (c) TripActions having sole authority to defend or settle such claim. TripActions shall have no liability under this Section 12.2 to the extent that any claims described herein are based on use of the Services in a manner that violates this Agreement or the reasonable instructions given to Customer by TripActions.

12.2.1. With respect to claims described in subsection 12.2(i), in the event that TripActions’ right to provide the Services is enjoined or in TripActions’ reasonable opinion is likely to be enjoined, TripActions may obtain the right to continue providing the Services, replace or modify the Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Customer and provide a pro rata refund of any Fees prepaid and unused upon such termination. The foregoing states the entire obligation of TripActions and its licensors with respect to any alleged or actual infringement or misappropriation of intellectual property rights by the Services.

13. LIMITATION OF LIABILITY

13.1 Consequential Damages Waiver. Except as provided in Section 13.3, in no event shall either party be liable to the other party for an incidental, special, exemplary or consequential damages, including loss of income, data, profits, revenue or business interruption, or cost of substitute services, or other economic loss, whether or not such party has been advised of the possibility of such damages, and whether any claim for recovery is based on theories of contract, warranty, tort (including negligence and strict liability) or otherwise.

13.2 Liability Cap. Except as provided in Section 13.3, in no event shall either party’s aggregate liability to the other party in connection with this Agreement exceed the total Fees paid or payable by Customer in the twelve-month period preceding the claim or action, regardless of the form or theory of the claim or action.

13.3 Exceptions. Sections 13.1 and 13.2 shall not apply to TripActions’ obligation to pay Breach Costs (as defined in Section 9.2) or to either party’s indemnification obligations as provided in Section 12.

14. DISPUTES

14.1 Informal Resolution. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through reasonable means and providing notice of the dispute. Both parties will use good faith efforts to attempt to reach a resolution. If a dispute is not resolved within thirty (30) days of notice, either party may bring a formal proceeding.

14.2 Agreement to Arbitrate. TripActions and Customer agree to resolve any claims relating to this Agreement through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in San Francisco, CA or any other location mutually agreeable to the parties.

14.3 Exceptions. Either party may bring a lawsuit in the state or federal courts located in Santa Clara County, California (i) to enforce the arbitration provisions of this Agreement, or (ii) for equitable relief as described in Section 15.12. TripActions and Customer hereby consent to exclusive jurisdiction in such courts.

15. GENERAL

15.1 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, without regard to its conflict of law provisions.

15.2 Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

15.3 Notices. Any notices provided by TripActions under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Services. For notices by e-mail, the recipient shall be the e-mail address provided by Customer in the applicable Service Order, and the date of receipt will be the date on which such notice is transmitted.

15.4 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.

15.5 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes (except by its own employees), shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

15.6 Compliance with Laws. Each party agrees to comply with all applicable laws, including U.S. export laws, and regulations with respect to its activities hereunder.

15.7 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

15.8 Assignment/Successors. Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s prior written consent except to its Affiliate or in the event of a Change of Control (as defined below). Any attempted assignment or transfer in violation of this Section will be null and void. “Change of Control” means, with respect to a party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such party or (ii) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (b) the merger of such party with another entity. Subject to the foregoing, this Agreement shall inure to the benefit of the successors and permitted assigns.

15.9 Feedback. If Customer or its Licensed Users submit suggestions, ideas, comments, or questions containing product feedback about or posted through the Services (“Feedback”), Customer grants TripActions and its Affiliates a worldwide, non-exclusive, royalty-free, perpetual, and irrevocable right to use (and full right to sublicense), reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, and display such Feedback in any form. For clarity, Feedback shall not contain Customer Confidential Information, including Customer Data, and shall not reference or identify Customer or its Licensed Users. Customer shall have no intellectual property right in the Services as a result of TripActions’ incorporation of Feedback into the Services.

15.10 Changes. TripActions reserves the right to, without materially affecting the functionality of the Services: (1) discontinue, impose limits on, or restrict access to any aspect of the Services at any time, with or without cause or notice, including the availability of any of the features, delivery services, databases, or content, or (2) edit or delete any documents, information, or other content appearing in the Services. In the event that changes permitted by this Section 15.10 materially impact the features available to Customer and its Licensed Users for a substantial period of time, Customer may terminate this Agreement without penalty (and shall be entitled to receive a prorated refund of any unused prepaid Fees) after providing thirty (30) days’ prior notice to TripActions.

15.11 Entire Agreement. This Agreement, together with the exhibits hereto and including any Service Orders, constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.

15.12 Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.

15.13 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the signatories and is not intended to benefit any third party. Only the parties may enforce this Agreement.

15.14 EU Residents. The EU Package Travel Directive (Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements) does not apply to travel purchased through TripActions on the basis that the Agreement is a general agreement for the arrangement of business travel.