TripActions Terms of Service

Last Updated: March 11, 2022

These terms of service (“Terms”), together with any Service Order and exhibits (if any), form a legal agreement (“Agreement”) between you (including, if applicable, any legal entity that 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). TripActions may amend these Terms from time to time with notice to Customer.

1. DEFINITIONS

1.1. “Active User” means a User that has commenced a Trip (not including personal Trips) or submitted an Expense Services transaction within a calendar month.

1.2. “Affiliate” means with respect to a party, any entity that is controlled by, controls, or 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.

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

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

1.5. “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 their disclosure or in a writing provided within thirty (30) days after disclosure; or (iii) should reasonably be understood to be confidential given the nature and circumstances of its disclosure; provided, however, 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.

1.6. “Customer Data” means any personal data or payment information input by the Customer or its Users into the Services and includes Shared Information (defined in Section 5.2). Customer Data shall be deemed to be Confidential Information of Customer.

1.7. “Expense Services” means the online and hosted services provided by TripActions through the App or Site that include, at a minimum, the functionality for Users to use 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.

1.8. “Fees” means any fees paid by Customer for the Services, including Platform Fees, fees for Implementation Services, and Trip Fees, as stated in the applicable Service Order, as well as any applicable Management Fee (defined in Section 7.3). “Fees” do not include any monies paid by Customer for Travel Services (defined in Section 5.2), Reward Program Funds (defined in Section 5.4.1), or Charges (defined in Section 6.5).

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

1.10. “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.

1.11. “Payment Services” means the online and hosted services provided by TripActions through the App or Site that include, at a minimum, the functionality for Users to use virtual commercial payment cards for business expenses, as well as administrative functionality including real-time reporting and (if applicable) corporate customer support.

1.12. “PSP” means a third-party payment service provider through which Customer agrees to receive TripActions Liquid Services.

1.13. “PSP Terms” means the agreement(s), if any, between Customer and a PSP.

1.14. “Request” is a single support request, whether addressed across one or multiple interactions (e.g., email messages, calls). For clarity, a single Trip may have more than one Request.

1.15. “Service Order” means an order for Services mutually agreed between the parties, whether agreed in writing or by clicking to agree online.

1.16. “TripActions Liquid Services” means any Payment Services or Expense Services. TripActions Liquid Services that are provided in Euros or British Pounds are referred to as “TripActions Liquid EUR Services” and “TripActions Liquid GBP Services”, respectively, and together as “TripActions Liquid EUR/GBP Services”.

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

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

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 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. TripActions will provide the applicable Implementation Services, as described in the Service Order, to enable Customer to use the Services. Customer will provide cooperation and assistance as described in Section 3.1.

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 the Agreement.

3.2. Marketing Support. Customer grants to TripActions a non-exclusive, non-transferable (except as permitted under Section 15.7), 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 Users comply with the Agreement, including, without limitation, with Customer’s obligations set forth in Sections 4.4, 4.5, and 4.6. Customer shall be responsible for noncompliance by Users and shall promptly notify TripActions of any suspected or alleged violation of the Agreement by a User or unauthorized third party and shall cooperate with TripActions with respect to TripActions’ resulting investigation and any actions to enforce the Agreement. TripActions may suspend or terminate any User’s access to the Services upon notice to Customer if TripActions reasonably determines that such User has violated the Agreement or has otherwise violated applicable law.

3.4. Telecommunications and Internet Services. Customer acknowledges and agrees that Customer’s use of the Services requires access to telecommunications and Internet services. Customer shall be solely responsible for acquiring and maintaining (at its expense) all telecommunications and Internet services and other hardware and software required to access and use the Services. 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 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’ subprocessors 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 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 subprocessors to the same extent TripActions would be liable if performing the services of each subprocessors.

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 the 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, Users) to use and distribute Customer Data as necessary to exercise the licenses granted by Customer in the Agreement.

3.6.2. Customer’s privacy policies and practices allow Customer to provide Customer Data regarding Users to TripActions, and do 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 the 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 the Agreement expires or 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 Users of Customer.

4.2. Access to Services. Access to the Services is provided on a per User basis and is subject to the usage limitations set forth in the Service Order. If Customer’s use of the Services exceeds such usage rights, Customer will be subject to applicable additional Fees. 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 any use in excess of the rights granted hereunder.

4.3. 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, databases, or content, or (2) edit or delete any documents, information, or other content appearing in the Services. If changes permitted by this Section 4.3 have a negative material impact on the features available to Customer and its Users, Customer may terminate the 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.

4.4. 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 Users. Customer shall 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 15.7).

4.5. 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 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 keep confidential and do not disclose to any third parties any user identifications, account numbers, or account profiles. Customer shall be responsible for the compliance of its Users with Customer’s travel expense and payment policies, including but not limited to in-policy selection of travel options by Users, proper use of Customer’s corporate credit card(s) by Users, and proper submission and substantiation of expenses by 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.

4.6. Illegal Use of Services. Customer shall 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, if: (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) 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.

4.7. Data Maintenance and Backup. The TripActions Services are not intended to be a data warehouse or data back-up solution for Customer. 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, 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 Users, locations, travel dates, and other search and profile elements.

5.2. Travel Services. Through the Booking Services, Customer and its 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 User, Customer and the User authorize TripActions to submit certain information, including the name and other personal information of the 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 User’s purchase of an airline ticket, TripActions may provide the 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 User, and (ii) the use of Travel Services will be subject to Customer’s and Users’ compliance with applicable law. Customer and its 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 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 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, 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 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 User. TripActions has no liability to Customer or its Users and will make no refund in the event that any delay, cancellation, overbooking, strike, Force Majeure Event, or other cause impacts any Travel Services.

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

5.4.1. Definitions. “Price to Beat” means the target cost of a particular travel option, as determined by the Algorithm, as displayed in the Booking Services. “Reward-Eligible Booking” means a travel option (e.g., flight, hotel, car rental) that is purchased and actually used by a 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)). “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. “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 User as a personal reward via the TripActions Rewards Program. Reward Points accrue to the User upon the User’s completion of travel for the Reward-Eligible Booking. “Reward Program Funds” means the aggregate accrued Reward Points for all Users. “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 Users in exchange for Reward Points..

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 Users. Customer is solely responsible for the cost of the Reward Program Funds, and any redemption of Reward Points by a User is subject to Customer‘s payment of the applicable Reward Program Funds. A Management Fee (as described in Section 7.3 below) will apply to any payment of Reward Program Funds via a method other than ACH Auto-Debit.

5.4.3. 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 Users under the TripActions Reward Program, including, but not limited to, preparing applicable Forms W2 and Forms 1099-MISC for Users.

5.4.4. 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.

6. PAYMENT AND EXPENSE SERVICES

If Customer elects to purchase any TripActions Liquid Services, the terms in this Section 6 will apply (except as noted below).

6.1. Customer Onboarding. Customer will provide complete and accurate information to TripActions necessary to establish an account with the applicable PSP that will facilitate TripActions' provision of the TripActions Liquid Services. Customer authorizes TripActions to share such information and transaction data with such PSP. TripActions will provide a secure transmission method to collect and share this information.

6.2. 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. Spend Limit(s) and Adjustments. Customer’s account for TripActions Liquid Services will be subject to a Spend Limit, which TripActions will set in its sole discretion. If Customer is purchasing TripActions Liquid EUR/GBP Services, Customer may have a separate Spend Limit for each currency (USD, EUR, and/or GBP, as applicable). Customer’s initial Spend Limit is indicated in the applicable Service Order or a notice provided after TripActions evaluates Customer's application to receive Services. TripActions may adjust any Customer Spend Limit in its sole and reasonable discretion, with written notice to Customer. If Customer reaches 75% of any Spend Limit, TripActions will notify Customer. If Customer reaches 80% of any Spend Limit, TripActions will again notify Customer and may require Customer to pay down a portion of the balance, calculated based on Customer’s projected spending for the remainder of the current spend period. Customer may request, in writing, an increase in any Spend Limit, which TripActions may accept or decline in its sole and reasonable discretion. TripActions may suspend providing the TripActions Liquid Services if and when (i) Customer reaches any 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 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 TripActions Liquid 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 third-party 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 agrees that TripActions may save such bank account information and that payments for Charges shall be made in accordance with the payment method indicated on the applicable Service Order, and with this Section 6.

6.6. Invoicing and Payment. Each month, TripActions shall provide a statement to Customer listing the Charges due for the prior month’s activity. 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. Payment terms for all Charges are set forth in the applicable Service Order. All Charges will be paid by bank transfer, in the currency indicated in the applicable Service Order.

6.7. Customer Rebate. This Section 6.7 does not apply to Liquid EUR/GBP Services. 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 month by multiplying the Customer Rebate Percentage (indicated in the Service Order) by Customer’s Eligible Rebate Spend during the month. “Eligible Rebate Spend” means Customer’s total spend using TripActions Liquid payment methods, where the card is issued in USD and the transaction’s local currency is in USD. Eligible Rebate Spend excludes spend made in other 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 month. 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. Upon expiration or termination of this Agreement (or any applicable Service Order), TripActions will issue a check or initiate a bank transfer for any then-current Rebate amount, after all outstanding Charges have been paid. Customer shall not be entitled to any unused Rebate amount if this Agreement is terminated due to material breach by Customer.

6.8. Suspension of TripActions Liquid Services. TripActions may immediately suspend Customer’s access to TripActions Liquid Services in the event that (i) either the PSP 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 the Agreement, including the PSP 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. If TripActions suspends the TripActions Liquid Services and Customer subsequently cures, to TripActions’ satisfaction, the reason for the suspension (or the cause of the suspension is otherwise resolved), TripActions will promptly restore Customer’s access to the TripActions Liquid Services.

7. PAYMENTS; TAXES; RIGHT TO DISPUTE PAYMENTS

7.1. Payment of Fees. 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 (if applicable). Customer is responsible for maintaining complete and accurate billing and contact information and notifying TripActions of any changes to such information.

7.2. Payment by Bank Transfer. Where Customer makes any payment by bank transfer (as will be indicated in the Service Order), Customer shall maintain sufficient funds or credit in its designated account(s) to cover and timely make such payments, and shall direct its financial institution to authorize such payments. Customer shall reimburse TripActions for any bank charges incurred by TripActions if a payment is denied due to insufficient funds. The parties shall follow the process required for each payment method. For example:

7.2.1. For payments made by ACH Credit, TripActions shall provide an invoice to Customer in advance of the payment due date and Customer shall initiate payment to TripActions from its bank account to cover the payment due, on or before the due date.

7.2.2. For payments made by ACH Auto Debit, TripActions shall provide an invoice to Customer in advance of the payment due date and TripActions will then initiate a debit transaction on the designated account on the payment due date. Customer’s selection of ACH Auto-Debit constitutes Customer’s authorization for TripActions to initiate such debit transactions. TripActions may draw or transmit funds to its own order for any payments.

7.3. Management Fee. For certain services or features, TripActions’ preferred payment method is ACH Auto-Debit. Customer may, however, elect to use Auto-Credit or another payment method for such payments; provided, however, that TripActions will charge a service fee (the “Management Fee”). Any such Management Fee will be specified in the Service Order and will be payable using the same payment method, and on the same payment terms, as the underlying payment amount.

7.4. 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.

7.5. Local Currency. All Fees will be billed and charged in USD unless otherwise stated in the Service Order. Trip Fees will be invoiced in the currency indicated on the applicable Service Order. Any currency conversion required for Trip Fees 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. All currency conversions will be made using exchange rates listed publicly on the OANDA service.

7.6. Late Payments. If TripActions is unable to obtain payment of any Fees or Charges via the payment information on file or if payment of Fees or Charges is otherwise overdue, TripActions may, in its discretion: (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; (ii) debit from Customer’s Reserve Amount, if applicable; and/or (iii) suspend Customer’s access to the Services if Fees or Charges remain overdue after reasonable notice (no less than fourteen (14) days for Fees; no less than three (3) days for Charges) is provided to Customer. Except as otherwise set forth in an applicable Service Order, Fees and Charges are non-refundable.

7.7. Disputed Fees or Charges. TripActions shall not pursue its rights under Section 7.6 with respect to Fees or Charges that are under a reasonable, good faith dispute which Customer is cooperating diligently to resolve. Customer may dispute any Fees or Charges by contacting ar@tripactions.com within thirty (30) days after the Fees or Charge are invoiced or are posted to Customer’s account (as applicable). TripActions will review the dispute and address the disputed item(s) in its reasonable discretion. Fees and Charges not disputed within the thirty-day period shall be deemed to have been agreed to by Customer.

8. OWNERSHIP.

8.1. TripActions Property. 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 third-party licensors, including visual interfaces, graphics, design, compilations, computer code (both source code and object code), and all other elements of the Services, Site, App, and Software. TripActions reserves all rights to the foregoing not expressly granted in the Agreement.

8.2. Customer Feedback. If Customer or its 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 Users. Customer shall have no intellectual property right in the Services as a result of TripActions’ incorporation of Feedback into the Services.

9. CONFIDENTIALITY AND SECURITY.

9.1. Confidentiality Obligations. During the Term of the 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 the 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 the 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.

9.2. Post-Termination Obligations. 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 the 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 the Agreement.

9.3. 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 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 Breach Costs related to a Security Incident to the extent such costs are due to the negligence, willful misconduct, or fraud by Customer or its Users.

10. WARRANTY AND DISCLAIMER

10.1. Warranty for Services. TripActions warrants that it shall provide the Services in a professional and workmanlike manner, in material compliance with the terms of this Agreement, applicable industry standards, and 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 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 the 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 User in violation of the Acceptable Use Policies described in Section 4.5, including but not limited to a 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 the 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, 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 the 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 the Agreement shall be construed to comply with such applicable law.

11. TERM AND TERMINATION

11.1. Term. The term of the Agreement shall be as set forth in the applicable Service Order (“Term”). The Agreement shall commence on the date set forth in the Service Order (or, if no Service Order is in place, then on the date that TripActions notifies Customer that it has approved Customer to begin using the Services) and shall continue until it expires or is earlier termination as provided in the 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. TripActions reserves the right to increase any Fees upon automatic renewal, provided the increase is not more than five percent (5%) per annum. 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 notice of non-renewal.

11.2. Termination for Breach. If either party commits a material breach of its obligations in the 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 the 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 the 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.

11.3. Termination for Insolvency. Notwithstanding anything set forth above, either party may terminate the 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.

11.4. Rights and Obligations Upon Expiration or Termination. In no event shall any termination or expiration relieve Customer of the obligation to pay any undisputed Fees or Charges payable to TripActions for the period prior to the effective date of termination or expiration. Provided TripActions is not terminating for cause under Section 11.2 and upon Customer’s request, TripActions will reasonably cooperate with Customer in a wind-down of Services prior to termination of a Service or of the Agreement. Customer shall be responsible for downloading any Customer Data and/or reporting available within the Services prior to the date of expiration or termination. Upon expiration or termination of the Agreement, (i) Customer’s and Users’ right to access and use the Services shall immediately terminate, (ii) Customer and its 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 with Section 9.

11.5. 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 (Governing Law; 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 User’s use of the Services in a manner that violates Sections 4.4, 4.5, or 4.6; (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); (iii) arising out of Customer’s gross negligence, willful misconduct, or fraud; or (iv) arising out of Customer’s breach of PSP 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’ gross negligence, willful misconduct, or fraud; or (iii) arises out of TripActions’ breach of its agreements with a PSP, 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) with respect to a claim described in Section 12.2(i) above, 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: (1) the Agreement; or (2) instructions provided to Customer by TripActions, so long as they are reasonable and consistent with the terms of the Agreement.

12.3 Infringement Claim Remedies. 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 the 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 third-party 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 the 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. If the Agreement has been in effect for less than 12 months, the actual total Fees paid or payable shall be prorated.

13.3 Exceptions. Sections 13.1 and 13.2 shall not apply to: (i) TripActions’ obligation to pay Breach Costs (as defined in Section 9.3); (ii) either party’s indemnification obligations as provided in Section 12; or (iii) either party’s confidentiality obligations under Sections 9.1 and 9.2 (collectively, “Excluded Damages”). With respect to Excluded Damages, in no event shall either party’s aggregate liability to the other party exceed five (5) times the total Fees paid or payable in the twelve-month period preceding the claim or action, regardless of the form or theory of the claim or action. If the Agreement has been in effect for less than 12 months, the actual total Fees paid or payable shall be prorated. In addition, Sections 13.1 and 13.2 shall not apply to Customer’s obligation to pay any Fees or Charges owed.

14. GOVERNING LAW; DISPUTES

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

14.2 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.

14.3 Agreement to Arbitrate. TripActions and Customer agree to resolve any claims relating to the 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.

14.4 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 the Agreement; or (ii) for equitable relief as described below. TripActions and Customer hereby consent to exclusive jurisdiction in such courts.

14.5 Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or Intellectual Property Rights provisions of the 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. GENERAL

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

15.2 Notices. Any notices provided by TripActions under the 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.

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

15.4 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 affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

15.5 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.

15.6 Relationship Between the Parties; No Third Parties. Nothing in the 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. The Agreement is for the sole benefit of the signatories and is not intended to benefit any third party. Only the parties may enforce the Agreement.

15.7 Assignment/Successors. Neither party may assign or transfer the 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 15.7 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, the Agreement shall inure to the benefit of the successors and permitted assigns.

15.8 Entire Agreement. The Agreement, together with 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 the Agreement.

15.9 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.

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