VAX VacationAccess Travel Agency Agreement Definitions For purposes of this

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VAX VacationAccess Travel Agency Agreement Definitions For purposes of this Powered By Docstoc
					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.