VAX VACATIONACCESS TRAVEL AGENCY AGREEMENT
1. Definitions. For purposes of this Agreement, the following words and terms will have the following meanings:
"Booking" shall mean one (1) Booking of a reservation for a travel product included in the Trisept Solutions Inventory by the Travel Agent for a consumer, which Booking includes at least one (1) passenger.
"Cancellation" shall mean one (1) cancellation of a Booking for at least one (1) passenger.
"Confidential Information" shall mean all information and materials concerning a party's business, plans, pricing, customers, technology, and products that are confidential and of substantial value to such party, which value would be impaired if such information and materials were disclosed to third parties. No Confidential Information shall be deemed confidential unless so marked if given in writing or, if given orally, identified as confidential prior to disclosure; provided that for purposes of this Agreement all information and materials relating to the VAX Technology and all information and materials relating to the sale of travel products included in the Trisept Solutions Inventory through Trisept Solutions using VAX shall be deemed confidential.
"Affiliates" shall mean, with respect to a party, any entity controlled by, controlling, or under common control with such party. For purposes of the preceding sentence, a party shall be deemed to control an entity if such party directly or indirectly owns more than 50% of the voting interests in such entity.
"Trisept Solutions Content" shall mean all materials and information (including without limitation all text, graphics, photographs, audio, video, pricing and delivery information and details of accommodations and travel arrangements) used by Trisept Solutions to describe the travel products included in the Trisept Solutions Inventory.
"Trisept Solutions Inventory" shall mean the travel products from time to time offered through Trisept Solutions.
"Net Bookings" shall mean the number of Bookings during a time period minus the number of Cancellations during that same time period.
"VAX" shall mean the VacationAccess technology owned by Trisept Solutions that enables the Travel Agent to access the Trisept Solutions Inventory and make Bookings on behalf of their customers.
"VAX Technology" shall mean VAX and all software and technology related thereto.
2. VAX Access. Trisept Solutions agrees to (a) provide the Travel Agent electronic access to the travel products included in the Trisept Solutions Inventory and (b) allow the Travel Agent to make Bookings (subject to Paragraph 5, below) from the travel products included in the Trisept Solutions Inventory through Trisept Solutions using VAX.
3. Compliance with Rules. The Travel Agent shall comply with all of Trisept Solutions' rules and regulations regarding use of VAX from time to time in effect, including without limitation the following. Trisept Solutions reserves the right to change these rules and regulations at any time.
(a) The Travel Agent is responsible for any equipment and software necessary to access the VAX Technology.
(b) Trisept Solutions utilizes specific authorization codes or passwords of limited life for VAX access. Provided that the Travel Agent if not in breach of this Agreement, Trisept Solutions will provide the Travel Agent with the proper authorization code or password from time to time in effect to enable the Travel Agent to access VAX.
(c) The Travel Agent shall provide a site manager responsible for maintaining and controlling access to VAX by the employees, agents or representatives of the Travel Agent. The site manager shall be responsible for the distribution of authorization codes or passwords. The site manager shall provide Trisept Solutions with information in connection with the access and use of VAX by the employees, agents or representatives of the Travel Agent as Trisept Solutions reasonably requests.
(d) The Travel Agent may only use VAX in connection with legitimate transactions. The Travel Agent may not use VAX to engage in speculative Bookings.
(e) The Travel Agent must comply with all rules, procedures and requirements from time to time communicated by Trisept Solutions in connection with the installation, training, maintenance and use of VAX.
(f) The Travel Agent will immediately inform Trisept Solutions of any occurrence or circumstance that arises that could reasonably lead to a claim being asserted against Trisept Solutions or any Trisept Solutions Affiliate.
(g) Trisept Solutions may restrict or discontinue the Travel Agent's access to VAX in the event of a breach of this Agreement by the Travel Agent, or in the event of any other circumstance warranting such action in Trisept Solutions' sole discretion (even if the Travel Agent has not violated any provision of this Agreement); provided that if Trisept Solutions discontinues access to VAX as aforesaid and the Travel Agent has not violated any provision of this Agreement, the Travel Agent may elect to terminate this Agreement upon written notice given to Trisept Solutions at any time while such access remains unavailable to the Travel Agent.
4. Content and Trisept Solutions Inventory. Trisept Solutions will have sole control over the management of the VAX Technology including without limitation reviewing, editing, creating, deleting and updating the Trisept Solutions Content. All travel products to be offered as part of the Trisept Solutions Inventory from time to time shall be determined by Trisept Solutions in its sole discretion. From time to time, Trisept Solutions will create new editorial content and will periodically offer product specials. Trisept Solutions shall communicate these product specials to the Travel Agent via e-mail.
5. Bookings made on VAX. Trisept Solutions' sole responsibility with respect to VAX is to enable the Travel Agent to access the travel product inventory of Trisept Solutions' supplier network included in the Trisept Solutions Inventory. Any Travel Agent utilizing VAX must have a business relationship with each supplier of travel products included in the Trisept Solutions Inventory that such Travel Agent intends to make a Booking for on behalf of its customers. The Travel Agent is solely responsible for establishing, maintaining or otherwise enabling the business relationship with such suppliers. The Travel Agent is solely responsible for negotiating fees, commissions or other compensation from and arranging for the payment from any supplier of travel products.
6. Fees. Any fee, commission or compensation payable to the Travel Agent as the result of a Booking shall be determined and paid by the travel supplier offering the travel product or products included in such Booking. Trisept Solutions reserves the right to charge the Travel Agent for access to VAX, provided that Trisept Solutions provides the Travel Agent with ninety (90) days prior written notice of such access fee.
7. Term; Termination. The term of this Agreement shall commence as of the date hereof and shall continue until terminated by either party upon not less than ninety (90) days written notice to the other party. Notwithstanding the foregoing, either party may terminate this Agreement upon a material breach of this Agreement by the other party, provided that such breach remain uncured for fifteen (15) days following written notice to the breaching party describing such breach. Upon termination for any reason, the parties shall have no further obligations hereunder except that Paragraphs 8, 9, 10, 11 and 12 shall survive such termination and each party shall be obligated to pay all amounts accruing prior to the termination date.
8. Proprietary Rights. Trisept Solutions retains all right, title, and interest in the VAX Technology and any enhancements thereto, including without limitation graphical designs, names, icons, interfaces, and other design elements (i.e., the selection and arrangement of materials therein and the "look and feel" thereof). All information with respect to the purchase of the travel products included in the Trisept Solutions Inventory that is collected by Trisept Solutions and/or stored in Trisept Solutions' systems software or hardware shall be jointly owned by Trisept Solutions and the Travel Agent. Notwithstanding any provision in this Agreement to the contrary, (a) Trisept Solutions shall have the right to provide, communicate, disclose, sell, license or transfer such information relating to VAX purchases to any third party on an aggregate basis such that individual customer information is not disclosed, and (b) the Travel Agent shall have the right to provide, communicate, disclose, sell, license or transfer such information relating to VAX purchases to any third party. Neither party shall be obligated to the other for an accounting of profits realized by reason of its use of such information relating to VAX purchases.
9. Confidentiality. Each party acknowledges that by reason of its relationship to the other party under this Agreement it will have access to the other party's Confidential Information. Each party agrees to maintain in confidence all Confidential Information received from the other, both oral and written, and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party. Each party agrees to use the Confidential Information only for the purpose of performing this Agreement.
10. Representations and Warranties; Disclaimer of Liability. Trisept Solutions represents and warrants that the VAX Technology will enable access to and ability to book reservations from the Trisept Solutions Inventory on a continuous basis (i.e., twenty four (24) hours each day, seven (7) days each week), subject to scheduled and unscheduled downtime which will not be unduly excessive. The sole obligation of Trisept Solutions for a breach of the representations and warranties set forth in this Paragraph 10 shall be to use reasonable efforts to promptly correct the condition that prevented the VAX Technology from operating properly.EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS PARAGRAPH, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON?INFRINGEMENT.
11. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE) FOR LOSS OF REVENUES OR PROFITS, OR OTHER FORMS OF ECONOMIC LOSS, OF ANY NATURE WHATSOEVER, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Indemnification. The Travel Agent hereby agrees to indemnify and hold Trisept Solutions, the Trisept Solutions Affiliates, their successors and assigns and their officers, directors, agents and employees harmless upon demand from and against any and all claims, demands and suits, and all damages, losses, fines, judgments, costs and expenses incidental thereto, which may be suffered by, accrue against, be charged to or be recovered from any of them by reason of (i) the conduct of the Travel Agent of its business; (ii) any loss, damage, cost or expense incurred or suffered by a third party, arising out of any breach of this Agreement by the Travel Agent or any other act, error or omission of the Travel Agent, its officers, directors, agents or employees.
13. Force Majeure. Neither Trisept Solutions nor any Trisept Solutions Affiliate shall have responsibility for or be liable for any delay or any other failure to perform for reasons beyond its reasonable control, including without limitation, accidents, strikes, work stoppages, labor trouble, illness, bad weather, shut down or delay or suppliers, governmental orders or regulations, telecommunications or computer failures or interruptions, transportation failures or delays, or inability to obtain labor, materials or fuels at customary commercial rates or prices. In the event of delay due to any such cause, Trisept Solutions may, at its option, postpone service as long as reasonably necessary.
14. Governing Law; Forum Selection This Agreement will be governed by the internal laws of the State of Wisconsin. In the event of a dispute relating to this Agreement, the Travel Agent and Trisept Solutions agree that any proceeding instituted to resolve such dispute or to seek relief based on any theory of recovery whatsoever shall have as its forum a court of general jurisdiction situated in Milwaukee, Wisconsin. The Travel Agent hereby consents to the jurisdiction and venue of any such court and waives any objection based in improper or inconvenient jurisdiction or venue.
15. Notices. All notices and other communications hereunder shall be in writing and shall be hand delivered, or sent by certified mail, postage prepaid, return receipt requested, or transmitted by facsimile, to the parties at the addresses set forth above.
16. Assignment; Subcontracts. The Travel Agent shall not assign this Agreement or any of its rights hereunder without the prior written consent of Trisept Solutions. Trisept Solutions may assign this Agreement or any of its rights hereunder to one or more Trisept Solutions Affiliates, or to any other party in connection with the sale, exchange or other disposition of Trisept Solutions' or Trisept Solutions Affiliates' business or the segment thereof to which this Agreement relates. All references to Trisept Solutions in this Agreement shall be deemed to refer to Trisept Solutions Affiliates, as appropriate in the context, if such an assignment shall occur. Trisept Solutions may also subcontract any of its duties hereunder to one or more Trisept Solutions Affiliates.
17. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersede all prior agreements, discussions and understandings, whether written or oral, concerning the subject matter hereof. This Agreement may be amended or modified only by a written document signed by the party against which the enforcement thereof is sought.
18. Responsibility for Other Parties. The Travel Agent shall advise its employees of all obligations and restrictions contained in this Agreement and shall be responsible for ensuring that all of its employees comply therewith. Trisept Solutions is not responsible for the travel products sold from the Trisept Solutions Inventory, it being understood that the suppliers thereof are solely responsible for fulfillment, customer service and all other issues that may arise relating thereto.
19. Publicity. Neither party may issue any press release describing or promoting the relationship described in this Agreement without the prior written consent of the other party (which consent will not be unreasonably withheld).
20. You agree to be liable and indemnify us for any and all bookings made (including but not limited to all credit card chargebacks), fraudulently or otherwise, using your ARC number or pseudo ARC number whether such bookings are made by you or any of the following including but not limited to outside travel agents, affiliates, employees, independents or consultants.