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.