TripActions Terms of Service
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 an Authorized User (as defined below) may access the Subscription Services.
1.3.“Authorized User” means an employee, advisor, or agent of Customer that has (i) been assigned a unique username-password combination to access and use the Subscription Services, and (ii) downloaded and registered through the App or the Site to access and use the Subscription Services.
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 data input into and/or stored by the Subscription Services by or for Customer or Authorized Users, including data and information about Customers employees who use the Subscription Services as Authorized Users, including Shared Information (defined in Section 3.5).
1.6.“Implementation Services” means any services performed by TripActions to configure and rollout the Subscription Services to Customer, as described in an applicable Service Order.
1.7.“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.
1.8.“Service Order” means an order for Subscription Services mutually agreed between the parties, which incorporates this Agreement by reference.
1.9.“Site” means the TripActions website located at www.tripactions.com.
1.10.“Software” means any TripActions or third-party software used by TripActions to provide the Implementation Services and/or Subscription Services.
1.11.“Subscription Services” means the online and hosted services provided by TripActions through the App or Site, including searching and booking travel services.
- ACCOUNT; IMPLEMENTATION
2.1.Employer Account. To access the features of the Subscription Services, Customer must register for an account (the “Employer Account”) on the TripActions Site and App. Except for a breach of TripActions’ obligations hereunder or acts by TripActions, Customer is solely responsible for maintaining the confidentiality of its account and password and Customer agrees to accept responsibility for all activities that occur under its account. 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 5.1, TripActions will provide any applicable Implementation Services as described in a Service Order entered into between the parties.
3.SUBSCRIPTION SERVICES 3.1.Subscription Services. Subject to Customer’s compliance with this Agreement and applicable law, commencing on the date you begin using the Subscription Services, or the date set forth in the Service Order, as applicable, and continuing until such time as Customer cancels the Employer Account or this Agreement is otherwise terminated hereunder, TripActions will provide the Subscription Services in accordance with this Agreement. Customer may access and use the Subscription Services solely for its internal business purposes and such access and use is expressly limited to the Authorized Users of Customer.
3.2.Restrictions. Customer shall not attempt to interfere with or disrupt the Subscription Services or the Software or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Subscription Services). Customer shall not allow access to or use of the Subscription Services by anyone other than Authorized Users. Customer shall not: (a) copy, modify or distribute any portion of the Subscription Services or Software; (b) rent, lease, or provide access to the Subscription Services on a time-share or service bureau basis; or (c) transfer any of its rights hereunder (except as specified in Section 13.8).
3.3.Acceptable Use Policies. Customer acknowledges and agrees that TripActions does not monitor or police Customer Data, including communications or data transmitted through the Subscription Services and that TripActions shall not be responsible for the content of any such communications or transmissions. Customer shall use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Customer shall not use the Subscription Services to transmit any bulk unsolicited commercial communications. Customer shall, and shall ensure that its Authorized Users, keep confidential and not disclose to any third parties any user identifications, account numbers and account profiles. Customer acknowledges that the Subscription 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. Customer shall not use the Subscription Services for such purposes or under such circumstances.
3.4.Data Maintenance and Backup Procedures. 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. TripActions shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by any third party. TRIPACTIONS’ EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 3.4 SHALL CONSTITUTE TRIPACTIONS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA.
3.5.Third Party Services. Through the Subscription Services, Customer and its Authorized Users may receive services (“Third Party Services”) from third party services providers (“Service Providers”). TripActions is not responsible for Third Party Services or any material, information or results available through Third Party Services and Customer acknowledges and agrees that (i) the applicable Service Providers may require Customer and the Authorized Users to agree to terms and conditions or agreements with respect to their provision of the Third Party Services to Customer and Authorized Users, including, without limitation, terms and conditions for booking airline travel, set forth in an air carrier’s fare rules or contract of carriage and (ii) use of the Third Party Services will be subject to Customer’s and Authorized Users’ compliance with applicable law. Customer and its Authorized Users shall be solely responsible for, and assume all risk arising from, the selection, use and receipt of any Third Party Service. If Customer or its Authorized Users receive a Third Party Service, Customer authorizes TripActions, when required, to submit to the applicable Service Provider any and all documents and information about Customer and its Authorized Users, necessary for such Service Provider to provide the Third Party Service to Customer and its Authorized Users, including, without limitation, the names and other personal information about its Authorized Users, Customer’s credit card account information, and the credit card account information of its Authorized Users, any required federal, state or local powers of attorney, and any additional information required by the Service Provider (collectively, the “Shared Information”). Customer shall be responsible for the accuracy of all Shared Information it provides to TripActions. Customer represents and warrants that it has all the rights in and to any Shared Information necessary to provide Shared Information to TripActions, and that TripActions’ use of Shared Information as contemplated hereunder will not violate any rights of privacy or other proprietary rights, or any applicable local, state or federal laws, regulations, orders or rules. CUSTOMER AGREES THAT BY ELECTING TO RECEIVE A THIRD PARTY SERVICE, AND CONSENTING AND AUTHORIZING TRIPACTIONS TO SUBMIT ITS SHARED INFORMATION TO A SERVICE PROVIDER, CUSTOMER WAIVES AND RELEASES ANY AND ALL CLAIMS AGAINST TRIPACTIONS ARISING OUT OF A SERVICE PROVIDER’S USE OF CUSTOMER’S SHARED INFORMATION. IN NO EVENT WILL TRIPACTIONS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE LOSS OR DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION OR WHETHER TRIPACTIONS KNEW OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES IN ANY CIRCUMSTANCES, ARISING OUT OF OR RELATED TO A SERVICE PROVIDER’s USE OF CUSTOMER’S SHARED INFORMATION. TripActions participates in no way as a contract partner in any contract entered into between Customer and the Service Provider, and such contracts are third party transactions. The offers presented by TripActions via the Services do not constitute binding contract offers by TripActions or the respective Service Provider.
4.1.Cooperation and Assistance. As a condition to TripActions’ obligations hereunder, 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 Implementation Services and Subscription Services from time to time; and (b) carry out in a timely manner all other Customer responsibilities set forth in this Agreement.
4.2.Marketing Support. Customer grants to TripActions a non-exclusive, non-transferable (except as permitted under Section 13.8), limited right to use the Customer name, trademarks, and logos (collectively, the “Customer Marks”) in the production of marketing materials, provided that such use is in accordance with Customer’s trademark and logo use guidelines that Customer provides to TripActions. TripActions will use its commercially reasonable efforts to cooperate with Customer in monitoring use of the Customer Marks. All goodwill developed from such use shall be solely for the benefit of Customer.
4.3.Enforcement. Customer shall ensure that all Authorized Users acting on behalf of Customer comply with this Agreement, including, without limitation, with Customer’s obligations set forth in Sections 3.2 and 3.3. Customer shall promptly notify TripActions of any suspected or alleged violation of this Agreement and shall cooperate with TripActions with respect to: (a) investigation by TripActions of any suspected or alleged violation of this Agreement and (b) any action by TripActions to enforce this Agreement. TripActions may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to Customer in the event that TripActions reasonably determines that such Authorized User has violated this Agreement. Customer shall be liable for any violation of this Agreement by any Authorized User acting on Customer’s behalf.
4.4.Telecommunications and Internet Services. Customer acknowledges and agrees that Customer’s and its Authorized Users’ use of the Subscription 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 Subscription 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.
4.5.License to Customer Data. The Subscription Services permits Customer or Authorized Users to import and process data, content, and other types of works (collectively, the “Customer Data”). For clarity, Customer Data includes data derived from Customer Data, but does not include anonymous and aggregated metadata associated solely with actions of users of the Subscription Services. By importing or processing Customer Data, Customer grants to TripActions a worldwide, non-exclusive, royalty-free license to reproduce, distribute, modify, and adapt Customer’s Data solely for the purpose of providing the Subscription Services to Customer, including the right to disclose Customer Data to TripActions’ Service Providers solely as necessary to provide the Subscription Services to Customer. TripActions will not use, display, disclose or transfer Customer Data in a manner that specifically identifies Customer or an Authorized User without Customer’s consent, except as otherwise set forth in this Section 4.5. TripActions may use, display, store, disclose or transfer Customer Data as may be required by law or legal process, or to protect TripActions’ rights or property (including without limitation, enforcement of TripActions’ agreements) or the rights, property, or safety of any person or entity.
4.6.Representations and Warranties with Respect to Customer Data. Customer is solely responsible for its Customer Data and the consequences of importing, storing, or processing Customer Data. By importing, storing, or processing Customer Data, Customer affirms, represents, and warrants that:
4.6.1.It is the creator and owner of, or has the necessary licenses, rights, consents, and permissions to use and to authorize TripActions and Authorized Users to use and distribute Customer Data as necessary to exercise the licenses granted by Customer in this Agreement;
4.6.2.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;
5.1.Fees; Late Payment. The Fees are set forth and defined on the applicable Service Order, or, if no Service Order, on the pricing page of the Site. TripActions shall obtain payment of Fees using the method set forth in the applicable Service Order, or on the Site, as applicable, and Customer hereby authorizes TripActions to collect payment in accordance with the selected payment method. 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 the Fees are otherwise overdue, TripActions shall have the right to either (i) suspend Customer’s access to the Subscription Services, and/or (ii) 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. 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. Customer shall 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.
5.2.ACH Bank Transfer. If Customer has selected ACH Bank Transfer as its authorized payment method on the Service Order, then Customer’s account will be debited on the first of each month. Customer hereby agrees to maintain sufficient funds or credit in its account(s) to cover and timely pay any Fees, and authorizes TripActions to initiate and transmit charges and debit entries to Customer’s designated account(s) at the financial institution named in the Service Order (hereinafter “Bank”) for the payment of Fees, and authorizes said Bank to accept and post the entries as transmitted by TripActions. Customer further requests TripActions and the Bank to debit the Fees to Customer’s account without responsibility for the correctness thereof and agrees to accept the debit entries so transmitted. Customer authorizes TripActions and Bank to establish an automatic credit card debit arrangement to pay for the Fees. TripActions may draw or transmit funds to its own order to pay any Fees. Customer understands that there may be a service charge for any charge that is denied due to insufficient funds. Customer shall indemnify and hold TripActions harmless from any and all damages and liability which may arise from its transmittal and presentment of a charge to Customer’s account(s) for its reasonable inability to timely or adequately honor Customer’s subscription to the Subscription Service.
5.3.Taxes. All amounts and fees stated or referred to in this Agreement or any Service Order, 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 and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on TripActions’ net income.
5.4.Local Currency. All Services will be performed and billed by the local entities in the applicable country as set forth in the Service Order. All fees will be invoiced in local currency, and will for such purposes be converted into the applicable local currency as set forth in the Service Order.
5.5.Currency Adjustment. TripActions reserves the right to adjust the pricing in markets due to (i) currency fluctuation or increase in cost structure due to government action or other third party imposed increases, (ii) or changes in payment terms where the payment method is via credit card.
5.6.Changes in Pricing. Should there be any material change in: (a) any laws, ordinances, orders, rules, or regulations governing the way the Subscription Service operates; or (b) travel industry conditions, including, but not limited to, airfares (e.g., net fares or net/net fare arrangements) or compensation to TripActions by action of any industry vendor or governing body; then the Fees will be subject to adjustment to reflect the impact of the change. Any pricing adjustment imposed pursuant to this Section will be effective simultaneously with the change in any of the aforementioned factors. TripActions will notify Customer of any such pricing adjustment in writing and provide reasonable supporting documentation substantiating the basis for the adjustment (“Adjustment Notice”). In each case, Customer shall be entitled to request in writing a good faith renegotiation of the Fees. If upon thirty (30) days from the receipt of such Adjustment Notice, Customer has not requested renegotiation, the respective pricing adjustment shall be deemed accepted by Customer. If upon thirty (30) days from the receipt of such Adjustment Notice, Customer has requested renegotiation, but the Parties remain unsuccessful in renegotiating mutually satisfactory terms, either Party shall have the right to terminate the applicable Service Order, or access to the Subscription Services, as applicable, at any time thereafter with thirty (30) days prior written notice.
6.OWNERSHIP. As between TripActions and Customer, the Subscription Services 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 Subscription Services and Software provided by TripActions (the “Materials”) are protected by all relevant intellectual property and proprietary rights and applicable laws. Except for the Customer Data, all Materials contained in the Subscription 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.
7.CONFIDENTIALITY. During the Term and for a period of five (5) years after expiration or termination 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 as 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 disclosing party must provide (to the extent permitted by applicable law) the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
8.WARRANTY AND DISCLAIMER
8.1.Warranty for Subscription Services. TripActions warrants that the Subscription Services will substantially conform to the functionality set forth herein.
8.2.Customer Use Disclaimer. Customer assumes sole responsibility and liability for its use and its Authorized Users’ use of the Subscription Services. TripActions shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to TripActions by Customer in connection with the Subscription Services or any actions taken by TripActions at Customer’s direction. TripActions shall have no liability for any claims, losses or damages arising out of or in connection with Customer’s or any Authorized User’s use of any material, information or results available through any third-party products, services, software or web sites that are accessed from within the Subscription Services, including Third Party Services.
8.3.Customer Data Disclaimer. Except as otherwise set forth herein, TripActions expressly disclaims any and all liability in connection with Customer Data. TripActions is under no obligation to edit or control Customer Data that Customer imports to or the Subscription 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.
8.4.Third Party Services Disclaimer. TripActions does not guarantee the accuracy of, and disclaims all liability for any errors or other inaccuracies relating to the information and description of the hotel, air, cruise, car, and other travel products and services displayed on the Subscription Services (including, without limitation, the pricing, photographs, list of hotel amenities, general product descriptions, etc.). In addition, TripActions expressly reserves the right to correct any pricing errors on the Subscription Services and/or pending reservations made under an incorrect price.
8.5.Tax Disclaimer. TripActions is not responsible for, and disclaims all liability in connection with any Taxes, including any reporting or withholding obligations.
8.6.Algorithm Disclaimer. Subject to the Service Order, the Subscription Services may determine certain amounts due by Customer or otherwise display prices based upon an algorithm which takes into account, but is not limited to, current market conditions, Customer needs, Authorized User behavior, and other elements (the “Algorithm”). TripActions disclaims any warranty that the Algorithm will be accurate or error-free, or that errors will be corrected. Customer acknowledges that the Algorithm may display different results for different Authorized Users, locations, dates, and other elements.
8.7.TRAVEL DISCLAIMER. BY OFFERING RESERVATIONS FOR TRAVEL PRODUCTS AND SERVICES VIA THE SUBSCRIPTION 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 SERVICE PROVIDERSARE INDEPENDENT CONTRACTORS AND NOT AGENTS OR EMPLOYEES OF TRIPACTIONS. TRIPACTIONS DISCLAIMS ALL LIABILITY RELATING TO THE ACTIONS OR INACTIONS OF SERVICE PROVIDERS OR ANY THIRD PARTY SERVICES, INCLUDING ANY ACTIONS OR INACTIONS THAT RESULT IN ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES. TRIPACTIONS HAS NO LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS AND WILL MAKE NO REFUND IN THE EVENT OF ANY DELAY, CANCELLATION, OVERBOOKING, STRIKE, FORCE MAJEURE OR OTHER CAUSES BEYOND TRIPACTIONS’ CONTROL.
8.8.GENERAL DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, TRIPACTIONS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE IMPLEMENTATION SERVICES OR THE SUBSCRIPTION SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, TRIPACTIONS DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION 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 SUBSCRIPTION 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 THIS AGREEMENT.
8.9.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. THEREFORE, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
9.TERM AND TERMINATION
9.1.Term. The term of the Services shall be as set forth in the applicable Service Order (“Term”). Except as otherwise set forth in a Service Order, this Agreement shall commence on the date you sign a commence using the Subscription Services and shall continue until such time as Customer cancels the Employer Account, unless terminated earlier as provided in this Agreement. Commencement of 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.
9.2.Termination for Convenience. At any time, Customer may terminate this Agreement, effective immediately, by cancelling their Employer Account. Customer may, in its sole discretion, elect to offer TripActions advance notice of any such termination, and if so, TripActions will cooperate with Customer, as reasonably requested by Customer and at TripActions’ standard rates, in a wind-down of services prior to such termination. TripActions may immediately suspend or terminate Customer’s access to the Subscription Services, by written notice to Customer, in the event that (i) TripActions determines on the basis of reasonable evidence that the Subscription 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 terminate or suspend services to Customer. In the event TripActions suspects or anticipates such termination, 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) termination; provided that Customer acknowledges that under certain circumstances such prior notice and/or cure period may not be possible or practical. Upon any termination for convenience by Customer prior to completion of the Term set forth in the applicable Service Order, Customer shall not be entitled to a refund of any prepaid Fees, and shall be required to pay, as liquidated damages and not as a penalty, the difference between the Fees set forth on the Service Order and TripActions’ standard non-discounted rates. 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.
9.3.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 a Service Order, then only such Service Order may be terminated in accordance with the terms herein and the other Service Orders and this Agreement shall continue in full force and effect. In the event of any termination for breach by Customer, Customer shall be entitled to a pro-rated refund of Fees paid until the date of termination.
9.4.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.
9.5.Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, (i) Customer’s and Authorized Users’ right to access and use the Subscription Services shall immediately terminate, (ii) Customer and its Authorized Users shall immediately cease all use of the Subscription Services, and (iii) each party shall return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party, Customer shall pay all reasonable expenses incurred by TripActions in returning Customer Data to Customer. Also upon expiration or termination of this Agreement, TripActions shall cease use of the Customer Marks (as defined in Section 4.2); provided, however, that (a) TripActions shall have a reasonable time to remove the Customer Marks from promotional materials, (b) TripActions shall be entitled to exhaust materials printed during the Term that include the Customer Marks, and (c) TripActions shall not be required to remove any such printed materials from circulation.
9.6.Survival. Upon termination, any provision which, by its nature or express terms should survive, will survive, including, but not limited to Sections 5-7, 9.4, 9.5, and 10-13.
10.1.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, arising out of or in connection with any third-party claim (“Claim”): (i) that a third party has suffered injury, damage or loss resulting from Customer’s or an Authorized User’s use of the Subscription Services (other than any Claim for which TripActions is responsible under Section 10.2) or any Customer Data; or (ii) that Customer or any Authorized User has used the Subscription Services in a manner that violates Sections 3.2 or 3.3 of this Agreement. Customer’s obligations under this Section 10.1 are contingent upon: (a) TripActions providing Customer with prompt written notice of such Claim; (b) TripActions providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such Claim; and (c) Customer having sole authority to defend or settle such Claim. 10.2.Indemnification by TripActions. TripActions shall indemnify Customer from any Claim that: Customer’s authorized use of Subscription Services infringe or misappropriate the Intellectual Property Rights of any third party. TripActions’ obligations under this Section 10.2 are contingent upon: (a) Customer providing TripActions with prompt written notice of such Claim; (b) Customer providing reasonable cooperation to TripActions, at TripAction’s expense, in the defense and settlement of such Claim; and (c) TripActions having sole authority to defend or settle such Claim. In the event that TripActions’ right to provide the Subscription Services is enjoined or in TripActions’ reasonable opinion is likely to be enjoined, TripActions may obtain the right to continue providing the Subscription Services, replace or modify the Subscription 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 SUBSCRIPTION SERVICES. TripActions shall have no liability under this Section 10.2 to the extent that any Claims described herein are based on use of the Subscription Services in a manner that violates this Agreement or the instructions given to Customer by TripActions.
11.LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY 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. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL TRIPACTIONS’ AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES EXCEED THE TOTAL FEES PAID BY CUSTOMER IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
12.1.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. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the County of Santa Clara in the State of California. TripActions and Customer hereby agree to submit to the exclusive jurisdiction of such courts.
12.2.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.
12.3.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 Subscription Services. For notices by e-mail, the date of receipt will be the date on which such notice is transmitted.
12.4.Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
12.5.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.
12.6.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.
12.7.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.
12.8.Assignment/Successors. Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s 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.
12.9.Feedback. If Customer or its Authorized Users submit suggestions, ideas, comments, questions, or post any information through the Subscription 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.
12.10.Changes. TripActions reserves the right to, without materially affecting the functionality of the Subscription Services: (1) discontinue, impose limits on, or restrict access to any aspect of the Subscription 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 Subscription Services.
12.11.Entire Agreement. This Agreement together with the exhibits hereto 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.
12.12.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.
12.13.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.
12.14.Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which shall constitute one and the same instrument.
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