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This Supplier Agreement (the “Agreement”) is by and between you (“Supplier”) and TripsPoint LLC, Albuquerque, USA on its own behalf (named later as “TripsPoint”). All defined terms used herein shall have the meaning accorded to such terms in the Agreement.
By applying for TripsPoint Supplier Account Supplier accepts this Agreement and agrees to the attached TripsPoint Terms and Conditions and the Attachments, all of which are incorporated into this Agreement. If Supplier is entering into this Agreement on behalf of a company or other legal entity, Supplier represents that it has the authority to bind such entity to these terms and conditions, in which case the term “Supplier” shall refer to such entity. Please carefully read the following terms and conditions and do not agree to become a TripsPoint supplier until after doing so. By agreeing to become a TripsPoint supplier and providing Supplier Products for TripsPoint’s resale and distribution through TripsPoint.com website, Supplier agrees to the terms of this Agreement, including without limitation all obligations imposed on Supplier hereunder. If Supplier does not wish to so agree, or does not have the authority to enter into this Agreement, do not register to become a TripsPoint supplier and do not provide TripsPoint with Supplier Products for resale and distribution through TripsPoint.com website.
Overview: Supplier agrees to provide certain tours, activities, holiday accommodations, rental services and other travel-related destination services (“Products”) that TripsPoint may market and distribute through TripsPoint.com website (“website”) for purchase (i.e., booking) by end customers (“Customers”), all as described further in this Agreement. Therefore, for good and valuable consideration, the receipt and sufficiency of which they each acknowledge, TripsPoint and Supplier agree to be bound by the terms and conditions set forth below.
In addition to the “TripsPoint Terms and Conditions” set forth below, the following provisions shall be part of this Agreement:
A. Currency:
All amounts in this Agreement are expressed in the currency selected by Supplier from the list of available currencies presented to Supplier during the TripsPoint online account registration process.
B. Term; Termination:
This Agreement is effective as of the date on which Supplier accepted this Agreement (the “Effective Date”) and will remain in effect thereafter, unless terminated in accordance with this Agreement. Either party may terminate this Agreement (a) upon 30 days’ written notice to the other of its intent to terminate this Agreement, (b) immediately upon written notice to the other if such other party commits an irremediable breach of this Agreement or commits a remediable breach and fails to correct such breach within 15 days following written notice specifying such breach, or (c) immediately upon an event of bankruptcy by Supplier or if Supplier ceases to do business in the ordinary course. Without prejudice to the rights of termination set out hereunder, TripsPoint may elect to immediately take any one or more of the following steps either in lieu of, or as a precursor to, its termination of the Agreement (defined collectively as “Deactivation”): (i) deactivation of Supplier’s TripsPoint account; (ii) removal of Supplier from the Website; and/or (iii) removal of any or all of Supplier’s Product listings. References in this Agreement to rights and obligations of a party in connection with “termination” shall be deemed to include Deactivation, and post-termination obligations shall apply equally to Supplier for the duration of any such Deactivation.
Supplier will fulfil all Product bookings made prior to termination or expiration of this Agreement unless requested otherwise by TripsPoint. Notwithstanding the foregoing, TripsPoint reserves the right in its sole discretion to cancel pending Product bookings in circumstances where TripsPoint believes that it is in the best interests of Customers. Upon any termination or expiration of this Agreement, Supplier will immediately cease all access to and use of the TripsPoint website (defined in Attachment 2) and other products, services, technology, content, and/or materials provided by TripsPoint to Supplier under this Agreement and Supplier shall cease to have any right to make Supplier’s Product listings available through TripsPoint’s website.
C. Attachments. The following attachments to this Agreement (“Attachments”) are incorporated into and made part of this Agreement by this reference:
Attachment 1 – Payment Terms
Attachment 2 – Operational Procedures and Technology
Attachment 3 – Insurance
The parties may mutually agree to and enter into additional written attachments during the Term, and all such attachments shall be executed by a duly authorized representative of each party upon which such attachments will be deemed incorporated by reference into this Agreement and subject to all terms and conditions hereof.
D. Notices:
Unless otherwise provided herein, all notices under this Agreement shall be in writing and shall be delivered to TripsPoint LLC, 2201 Menaul Blvd, NE STE A, Albuquerque, NM 87107, USA and to Supplier at the address provided to TripsPoint during the online account registration process. All such notices shall be deemed to have been given upon receipt. Notwithstanding the foregoing, TripsPoint may provide notices to Supplier via email, in connection with requesting Product rate information from Supplier, or in TripsPoint’s other interactions with Supplier, which notices will be deemed to be given when sent.
1. RATES, FEES, PAYMENTS.
Supplier represents and warrants that the net wholesale rates (“Net Rates”) offered to TripsPoint are the lowest Net Rates offered by Supplier to any distributor of its Products. If Supplier offers Products or enters into an agreement to provide Products through or to a third party (including without limitation through any other distribution channel, such as coupons, deal-of-the-day or flash sale websites) for a lower price or rate or under a lower pricing or rate arrangement or formula (including without limitation for no fee) than the then-current Net Rates provided to TripsPoint, then Supplier will promptly notify TripsPoint and provide to TripsPoint such lower price or rate, or pricing, or rate arrangement, or formula retroactively as of the date first provided to such other third party. If Supplier fails to comply with this provision, TripsPoint shall have the right, in its sole discretion, to either suspend Supplier or terminate this Agreement with fifteen (15) days prior written e-notice (sent through TripsPoint Messenger or/and by email) to Supplier.
For each Product, Supplier will provide TripsPoint the following rates: Net Rate (i.e., net wholesale rate) and suggested retail (public) rate. Net Rates will include all applicable per person or per group fees and all applicable taxes and other charges. Supplier shall be solely responsible for the payment of any and all applicable taxes, including without limitation value added tax, sales and use tax, and any other taxes applicable to the resale of the Products (“Taxes”).
TripsPoint has the right to set the resale price of each Product. The Net Rates provided by Supplier will be valid until such time as (a) Supplier modifies such Net Rates through the TripsPoint website, or (b) where TripsPoint has agreed to permit Supplier to modify Net Rates in any manner other than through use of the TripsPoint website, upon written notice to TripsPoint, delivered in any manner previously approved by TripsPoint. TripsPoint will have up to two (2) weeks to implement any modification to Net Rates regardless of the manner that such modification is effected, and TripsPoint Customers shall pay to Supplier the prior Net Rate for all Product bookings during this time period.
At the time of booking Customer pays to TripsPoint the only difference between Net Rate and Retail (public) Rate as the Booking Deposit ('deposit'). The deposit remains for TripsPoint as the commission and Supplier can not pretend for any part of the Booking Deposit.
TripsPoint's Customers will make all the payments of Net Rates directly to Supplier as the Remaining Balance ('balance') under this Agreement.
Adding a Product Supplier decide what is basic currency for the listing and in which currency the Net Rate must be paid as well as decide what payment methods are accepted (cash or credit car, or both methods).
2. AVAILABILITY; PRODUCT UPDATES.
Supplier will follow the operational procedures set forth in Attachment 2, including without limitation those with respect to Product bookings, changes, and availability, and any updates or revisions to Attachment 2 as may be provided by TripsPoint to Supplier from time to time. TripsPoint will use reasonable efforts to give Supplier at least ten (10) business days’ prior written notice of any updates or revisions to Attachment 2.
For each Product that Supplier offers (including without limitation to any third party through coupons, deal-of-the-day or flash sale websites, or any other distribution channel), Supplier will make that Product available to TripsPoint for marketing and distribution through the website. Supplier will ensure that all Products that TripsPoint markets and distributes through the website are available for booking by Customers, unless TripsPoint receives proper notice in advance from Supplier in accordance with the procedures set forth in Attachment 2. For the avoidance of doubt, the decision as to whether to list any Product of Supplier on the website shall at all times remain within the sole discretion of TripsPoint.
If a Product is booked by a Customer via the website, Supplier will follow the Customer redemption procedures set forth in Attachment 2.
If Supplier changes any element of a Product after a Customer has booked the Product, but before such Customer has started to receive the Product, Supplier will offer such Customer an alternative Product of the same or higher quality as the Product originally booked and Supplier will accommodate such Customer to the Customer’s reasonable satisfaction. If a Customer cannot be accommodated to the Customer’s reasonable satisfaction, Supplier agrees that Customer may cancel its booking. In this situation, Supplier will not be owed (and TripsPoint is not obligated to pay) any amount(s) for that booked Product. TripsPoint reserves the right to charge Supplier reasonable fees related to the foregoing, including, but not limited, to merchant and customer service fees.
If Supplier cancels a Product or no longer makes a Product available to a Customer (e.g., a sold-out date) after a Customer has booked the Product but not yet received the Product, Supplier will accommodate such Customer to the Customer’s reasonable satisfaction. If a Customer cannot be accommodated to the Customer’s reasonable satisfaction, Supplier agrees that TripsPoint may process a refund or refunds of paid booking deposit for that Customer. In this situation, Supplier will not be owed (and TripsPoint is not obligated to pay) any amount(s) for that booked Product. TripsPoint reserves the right to charge the Supplier reasonable fees related to Supplier’s cancellation of or failure to make available the Product, including but not limited to merchant and customer service fees.
3. CUSTOMER CANCELLATIONS.
Supplier will not directly accept Customer cancellations for Products booked via the website. All cancellations for purchased Products must be made by the Customer directly through TripsPoint within the applicable cancellation time period, as set forth in Attachment 2. TripsPoint has no obligation to provide refunds to Customers who do not contact Trips Point to cancel within the applicable cancellation time period. In the event of a Customer cancellation due to a Force Majeure Event (defined in Section 14 below), TripsPoint's Customer shall not be required to pay the Net Rate for the Product.
Paid by Customer deposit is not covering cancellations and cannot be used for covering costs caused by the booking cancellation after the allowed applicable cancellation time period.
4. CUSTOMER CONTACT; CUSTOMER SERVICE.
If Supplier needs to contact a Customer in connection with providing Products booked by such Customer, Supplier will follow the procedures set forth in this Agreement, including without limitation Attachment 2, and such other reasonable TripsPoint processes and procedures as may be communicated by TripsPoint to Supplier from time to time.
Supplier will ensure a smooth customer service process, including answering any Customer complaints in writing (e.g., by TripsPoint Messenger or email or an interface made available by TripsPoint) within five (5) days after complaint submission. TripsPoint reserves the right at any time to respond to Customer complaints, including by contacting Customers directly; provided, however, that prior to resolving the complaint and/or providing compensation to Customers (which TripsPoint reserves the right to do in its sole discretion), TripsPoint will first attempt to contact Supplier to discuss the complaint. If TripsPoint provides compensation to a Customer in connection with a Customer complaint, Supplier will not be owed (and TripsPoint is not obligated to pay) the Net Rate pertaining to the booking(s) at issue.
After a Customer has booked a Product, Supplier will not, without TripsPoint’s prior consent, contact such Customer for purposes of marketing or selling tours, activities or other travel-related destination services and/or products to such Customer or for any other purpose other than to fulfil the Product purchased or to answer a Customer complaint.
5. INSURANCE.
Supplier will comply with the insurance requirements set forth on Attachment 3.
6. DISTRIBUTION ON THE WEBSITE.
TripsPoint will have sole discretion over the Product placement within website.
7. SUPPLIER CONTENT AND MATERIALS.
Supplier hereby grants and agrees to grant to TripsPoint the nonexclusive, perpetual, irrevocable, transferable, sublicenseable (through one or more tiers), worldwide right (but not the obligation) in its sole discretion to reproduce, modify, reformat, create derivative works based upon, publicly display and perform, and otherwise use any and all text, images, videos, and other content and materials provided by Supplier (“Supplier Content”) (i) to advertise, market, promote, and distribute Products on or through the website, including without limitation on the web sites of TripsPoint and its other websites, (ii) to advertise, market and promote destinations and activities on or through the website and to market and promote the website generally, provided, however, that TripsPoint shall have no right to use the Supplier Content to market or promote competing products, and (iii) to otherwise perform TripsPoint’s obligations and exercise TripsPoint’s rights under this Agreement. Supplier represents, warrants and covenants that (a) Supplier owns, or has rights sufficient to grant the rights granted to TripsPoint in this Agreement with respect to, all Supplier Content provided to TripsPoint, (b) Supplier Content will be accurate and complete and will not be misleading or fraudulent, and (c) Supplier Content (and TripsPoint’s exercise of its rights with respect to Supplier Content) does not and will not infringe, violate or misappropriate any third party’s proprietary or intellectual property rights, including without limitation any copyright rights or trademark rights or rights of privacy or publicity. Supplier hereby acknowledges and agrees that TripsPoint shall own all right, title and interest in and to any derivative works of the Supplier Content created by or on behalf of TripsPoint, whether prior to or after the effective date, and hereby assigns to TripsPoint any and all right, title, or interest that Supplier may have to such derivative works.
Supplier is consent that publishing any contact information in the listing, including Company Name, Website, Phone numbers, E-mail, etc is strictly prohibited and is a pure violation of these Terms & Conditions. TripsPoint have a right to reject a tour (a temporarily ban with a possibility to re-publish after eliminating violating content), ban a tour, or ban the whole Supplier's account with all tours permanently.
8. SUPPLIER CONDUCT; NO SUBCONTRACTORS.
Supplier represents, warrants and covenants that: (a) Supplier has and maintains all registrations, licenses, permits, approvals, and authorizations applicable to Supplier’s business and provision of Supplier’s Products; (b) Supplier will ensure that Supplier’s activities, operations, products and services (and Supplier’s provision of the foregoing, including without limitation in connection with providing Products to Customers) are operated and provided in good faith and in accordance with standards consistent with best practices in the tours and activities industry and, if appropriate or recommended based on the nature of Supplier’s Products, Supplier will perform background checks of its personnel consistent with best industry practices; (c) Supplier’s personnel will be properly trained, have all necessary skills to deliver the Products, and will deliver the Products in a professional manner consistent with best industry practices; (d) Supplier will comply with all applicable international, federal, state and local laws and regulations (including fire, health and safety procedures and consumer protection and data privacy laws); and (e) Supplier will not do or omit to do any act (including by virtue of its provision of any Supplier Content or its offer and/or delivery of any Product) that, in TripsPoint’s sole opinion, may be likely to cause TripsPoint or the TripsPoint's websites to be disparaged, defamed, discredited or brought into disrepute. Supplier may not subcontract or otherwise transfer any of its rights or obligations under this Agreement; provided, however that Supplier may subcontract delivery of the Products under own full responsibility. In the event the Supplier uses a subcontractor, Supplier will nevertheless remain responsible for the satisfactory delivery of Products and shall be liable for such subcontractor’s compliance with the terms and conditions of this Agreement and any breach or failure of such subcontractor to comply herewith. If TripsPoint believes that Supplier is in breach of this Agreement (including without limitation Supplier’s representations, warranties and covenants in this Agreement), TripsPoint may, without limiting its other remedies, terminate this Agreement. If TripsPoint terminates this Agreement pursuant to the foregoing, TripsPoint may (again, without limiting TripsPoint’s other remedies) require Supplier to (and Supplier will) fulfils all Product purchases made prior to termination, or assist TripsPoint in procuring alternate suppliers to fulfil such Product purchases in pursuance of the preservation of TripsPoint’s reputation and goodwill (in which case (i) Supplier will not be owed, and TripsPoint's Customer is not obligated to pay, any fees for such Product, (ii) any amounts already paid for such Product will be promptly refunded by Supplier to TripsPoint's Customer; and (iii) Supplier shall pay to TripsPoint on demand a sum equivalent to the difference between the alternate supplier’s retail rate and Supplier’s Net Rate (if the former is higher) in respect of such Product.
9. PUBLICITY; TRADEMARKS.
Supplier grants to TripsPoint the right to, and the right to authorize its websites to, use and display Supplier’s and its Products’ names, logos, marks and trademarks and to display any third- party names, logos, marks and trademarks used by Supplier with respect to the Products (collectively, all of the foregoing the “Marks”), in each case for the purposes of advertising the availability of the Products and marketing and promoting the Products through the website. Further, TripsPoint may issue a press release, advertisement or public statement that references Supplier, the relationship of the parties, and the Supplier’s Products without Supplier’s prior written consent if such press release, advertisement or public statement includes Supplier in a list of other companies that have similar relationships with TripsPoint. Supplier represents and warrants that it has all rights and licenses required to grant TripsPoint the rights granted in this Section 9. Except as expressly permitted by the foregoing, neither party will issue a press release, advertisement or public statement concerning this Agreement, the contents of this Agreement or the relationship of the parties without the prior written consent of the other party.
10. CONFIDENTIALITY; PRIVACY.
Any information disclosed by or on behalf of one party to the other party during the term of this Agreement that is identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, including, without limitation, all information pertaining to Net Rates, commissions and margins, website's technologies, and the terms of this Agreement, are “Confidential Information.” The party receiving Confidential Information of the disclosing party will maintain safeguards against its destruction, loss, alteration or disclosure, which safeguards shall be consistent with industry best practices and no less rigorous than the protections afforded by the receiving party to its own proprietary information and will not, during or after the term of this Agreement, (a) use any such Confidential Information for any purpose other than to perform the receiving party’s obligations or exercise the receiving party’s rights under this Agreement and (b) disclose any such Confidential Information to any third party, other than disclosures made by TripsPoint. Notwithstanding the foregoing, the obligations of this Section do not apply to information which is: (i) generally available to the public, without any obligation of confidentiality, other than by a breach of this Agreement by the receiving party; (ii) rightfully received by the receiving party from a third party without any obligation of confidentiality; (iii) independently developed by the receiving party without reference to or reliance on the other party’s Confidential Information; or (iv) generally made available to third parties by the disclosing party without restriction on disclosure. Upon termination of this Agreement, or upon the disclosing party’s earlier request, the receiving party will return all of the disclosing party’s Confidential Information in the receiving party’s possession or under the receiving party’s control and will cease all use of such Confidential Information.
Supplier will adhere to all applicable laws and TripsPoint’s current Privacy Policy (available at the following link: https://www.TripsPoint.com/page?page=privacy_policy, as such may be updated from time to time) with respect to Supplier’s use and disclosure of Customer Information provided to Supplier by TripsPoint or otherwise collected, obtained or received by Supplier in exercising its rights or fulfilling its obligations under this Agreement. Supplier will use such Customer Information only for purposes of providing to the applicable Customer the Products booked by such Customer. For all Customer Information (including without limitation Customer Information provided to Supplier by TripsPoint) in Supplier’s possession or under Supplier’s control, Supplier will (a) adopt and adhere to a Privacy Policy consistent with applicable laws, rules, regulations and guidelines and TripsPoint’s Privacy Policy; (b) employ reasonable, industry standard physical, technical and administrative measures to protect the Customer Information, including without limitation storing the Customer Information in secured environments that are not accessible to the general public and having security measures in place at Supplier’s facilities to protect against the loss, misuse, corruption, unauthorized disclosure, or alteration of the information by Supplier’s employees or third parties; and (c) shall ensure that any collection, use and disclosure of Customer Information obtained by Supplier pursuant to the Agreement complies with all applicable laws, regulations and privacy policies. Supplier agrees not to send any unsolicited, commercial email or other online communication (e.g.,"spam") to Customers. For purposes of this Agreement, “Customer Information” means name, mailing address, telephone number, e-mail address, credit card information, IP address, order and order processing information and any other non-public, identifying information available to Supplier as a result of Supplier’s relationship with TripsPoint and any booking of Supplier’s Products by consumers through the website.
11. MUTUAL REPRESENTATIONS AND WARRANTIES; DISCLAIMER OF WARRANTIES.
Each party represents and warrants to the other party that (a) the representing and warranting party has the full power and authority to enter into this Agreement and to perform its obligations hereunder and (b) the execution, delivery and performance of this Agreement does not and will not contravene or constitute a default under, and is not and will not be inconsistent with, any judgment, decree or order, or any contract, agreement, or other undertaking, applicable to such party.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT TO THE EXTENT AS MAY BE SET FORTH IN THIS AGREEMENT OR A SEPARATE WRITTEN AGREEMENT BETWEEN THE PARTIES, TRIPSPOINT PROVIDES THE WEBSITE AS THE BOOKING PLATFORM AND ANY OTHER SERVICES, TECHNOLOGY AND MATERIALS UNDER THIS AGREEMENT “AS IS” AND TRIPSPOINT EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, WITH RESPECT TO ANY OF THE FOREGOING OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
12. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES OF ANY KIND, OR FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS RESULTING FROM INTERRUPTION OF BUSINESS OR LOSS OF USE OR DATA, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT, HOWEVER CAUSED, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TRIPSPOINT’S LIABILITY TO SUPPLIER FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE NET RATE PAID BY TRIPSPOINT'S CUSTOMER TO SUPPLIER IN THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
THE FOREGOING LIMITATIONS SHALL NOT APPLY TO SUPPLIER’S BREACH OF SECTIONS 5 (Insurance), 7 (Supplier Content and Materials), 8 (Supplier Conduct; No Subcontractors), 10 (Confidentiality; Privacy) OR SUPPLIER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 (Indemnification).
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING PROVISIONS REPRESENT A REASONABLE ALLOCATION OF RISK AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH PROVISIONS.
13. INDEMNIFICATION.
Supplier will indemnify and hold harmless, and at TripsPoint’s request defend, TripsPoint and any of their respective directors, officers, employees, agents, suppliers, licensors, vendors, distributors and service providers (each a “TripsPoint Indemnified Party”) from and against any and all claims, losses, liabilities, damages, fines, penalties, settlements, expenses, and costs (including attorneys’ fees and court costs) incurred or suffered by a TripsPoint Indemnified Party in connection with any third party claim, suit, demand, action, or investigation brought against a TripsPoint Indemnified Party directly or indirectly arising out of or relating to (a) Supplier’s activities, operations, products or services, including without limitation in connection with providing Products to Customers, (b) the Products, Supplier Content or the Marks, (c) Supplier’s breach (or a claim that, if true, would be a breach) of this Agreement, including without limitation any and all of Supplier’s representations and warranties in this Agreement and any breach of the confidentiality or privacy provisions in Section 10 or Supplier’s breach of its Privacy Policy required pursuant to Section 10, or (d) Taxes arising out of the sale of the Products via the Distribution Channels.
TripsPoint will (i) provide prompt written notice to Supplier of any claim giving rise to the indemnification obligation, and (ii) if requesting defence by Supplier, provide reasonable cooperation and assistance with respect to the claim (at Supplier’s request and expense) and permit Supplier to assume sole control over the defence and settlement of the claim (provided, however, that TripsPoint shall have the right to approve counsel selected by Supplier, such approval not to be unreasonably withheld or delayed) and, if Supplier fails to promptly assume the defence and settlement of the claim after TripsPoint’s request, TripsPoint may do so at Supplier’s sole cost and expense. Neither party will compromise or settle the claim without the other party’s prior written consent, which will not be unreasonably withheld or delayed.
14. FORCE MAJEURE.
If either party is prevented from performing any of its duties and obligations hereunder in a timely manner by reason of any act of God, strike, labor dispute, earthquake, fire, flood, public disaster, equipment, software or technical malfunctions or failures, power failures or interruptions, acts of terrorism, war, civil unrest, riots or any other reason beyond its reasonable control (each a “Force Majeure Event”), such party will be excused from performance of any such duty or obligation for the period during which such condition exists.
15.CHANGES TO THE AGREEMENT.
TripsPoint reserves the right to update or otherwise make changes to this Agreement (including to any Attachment or document referenced herein) from time to time on at least thirty (30) days’ notice (“Notice Period”), which notice TripsPoint will provide to Supplier by any reasonable means (including via email, via the TripsPoint Messenger, in connection with requesting Product rate information from Supplier, or other electronic or other interactions with Supplier). If Supplier objects to the revised version of this Agreement (or any Attachment or document), Supplier will within the Notice Period notify TripsPoint of Supplier’s objection. If Supplier so notifies TripsPoint, the revised version will not apply to Supplier and the parties will negotiate in good faith to resolve Supplier’s objection within sixty (60) days after TripsPoint first provided notice of the revised terms. If the parties do not reach agreement within such sixty (60) day period, at TripsPoint’s option in TripsPoint’s sole discretion, this Agreement will continue in accordance with its terms in effect prior to such notice or may be terminated by TripsPoint. If Supplier does not notify TripsPoint of Supplier’s objection during the Notice Period, Supplier’s continued access to and/or use of TripsPoint Website and other products, services and materials provided by TripsPoint to Supplier under this Agreement after the effective date of such revised version of this Agreement will be deemed Supplier’s acceptance of such revised version; however, changes to this Agreement will not apply to any dispute between the parties based on a claim filed before the effective date of the changes. Except as set forth in this Section, no amendment, modification or rescission to this Agreement or any Attachment or document will be effective unless it is made in writing and signed by both parties.
16. DISPUTE RESOLUTION.
Any controversy, claim or dispute arising out of or relating to this Agreement, or the obligation of a party hereunder, will be settled exclusively in accordance with this Section, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory. Each party will nominate a representative to negotiate in good faith to promptly resolve the controversy, claim or dispute for a period of up to fourteen (14) days following notification of the controversy, claim or dispute. In the event the controversy, claim or dispute has not been settled between the nominated representatives then, unless TripsPoint designates an alternative method of dispute resolution that the parties shall follow (which it may do in its sole discretion), the parties will submit to final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury and, in such circumstances, the parties each waive the right to trial by a jury. Supplier agrees that any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and Supplier is agreeing to give up the ability to participate in a class action. Any arbitration will be conducted in accordance with the currently prevailing commercial arbitration rules of Ireland. The parties agree to abide by any decision and award rendered in the proceedings. The decision and award will be final and conclusive and may be entered in any court having jurisdiction thereof. The English language version of this Agreement shall govern and all proceedings conducted shall be conducted in English. Any arbitration hearing will be held in Dublin, Ireland, if not agreed different location both by TripsPoint and Supplier. The applicable governing law will be as set forth in Section 18 (provided that with respect to arbitrability issues, arbitration law will govern). The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
17. ANTI-CORRUPTION.
It is the intent of the parties that no payments or transfers of anything of value shall be made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or any improper advantage. Supplier shall comply with all international anti-corruption laws, such as the Irish Prevention of Corruption Act 1916, US Foreign Corrupt Practices Act and the UK Bribery Act, and that, with respect to Supplier’s performance of any of its activities under this Agreement:
(a) No portion of any fees paid or payable by TripsPoint to Supplier will be paid to, or accrued directly or indirectly for the benefit of, any person, firm, corporation or other entity other than Supplier.
(b) Supplier has not, and will not at any time, directly or indirectly, pay, offer, authorize or promise to pay, offer, or authorize the payment of, any monies or any other thing of value to: (i) any officer or employee of any government, department, agency or instrumentality thereof; (ii) any other person acting in an official capacity for or on behalf of any government, department, agency or instrumentality thereof; (iii) any political party, political committee, or any official or employee thereof; (iv) any candidate for political office; (v) any other person, firm, corporation or other entity at the suggestion, request or direction of, or for the benefit of, any government officer or employee, political party, political committee, or official or employee thereof, or candidate for political office; or (vi) any other person, firm, corporation or other entity with knowledge that some or all of those monies or other thing of value will be paid over to any officer or employee of any government department, agency or instrumentality, political party, political committee, or officer or employee thereof, or candidate for political office.
(c) At TripsPoint’s request, Supplier shall provide a certification to TripsPoint that Supplier is in compliance with the foregoing.
(d) TRIPSPOINT DON'T DO BUSINESS, DO NOT ACCEPT ANY KIND OF LISTINGS, BOOKINGS OR AGREEMENTS WITH CITIZENS FROM FOLLOWING COUNTRIES:
- North Korea
- Russia
- Zimbabwe
- Sudan
- Somalia
- Cuba
- Congo Republic
- Occupied by Russia territories of Ukraine
- Iran
- Syria
- Bolivia
- Belarus
- Burundi
- Nicaragua
- Afganistan
- Central African Republic
- Democratic Republic of Congo
- Eritrea
- Iraq
- Iran
- Libya
- Myanmar
- South Sudan
- Sudan
- Syria
- Venezuela
- Yemen
- Occupied by Russia territories of Ukraine, Georgia and Moldova.
TRIPSPOINT HAVE THE RIGHT TO TERMINATE THE AGREEMENT WITHOUT NOTICE, TERMINATE OR SUSPEND YOUR SUPPLIER ACCOUNT WITHOUT ANY EXPLANATION, IF WILL BE SUSPECTED YOUR CONNECTION WITH ONE OF THE COUNTRIES FROM THE LIST ABOVE.
18. GENERAL.
This Agreement, including TripsPoint’s Privacy Policy and the Attachments, contains the entire understanding of the parties relating to the subject matter contained in this Agreement and supersedes all prior and contemporaneous agreements, arrangements and understandings between the parties. Any offer by TripsPoint and any acceptance of such an offer by Supplier is limited to the terms in this Agreement only, TripsPoint objects to any additional or different terms, and TripsPoint’s acceptance of any offer is expressly made conditional on assent to the terms of this Agreement. This Agreement will be governed by the laws of the Ireland without regard to its conflicts of law provisions, and by entering into this Agreement, Supplier waives any claims that may arise under the laws of other countries or territories. The UN Convention on the International Sale of Goods shall not apply to this Agreement and is expressly disclaimed. In connection with TripsPoint’s performance of its obligations and exercise of its rights hereunder, TripsPoint may have such obligations performed and such rights exercised on its behalf by the TripsPoint group and any of TripsPoint’s affiliates and their respective agents, contractors, distributors, and service providers. The waiver or failure to require the performance of any provision herein will not be deemed to constitute a waiver of a later breach of the same or any other provision herein, and no such waiver will be effective unless in writing. TripsPoint may assign or otherwise transfer this Agreement in whole or in part. Supplier may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder, by operation of law or otherwise, without TripsPoint’s prior written consent and, for purposes hereof, a merger or change of control in which Supplier is not the surviving party will be deemed an assignment. Any attempted assignment in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Except as explicitly set forth in this Agreement, this Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; and the parties will at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, and except for the supporting bookings of Supplier’s Products by TripsPoint as described herein, neither party will have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, the remainder of this Agreement will remain in full force and effect and the parties will modify such provision so as to be valid and enforceable if possible in such jurisdiction and conform to the parties’ intent. Any remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity. Sections 8 (Supplier Conduct), 10 (Confidentiality; Privacy), 11 (Mutual Representations and Warranties; Disclaimer), 12 (Limitation of Liability), 13 (Indemnification), 16 (Dispute Resolution) and this Section 18 (General) shall survive any termination or expiration of this Agreement.
TripsPoint's Customers pays to Supplier directly an amount equal to the sum of the Net Rate (specified as the Remaining Balance in the Voucher) for each Product booked via the website.
Customers pays to Supplier on the day and at the beginning of a tour, activity, holiday accommodation rental period or rental service period.
No dispute may be raised, and no claim, action or proceedings may be brought, against TripsPoint in respect of any Net Rate payment-related matter. Supplier is fully responsible for charging from a Customer specified in the Voucher Remaining Balance as the Net Rate.
Supplier is obligated to give to a Customer an invoice or receipt of payment in exchange to the received amount of the payment.
Product Bookings, Changes & Availability:
All Products will be subject to “Freesale Booking” unless TripsPoint and Supplier mutually agree that Freesale Booking is not commercially possible for a specific Product or that a Product is subject to On Request Booking (defined below). For Freesale Bookings, Supplier authorizes TripsPoint to accept all requests from Customers for bookings of Supplier’s Products and to send confirmation of Product bookings to Customers after bookings had been confirmed by Supplier directly or through TripsPoint team. For avoidance of doubt, Supplier will accept all Freesale Booking requests and may not reject a Freesale Booking. If a Freesale Booking request lacks certain Customer Information, Supplier shall follow TripsPoint’s then-current customer contact procedures (defined below) (and to be clear, Supplier will not reject the booking). The parties may mutually agree that a specific Product is subject to “On Request Booking,” in which case Supplier may accept or reject a booking request for the Product before the Customer receives confirmation from TripsPoint. For On Request Bookings, Supplier agrees to accept or reject the booking request within twenty-four (24) hours. If Supplier accepts the request, the Product will be deemed purchased and confirmed.
Supplier will manage Product bookings, including without limitation accepting, rejecting and confirming Product bookings, using the interface made available by TripsPoint. Supplier will keep Product availability current at all times.
All bookings not rejected by Supplier made available by TripsPoint will be deemed and accepted by Supplier. If a Customer is able to book a particular Product because Supplier appears to have availability for such Product through the TripsPoint interface, Supplier will accept such booking. If booking through the TripsPoint interface becomes disabled, regardless of fault and with or without notice, Supplier agrees to immediately revert to managing booking confirmations either through emailed booking confirmations sent from TripsPoint or through other technology made available by TripsPoint.
Supplier will notify TripsPoint of any changes (e.g., changes to itineraries or timings), cancellations (e.g., tour cancellations, sold-out dates) and any other updates with respect to Products at least six (6) months in advance. If such advance notice is not possible, Supplier will notify TripsPoint immediately upon becoming aware of such changes, cancellations or updates. If Supplier does not notify TripsPoint in advance of such changes, cancellations and updates and TripsPoint refunds Customers for the applicable Products as a result of the changes, cancellations or updates, Supplier agrees to compensate TripsPoint for all amounts forfeited by TripsPoint and pay reasonable amounts for TripsPoint’s efforts.
Cancellation and No-Show Policy:
For each Product, Supplier will adhere to TripsPoint’s cancellation policy as set forth on the TripsPoint.com website at the time of Product booking. Notwithstanding the foregoing, in any event, Supplier will not impose a more restrictive cancellation policy on Customers booking via the Distribution Channels than the cancellation policies Supplier imposes on customers booking directly with Supplier or through any third party (including, without limitation, through coupons, deal- of-the-day or flash sale websites, or any other distribution channel) (the “Supplier No Show Policy”). Unless cancelled by TripsPoint, all Products booked by Customers through the website will remain available to the Customers in accordance with the Supplier No Show Policy. Supplier will use commercially reasonable efforts to accommodate Customers arriving after any no-show cut-off time.
If a Customer fails to appear at the designated meeting point (pickup point) stated in the TripsPoint tour voucher by the specified start time, the supplier must report this "No Show" case to TripsPoint within one hour. In the event of such a "No Show," if it is determined to be the customer's fault, TripsPoint will reimburse the Supplier the net price specified in the voucher as the remaining balance. This amount will be paid directly to the Supplier's bank account.
Supplier Interaction with TripsPoint:
Supplier’s use of the website and any associated tools, interfaces, application programming interfaces, extranets, computer software and any other TripsPoint technology (collectively, the “TripsPoint Technology”) is subject to and conditioned on Supplier’s compliance with the terms and conditions of this Agreement, including without limitation this Attachment. Supplier or its third-party service providers shall access and use the TripsPoint Technology in accordance with the applicable documentation for such TripsPoint Technology and any written instructions received from TripsPoint. TripsPoint may suspend Supplier’s and/or its third-party service providers’ access to and use of TripsPoint Technology at any time if TripsPoint believes that Supplier and/or its third-party service providers are in breach of this Agreement (including without limitation Supplier’s representations and warranties). Supplier shall be responsible for the compliance of its third-party providers with the terms and conditions of this Agreement and shall be liable for any breach of this Agreement by such third-party providers. Supplier acknowledges and agrees that TripsPoint owns all right, title and interest in and to the TripsPoint Technology and reserves all rights not granted herein. Supplier shall not, and shall not permit any third party to, (a) copy, modify, adapt, transfer, distribute, resell, rent, lease, sublicense or loan the TripsPoint Technology or create or prepare derivative works based upon the TripsPoint Technology or any part thereof, (b) use the TripsPoint Technology for any purpose other than as expressly permitted under this Agreement, (c) use the TripsPoint Technology in contravention to any applicable laws or government regulations, or (d) attempt to decompile, disassemble or otherwise reverse engineer the TripsPoint Technology.
Supplier (and not TripsPoint) is responsible for obtaining, maintaining and configuring all telecommunications, broadband, computer and other hardware, equipment, software and services needed to access and use the TripsPoint Technology, and paying all charges related thereto. If Supplier intends to engage a third-party service provider to obtain, maintain and/or configure Supplier’s access to the TripsPoint Technology, Supplier will notify TripsPoint in advance, and Supplier assumes responsibility for actions taken by such third party and such third party’s compliance with this Attachment.
Supplier Interactions with Customers:
If Supplier needs to contact a Customer, Supplier shall use only the interface made available by TripsPoint, unless agreed to otherwise by TripsPoint, and any such use shall only be in furtherance of the sale of a Product through the Distribution Channels.
Customer Redemption: If Supplier requires a voucher or confirmation of purchase, Supplier will accept an electronic voucher for each Product sold through the website. If Supplier cannot accept electronic vouchers for a certain Product, Supplier must specify in the Product Important Information section the printed Voucher is required.
Additional Restrictions:
Supplier is not authorized to systematically analyze, scrape or otherwise extract information or data (including without limitation guest reviews) from the Website, or any other websites of TripsPoint or the depended companies, or any TripsPoint affiliate. Supplier is not authorized to publicly display on Supplier’s websites any of the content, text, images, materials, videos or other materials displayed on the website or any other websites of TripsPoint or any TripsPoint affiliate (other than the Supplier Content).
If required by TripsPoint, Supplier will procure and maintain a current Public (Product) liability insurance (PLI) and errors and omissions insurance with coverage limits consistent with industry standards and as may be required by applicable laws, rules, and regulations. Such insurance will be provided through an insurer acceptable to TripsPoint with an A.M. Best (or its equivalent) financial strength rating of A-VII or higher, and will include, without limitation, completed operations, blanket contractual liability, and personal injury and advertising liability. On TripsPoint’s request (which may be made by e-mail), Supplier will add TripsPoint as an additional insured to such insurance policies and will provide a certificate of insurance evidencing all of the coverage described in this Section and that TripsPoint has been added as an additional insured. Such insurance carried by Supplier will be primary to any insurance carried by TripsPoint.
Notwithstanding the foregoing, TripsPoint reserves the right to require specific additional coverage or increased coverage, or to waive the foregoing insurance requirements, based on Supplier’s Product offerings, and Supplier will maintain its insurance at such levels upon TripsPoint’s request (which may be made by e-mail). TripsPoint does not represent that the coverage it may require will be adequate to protect Supplier and such coverage and limits will not be deemed to be a limitation on Supplier's liability to TripsPoint, if any, arising under this Agreement.
If Supplier fails to comply with the foregoing requirements, and fails to cure such failure within fifteen (15) days from receipt of TripsPoint’s written notice, TripsPoint may elect to either (x) notify Supplier of a Deactivation or (y) terminate this Agreement.