TripsCash - Travel Partner Program

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Terms and Conditions:	BACKGROUND WHEREAS, TripsCash provides on-line travel information and booking services as further described in Exhibit A attached hereto and incorporated herein by reference ("Reservation Services") and maintains and licenses from third parties databases ("Databases") of information relating to hotels, car rental, dynamic packaging, and other travel-related products and services; and WHEREAS, Customer desires to extend to its end-users (the "End Users") access to the Reservation Services through one or both of the following: (i) a link (the "Link") to a web site hosted by TripsCash that allows Customer to send search requests to, and receive travel-related data (the "Retrieved Data") from, TripsCash's servers (or those of its affiliated entities or any available third party suppliers). NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the Parties agree as follows: AGREEMENT 1. Reservation Services. Subject to the terms and conditions contained in this Agreement, and solely for purposes providing End Users with access to the Databases, Retrieved Data and Reservation Services to view, make or cancel reservations through a Web Page (as defined below), TripsCash hereby grants Customer a non-transferable, non-exclusive, limited, revocable right and license to (a) publicly display the Link, (b) access, publicly display and use the Retrieved Data and Reservation Services, and (c) if applicable, use the Interface and related documentation. Customer shall participate in the Reservation Services accompanied by a checkmark on Exhibit A or are subsequently checked by Customer by logging into its account via the Affiliate Back Office. The Reservation Services may be updated by TripsCash from time to time. All reservations requested by the End Users are subject to acceptance by TripsCash in accordance with TripsCash's policies then in effect. By entering into this Agreement, Customer also agrees to the terms and conditions of the Pegasus Systems, Inc. Agreement as set forth in Exhibit B. 2. Web Pages. The term "Web Page" shall mean each of the web pages of Customer corresponding to the Uniform Resource Locator ("URL") listed in the "Customer Information" section above. Customer agrees to promptly notify TripsCash in writing or via the Affiliate Back Office of any change of such URLs. 3. Customization. The Web Site may be accessed by End Users through the Link and shall consist of custom web pages addressable as a separate directory under the URL www.tripscash.com or such other URLs that TripsCash may establish from time to time. Customer shall be responsible for providing any desired Customer Content to TripsCash. "Customer Content" means any and all headers, footers, trademarks, service marks, logos, copyright materials, designs, artwork and any other content provided by Customer to TripsCash for inclusion on the Web Site. After receipt of Customer's complete Customer Content, TripsCash will make the Web Site and Link available. TripsCash may provide additional customization services for customer with respect to the Web Site on such terms and for such compensation as the Parties may mutually agree in writing. 4. Compensation. TripsCash shall pay Customer commissions. 5. Exclusivity; Marketing. The Customer agrees that the Reservation Services shall be the exclusive on-line hotel, last minute packages, air, and packaging reservation service. Customer further agrees to place the Link and/or the Retrieved Data in a prominent position on the Web Pages, and to use commercially reasonable efforts to promote the Web Site. 6. Use Intellectual Property. 6.1 Customer hereby grants to TripsCash a royalty-free, worldwide, non-exclusive and revocable license, during the term hereof, to use the Customer name and any associated trademarks, service marks, or logos (collectively, "Customer Marks") on the Web Pages and to publish on the Web Pages the Customer Content to be provided by Customer hereunder. In the event that TripsCash uses any Customer Mark or Customer Content for promotional purposes, TripsCash agrees to provide prior notice to Customer of such use. 6.2 The use by TripsCash of the Customer Marks and Customer Content in any manner not expressly permitted herein is prohibited unless otherwise approved in writing in advance by Customer. Other than as expressly provided in this Agreement or unless otherwise agreed to in writing by Customer, Customer does not grant any right to license, use, copy, lease, sell, publicly display, publicly perform, distribute, modify, sublicense or otherwise transfer any portion of the Customer Marks or Customer Content. 6.3 With the sole exception of any artwork, marks, content or other intellectual property provided by Customer to TripsCash for inclusion on the Web Site, all rights, title, and interest, including, without limitation, any and all copyright, patent, trade secret, trademark and other intellectual property rights in and to the Link, Web Site, Databases, Retrieved Data, Interface (and related documentation), the Reservation Services and all content TripsCash creates in connection with the Link or Web Site under United States law and any foreign laws shall remain in TripsCash or its respective owner or supplier where applicable. All rights, title and interest, including without limitation, any and all copyright, patent, trade secret, trademark and other intellectual property rights in and to any and all artwork, marks, content, Customer Marks or other Customer Content provided by Customer to TripsCash under this Agreement shall remain in Customer or its respective owner or supplier where applicable. Without limiting the generality of the foregoing, Customer agrees not to modify the substance of any Retrieved Data; provided, however, that Customer may modify the presentation of the Retrieved Data solely for placement on Customer's Web Pages and in a manner that is consistent with this Agreement. Customer agrees not to use any Retrieved Data (including, without limitation, TripsCash's Destination Guides) in any Web Page that does not use the Reservation Services or in any other portion of Customer's business that uses a booking tool other than the Reservation Services. Customer agrees that it will not create, utilize, participate in or knowingly permit the occurrence of non-manual repetitive search requests of the Databases, Retrieved Data or Reservation Services. 6.4 Each Party acknowledges and agrees that in addition to any other right the other Party may have at equity or law, each party shall be entitled to petition for an injunction to prevent any unauthorized use by the other Party of (i) in the case of TripsCash, the Web Site, Databases, Link, Interface, Retrieved Data or any intellectual property or proprietary information of TripsCash and (ii) in the case of Customer, the Customer Content, Customer Marks, or any other intellectual property or proprietary information of Customer. 7. Advertising. Customer shall have the exclusive right to sell advertising on the Web Site and to collect and retain all proceeds therefrom. Customer agrees to assume full responsibility for all Customer Content and representations of any such banner advertising. 8. No Offensive Content or Conduct. 8.1 Each party agrees to abide by all local, state, national and foreign laws in connection with the performance of its rights and obligations under this Agreement. 8.2 Customer agrees to assume full responsibility for all content, images, third party links and representations on its web sites and Web Pages. Customer covenants and agrees that (a) its web sites and Web Pages shall not contain any content that promotes or engages in illegal activities, is sexually explicit, obscene, violent or otherwise deemed offensive, or is libelous or invasive of another's privacy ("Offensive Content"); (b) it shall not use URLs or transmit any material through or on the Link, Web Site, Web Pages or its web sites that may infringe the intellectual property rights of a third party; (c) it shall not knowingly transmit any material that contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, and cancelbots; (d) it shall not hack into or otherwise knowingly harm the Web Site, any Web site of TripsCash or its suppliers, or any servers or networks connected to the Web Site, Reservation Services or Retrieved Data, (e) it shall not engage in any illegal or unethical search engine optimization practices, (f) it shall obtain all content on its Web Pages in a lawful manner, and (g) it shall comply with all of TripsCash's requirements posted on TripsCash's Web site, or otherwise communicated to Customer by TripsCash. 8.3 TripsCash covenants and agrees that (a) the Web Site, and to TripsCash's knowledge, the Databases and Retrieved Data, shall not contain any Offensive Content; (b) it shall not use URLs or transmit any material from the Web Site and to TripsCash's knowledge, the Databases or Retrieved Data, to the Web Pages that may infringe the intellectual property rights of a third party; (c) it shall not knowingly transmit any material from the Web Site, Databases or Retrieved Data to the Web Pages that contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, and cancelbots; or (d) it shall not hack into or otherwise knowingly harm the Web Pages, any web site of Customer or any servers or networks connected to the Web Pages. 9. Liability for Errors. Customer using the Interface shall assume full responsibility for any reservation errors or any other errors that are caused by any acts or omissions of Customer (or on Customer's behalf by a third party other than TripsCash or TripsCash's agents) including, without limitation, any technical or programming errors in the Interface. If TripsCash incurs any expenses resulting from such errors or in remedying such errors (including, without limitation, expenses paid by TripsCash to its third party suppliers for booking errors), Customer agrees to fully reimburse TripsCash for all such expenses. 10. 11. Credit Card Rules and Policies. Customer using the Interface hereby agrees that in connection with all credit card transactions relating to the Reservation Services or on its Web Pages, it shall comply with the credit card transaction rules and policies set forth in Exhibit C attached hereto and incorporated herein by reference. Each Party agrees that it shall not, directly or indirectly, engage or participate in or otherwise be involved in any type of credit card fraud. 12. End Users. Use of the Web Site or Web Pages by End Users is governed by the posted privacy policy and any applicable terms and conditions (including, for example, cancellation and refund policy) specific to the particular Reservation Service ("T&Cs"). Customer shall not modify any T&Cs that relate to the products and/or services being sold via any particular Reservation Service without TripsCash's prior written approval. Customer shall own all personally identifiable information of End Users (such as End Users' names, addresses, and credit card billing information) collected by Customer or TripsCash through the Reservation Services or Web Site ("End User Information"), and the Parties acknowledge that all such End User Information being collected is being collected on behalf of and for the benefit of Customer; provided that TripsCash shall have the right to use such End User Information in processing the underlying transaction and for related recordkeeping. Each Party shall be fully responsible for compliance with its privacy policy and the T&Cs. 13. Confidentiality. Each Party hereby agrees to protect the other Party's confidential information that comes into its possession, from improper use and unauthorized disclosure to third parties, utilizing the same degree of care such Party uses to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care. An example of TripsCash's confidential information includes, but should not be construed to be limited to, TripsCash's software, specifications, code and documentation relating to the Interface. An example of Customer's confidential information includes, but should not be construed to be limited to, End User Information. Each Party further agrees to use the confidential information only for the purposes authorized in this Agreement and to not disclose the same to any third party, other than for such purposes. Notwithstanding anything in this Agreement to the contrary, TripsCash may provide End User Information of any customer to the particular vendor, publisher, or supplier of any product or service ordered by such customer and to any third party intermediary who requires such End User Information to fulfill or otherwise process the transaction underlying such order, or to provide fraud analysis, billing, delivery, or storage services related to such transaction. The Customer agrees that if any owner or current employee of Customer is a former employee of TripsCash, Customer will not use or disclose any confidential and/or proprietary information regarding TripsCash's business strategies, work processes or customers that was learned or discovered during the course of employment with TripsCash. 14. Term. Unless sooner terminated in accordance with the terms set forth in this Agreement, the term of this Agreement shall begin as of the Effective Date hereof and shall continue for a period of one year. The term of this Agreement shall be automatically renewed for successive periods of one year each unless terminated by either party at least thirty (30) days before the end of the initial term or any successive term thereafter. 15. Termination. TripsCash may terminate access to all or any portion of the Reservation Services immediately and without prior notice upon termination of any agreement with TripsCash's suppliers. Further, TripsCash may suspend or terminate the Agreement, access to all or any portion of the Reservation Services and/or the licenses granted herein immediately and without prior notice in the event that (a) Customer fails to produce a minimum of 20 fulfilled hotel or air bookings per month for three (3) consecutive months at any time after an initial three (3) month period from the Effective Date (b) Customer has failed to implement the Reservation Services, on the Web Pages by a date that is ninety (90) days after the Effective Date, (c) Customer is acquired by or becomes controlled by an Ineligible Company, (d) TripsCash determines, or a third party alleges, that (i) Customer or any web site owned or controlled by Customer infringes the intellectual property rights of any third party or violates any provision in Section 6 (Use of TripsCash's Intellectual Property), 8 (No Offensive Content or Conduct), 11 (Credit Card Rules and Policies), 12 (End Users), or 13 (Confidentiality), (ii) Customer knowingly violates any provision in this Agreement, or (iii) Customer uses or permits the use of the Interface, Retrieved Data, Databases or Reservation Services for any improper or illegal purpose or any purpose not authorized by this Agreement. For purposes of Section 15(c) above, an "Ineligible Company" means TravelNow, Hotels.com, IAN, WWTE, IAC, lodging.com, Hotel Club, Orbitz, Cendant, WorldRes, and any other entity controlling, controlled by, or under common control with the foregoing. In addition, either Party will have the right to terminate this Agreement after a material breach of the Agreement by the other Party which breach has not been cured thirty (30) days after the date that the breaching Party received written notice from the other Party of the breach or in the event described in Exhibit A. 16. Representations and Warranties. Either party represents and warrants that it has the right, power and authority to enter into this Agreement and to perform all of its respective obligations under this Agreement and that the performance of such obligations shall not conflict with or result in a breach of any agreement to which it is a party or is otherwise bound. Customer further represents and warrants that (a) it owns or possesses all rights and licenses to use, copy, display and distribute any and all of Customer Content; and (b) it shall not make any representations or warranties to End Users about the Reservation Services, Retrieved Data, Databases, Link or Interface, other than those expressly authorized by TripsCash in writing. If an individual, Customer represents and warrants that he or she is at least 18 years old. 17. Disclaimer of Warranties. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, EACH PARTY MAKES NO, AND HEREBY EXPRESSLY DISCLAIMS ALL, WARRANTIES, REPRESENTATIONS AND CONDITIONS IN CONNECTION WITH THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR TITLE. EACH PARTY MAKES NO WARRANTY THAT THE RESERVATION SERVICES, THE WEB SITE, THE LINK, THE WEB PAGES, OR THE DATABASES WILL BE CONTINUOUSLY AVAILABLE OR ERROR-FREE OR COMPLETELY SECURE, OR THAT ANY DEFECTS IN THE RESERVATION SERVICES, THE WEB SITE, THE LINK, THE WEB PAGES, OR DATABASES WILL BE CORRECTED. 18. Indemnification. Customer agrees to indemnify TripsCash, its parents, subsidiaries, affiliates and suppliers and their successors and assigns against and hold them harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys' fees and experts' fees, resulting directly or indirectly from: (a) any portion of the Customer Content; (b) breach of any representation, warranty or covenant contained in this Agreement or in TripsCash's applicable published policies; (c) a violation by Customer of any applicable law, rule or regulation; (d) a violation of Section 6 (Use of TripsCash's Intellectual Property), 8 (No Offensive Conduct), 11 (Credit Card Rules and Policies), 12 (End Users) or 13 (Confidentiality); (e) any reservation or other error caused by Customer or its Interface; (f) improper use or application of the Web Site, Databases, Link, Interface, Retrieved Data or Reservation Services. The indemnity obligations hereunder shall survive the termination of this Agreement. 19. Limitation of Liabilities and Risk of Internet Usage. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS IN SECTION 18, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY NATURE, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST PROFITS, OR LOSS OF DATA OR USE, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF ANY PARTY AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY. 20. Compatibility; Updates. Customer acknowledges and agrees that it shall be solely responsible for determining whether its systems are compatible with the Interface, for providing all software necessary for use thereof and for all maintenance of its systems. 21. Modification of Reservation Service Programs. TripsCash may add, delete or otherwise modify any of the Reservation Services. If any material modification is unacceptable to Customer, Customer may (a) refuse (if feasible or practicable as reasonably determined by TripsCash) the portion of the Reservation Services affected by the modification, or (b) if refusal is not feasible or practicable as reasonably determined by TripsCash, terminate the Agreement, by notifying TripsCash in writing within ten (10) days after receipt of notice of such modification. Customer's failure to act within such ten (10) days period shall constitute Customer's binding acceptance of the modification. In the event of a modification of any Reservation Service, the Web Site or the Interface that would require a critical change (as determined by TripsCash) in Customer's web site, Customer agrees to make such critical change within 30 days of receiving notice from TripsCash, and the failure to make such change in a timely manner shall be a material breach of this Agreement. Without limiting the foregoing, and by way of example, a material change would include changes required to be implemented by XML customers, such as changes required in processing card transactions. 22. Force Majeure. Neither TripsCash nor Customer will be liable for any delay or failure in performance under this Agreement due to any cause beyond its reasonable control. 23. Governing Law, Jurisdiction and Venue. This Agreement and all matters or issues related to this Agreement shall be governed by and construed under the laws of the State of Florida without application of principles of conflicts of laws. Each of the Parties irrevocably and unconditionally agrees that any legal proceeding arising out of or relating to this Agreement may be brought in the United States District Court for the Southern District of Florida, West Palm Beach Division, or, if that court lacks jurisdiction, in any court of competent jurisdiction in Palm Beach County; and (b) consents to the jurisdiction of each such court in any proceeding. 24. Assignment. Customer may not assign or sublicense, by operation of law or otherwise, this Agreement or any duties, rights or obligations under this Agreement without TripsCash's prior written consent. For purposes of this provision, a change of control or management, sale of all or substantially all of Customer's assets, or sale of stock constitutes an assignment. Notwithstanding the foregoing, either party may assign this Agreement or the rights, duties or obligations under the Agreement to any of such Party's Affiliates, without the consent of the other party. For purposes of the foregoing sentence, an "Affiliate" shall mean a person or entity, directly or indirectly, controlled by, controlling, or under common control with, a Party. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. 25. Severability; No Waiver. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, then such provision shall be construed, as nearly as possible, to reflect the intentions of the Parties with the other provisions remaining in full force and effect. The failure of either party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision, unless such waiver is in writing and is executed by the Party against whom such waiver is claimed. 26. Notices. Any notice required or permitted under this Agreement shall be given in writing and shall be delivered: (i) by hand delivery; (ii) by facsimile (with written confirmation of delivery; (iii) by overnight express mail; or (iv) certified or registered U.S. mail (with postage paid and return receipt requested). Notices shall be effective, in the case of (a) hand delivery or facsimile transmission, upon receipt, (b) overnight express mail, on the next business day after timely delivery to a recognized overnight delivery service, and (c) U.S. mail, upon the third business day after deposit with the U.S. postal service. Notices shall be delivered to each Party at its respective facsimile number or address specified in this Agreement, or at such other facsimile number or address as such Party may specify by written notice to the other. 27. No Agency or Third Party Beneficiary. Customer and TripsCash are independent contractors, and nothing in this Agreement shall be construed to create a partnership, joint venture, franchise, or agency relationship between Customer and TripsCash. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party. TripsCash and Customer agree that there should be no third party beneficiary to this Agreement, including, but is not limited to, End Users. 28. Miscellaneous. This Agreement, along with the attached Exhibits, constitutes the entire agreement of the Parties with respect to its subject matter, superseding all prior or contemporaneous oral and written communications, proposals, negotiations, representations, understandings, courses of dealing, agreements, contracts, and the like between the Parties in such respect. The section headings in this Agreement are for convenience only and have no legal or contractual effect. This Agreement: (i) may be executed in any number of counterparts, each of which, when executed by both Parties to this Agreement shall be deemed to be an original, and all of which counterparts together shall constitute one and the same instrument; and (ii) may not be amended or modified by Customer unless such amendment or modification is in writing signed by both parties. The terms of any sections that, by their nature, are intended to extend beyond termination shall survive termination of this Agreement for any reason. THIS AGREEMENT is a binding contract between Customer and TripsCash. Printable Version
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