Terms of Use - September 6, 2023

Last Updated: September 6, 2023

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SOFTRIP OFFERINGS, YOU ARE ACECPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY SOFTRIP OFFERINGS. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.

IF YOU ARE USING ANY SOFTRIP OFFERINGS AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

AGREEMENT

These Softrip Terms of Use (“Agreement”) are entered into by and between Softrip LLC (“Softrip”) and the entity or person (other than a Reseller, as defined in the definitions section) placing an order for, or accessing, any Softrip Offerings (as defined in the definitions section) (“Customer” or “you”). This Agreement consists of the terms and conditions below and any attachments, addenda, or exhibits referenced in the Agreement, any URLs incorporated by reference, and any Order Forms issued pursuant to this Agreement.

The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Softrip Offering (as defined below) through any online provisioning, registration, or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer through any additional Order Forms that reference this Agreement (“Add-On Order Form(s)”).

Modifications to this Agreement. From time to time, Softrip may modify this Agreement. Unless otherwise specified by Softrip, changes become effective for Customer upon renewal of the then-current Subscription Term or upon the effective date of a new Order Form after the updated version of this Agreement goes into effect. Softrip will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email, or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or upon the effective date of a new Order Form, and in any event, continued use of any Softrip Offering after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.

General Background. Customer is a tour operator who specializes in the creation and sale of tour packages (“Tour Operator Business”) that include but are not limited to, packaged travel, accommodations, meals, sightseeing, and/or transportation offerings (“Travel Packages”) provided by third parties (“Travel Providers”), which Customer sells directly to the general public (“Travelers”) or through unaffiliated third-party travel agencies or agents (“Travel Agents”). Softrip has developed the Platform to facilitate automation and management of aspects of the Tour Operator Business. This Agreement states the terms and conditions pursuant to which Softrip will make available to Customer, and Customer may use, the Platform and purchase related Technical Services during a Subscription Term in support of Customer’s Tour Operator Business.
Platform Provision, Support, and Service Levels. Softrip will make the Platform available to Customer for the Subscription Term: (a) in compliance with all laws applicable to Softrip’s business; (b) solely for use by Customer and its Affiliates (and their permitted users as noted in Section 3 below), (c) in accordance with the terms and conditions of this Agreement, the Documentation, the Order Form, (d) subject to the availability commitments and policies in the SLC, and (e) including Support Services as described in the Support Policy.
User Access.
1. Authorized Users. Customer may permit up to the number of Users noted on the Order Form to access and use Customer’s Account within the Platform solely for Customer’s benefit as part of the Tour Operator Business. Customer will be responsible for each User’s compliance with this Agreement. User logins are personal and may not be shared among Users.
2. Travelers. If Customer sells Travel Packages to the general public, during each Subscription Term, and unless otherwise noted on an Order Form, Customer may permit an unlimited number of Travelers to create and maintain individual traveler profiles within Customer’s Account solely for purposes of transacting business with Customer concerning the Travel Packages.
3. Travel Agents. If Customer sells Travel Packages to Travel Agents for resale to the general public, during each Subscription Term and unless otherwise noted on an Order Form, Customer may permit an unlimited number of Travel Agents to create Travel Agent within the Travel Agent booking portal Customer’s Account solely for purposes of transacting business with Customer concerning the Travel Packages.
4. Travel Providers. Provided that Customer has purchased Softrip’s “Vendor Direct” package as noted on an Order Form, Customer may permit Third-Party Providers to create and maintain user profiles within the Customer’s Account, solely for purposes of managing bookings of the applicable Travel Package product or service provided by the Third-Party Provider. Where noted on the Order Form, Travel Providers are Users for purposes of this Agreement.
5. All Users. Customer will be solely responsible for establishing the terms and conditions pursuant to which it permits Users, Travelers, Travel Agents, and/or Travel Providers to create and use profiles within Customer’s Account on the Platform and/or otherwise transact business with Customer (“User Terms”). Softrip is not a party to the User Terms. User Terms: (a) may not directly or indirectly bind or purport to bind Softrip to any term, obligation, warranty, representation, liability, indemnity, covenant, or other undertaking to any Users, Travelers, Travel Agents, and/or Travel Providers, (b) may not in any way grant any rights or licenses in or to the Platform to the Users, Travelers, Travel Agents, and/or Travel Providers that exceed the scope of permitted access, use, or rights noted in this Section or elsewhere in this Agreement, (c) will not cause Customer to be in breach of this Agreement or laws governing the Tour Operator Business, and (d) do not, expressly or by implication, constitute either the Users, Travelers, Travel Agents, and/or Travel Providers as intended third party beneficiaries of this Agreement.
Customer-Hosted Installations. To the extent that the Order Form expressly states that Customer is hosting the Platform or having a third party host the Platform for Customer (in either case, a “Customer-Hosted” implementation or Platform version), Softrip grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during the Subscription Term to install and operate the Customer-Hosted version of the Platform on the hosting environment selected by Customer and use the object code form of the Customer-Hosted version of the Platform solely in connection with Customer’s and its Affiliates’ Tour Operator Business only, subject to the terms and conditions of this Agreement. Softrip will make the Customer-Hosted version of the Platform available for electronic download promptly following execution of the Order Form and throughout the Subscription Term. Customer understands and agrees that Customer is solely responsible for all aspects of the hosting and information technology infrastructure used to run the Customer-Hosted version of the Platform, and for the security, reliability, availability, and performance of that infrastructure and the Customer-Hosted version of the Platform. Softrip’s obligations under the SLC and the Security Addendum specifically do not apply when a Customer-Hosted version of the Platform is provided. Certain aspects of Support Services may also not apply where the Customer-Hosted version of the Platform is in use.
General Restrictions. Customer will not (and will not permit any third party to): (a) sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available the Platform, Third-Party Products, or any Deliverables, if applicable, to a third party (excluding those limited use rights authorized for Users, Travelers, Travel Agents, or Travel Providers respectively) or in a service bureau or outsourcing offering; (b) use the Platform to provide, or incorporate the Platform into, any general purpose travel booking or management service for the benefit of unaffiliated third-party tour operators or other third parties (other than Affiliates for whom subscriptions are purchased under the Order Forms); (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Platform, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Softrip); (d) remove or obscure any proprietary or other notices contained in the Platform; or (e) use any Softrip Offerings in violation of the Acceptable Use Policy.
Connectors. The Platform may provide integrations that facilitate Customer’s use of Third-Party Products (“Connectors”). Connectors for which Customer obtains a right of use as part of the Platform subscription may carry a separate fee as identified on each Order Form. Unless otherwise agreed in writing by Softrip in an Order Form or SOW, Softrip may discontinue the availability of any Connectors to Customer if: (a) Softrip receives credible notification from the Third-Party Product provider that Customer no longer maintains or is authorized to use the underlying Third-Party Product with which the Connector integrates, (b) the Third-Party Product provider ceases making the Third-Party Product available in the normal course, (c) Softrip’s connector development or similar agreement with the Third-Party Product provider ends, is suspended, or is terminated for any reason, or (d) pursuant to Softrip’s standard end-of-life or Support Services policies and procedures, including, but not limited to, where Softrip generally discontinues commercial availability of such Connector. Softrip will provide Customer written notification as soon as practicable regarding a Connector discontinuation, in no event later than when Softrip generally issues such communication to all similar customers. Notification may be provided via email or login notices on Customer’s Account within the Platform. Softrip does not currently maintain or guarantee that it will maintain direct agreements or relationships with all Third-Party Product providers for which Softrip develops a Connector, and therefore, while Softrip agrees to use reasonable and diligent efforts to update supported Connectors promptly in response to known changes to the Third-Party Product or the application programming interface (API) on which the Connector relies, Softrip does not guarantee or promise that all Connectors will be updated, or that all updates will be released within specified periods. Customer agrees to use reasonable efforts to inform Softrip if Customer is notified or becomes aware of a current or planned change in the Third-Party Product API that may affect a Connector in use by Customer. Any Connector release periods announced by Softrip are target periods only and are subject to change. Custom modifications or custom updates to Connectors may incur separate fees and require mutual written agreement of the parties for the associated scope of work.
Third-Party Products. Softrip may resell subscriptions to certain Third-Party Products where so noted on the Order Form. Use of Third-Party Products resold by Softrip via an Order Form may require either Customer’s consent to supplemental terms and conditions that either (a) are noted at the Third Party Product Addendum located at the URL https://www.softrip.com/legal/ and/or referenced on the Order Form, (b) are presented by the Third-Party Product provider to Customer as part of Customer’s online sign-up process within the Platform or the Third-Party Product provider, or (c) were previously and separately entered into between Customer and the Third-Party Product provider. Softrip is not the developer or provider of Third-Party Products and does not assume any obligation to provide or deliver the Third-Party Products, even when integrated with the Platform. Softrip will have no liability for such Third-Party Products. Softrip does not guarantee the continued availability of any Third-Party Products features, whether resold by Softrip or enabled via the Platform, and may cease enabling them via the Platform if (a) Softrip receives credible notification from the Third-Party Product provider that Customer no longer maintains or is authorized to use the Third-Party Product, (b) the Third-Party Product provider ceases making the Third-Party Product available in the normal course, (c) Softrip’s resale or similar agreement with the Third-Party Product provider ends or is terminated for any reason. Softrip reserves the right to replace or substitute or discontinue Third-Party Products resold by Softrip or integrated with the Platform as necessary to meet or improve technical, security, privacy, quality, financial, or other industry or market requirements. Softrip is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access, or use of any such Third-Party Products, or Customer’s reliance on the privacy practices, data security processes, or other policies of such Third-Party Products. By enabling any Third-Party Products, Customer agrees to allow Softrip to share Customer’s login and Customer Data solely to the Third-Party Product provider, as necessary to facilitate the use or enablement of such Third-Party Products.
Prerelease Terms. Softrip may make available to Customer certain products, features, services, software, connectors, or cloud providers that are not yet generally available, including such products, features, services, software, connectors, or cloud providers that are labeled as “private preview,” “public preview,” “pre-release,” “beta” or similar designation (collectively, “Preleases”). Customer may access and use Preleases solely for internal evaluation purposes and in accordance with the Prelease Terms. In the event of any conflict between this Agreement and the Prelease Terms, the Prelease Terms will govern and control solely with respect to the Preleases.
Technical Services.
1. Statements of Work. Softrip will perform Technical Services for Customer as stated in each applicable SOW, subject to the terms and conditions of this Agreement.
2. Customer Materials. Customer acknowledges that timely access to applicable Customer Materials, resources, personnel, equipment, or facilities is necessary for the provision of Technical Services. Customer agrees to provide such access and to reasonably cooperate with Softrip during a Technical Services project. Softrip will have no liability for any delay or deficiency to the extent resulting from Customer’s breach of its obligations under this Section 9. Customer grants Softrip a limited right to use any Customer Materials solely for the purpose of providing Technical Services to Customer. Customer will retain any of its rights (including all intellectual property rights) in and to the Customer Materials. Customer Materials comprising Confidential Information will be subject to Section 12 (Confidentiality). Customer warrants that Customer has and will have sufficient rights in the Customer Materials to grant the rights to Softrip under this Agreement and that the Customer Materials will not violate any third-party rights.
3. Access to Customer Data under an SOW.With respect to access to any Customer Data under an SOW, in particular, where the Platform is Customer-Hosted, Customer is solely responsible for verifying that both the duration and scope of Softrip’s access are strictly limited to the access required under the specific SOW. Customer will grant Softrip access to Customer Data only during the term of the applicable Technical Services project. Unless otherwise specified in an SOW, Customer will not grant Softrip access to any Customer Data that is unencrypted or contains sensitive data, including, without limitation, any production-level personal data, credit card or other financial account information, or protected health information. To the extent that the Platform is Customer-Hosted and access to Customer Data is granted, unless otherwise specified in an SOW, Customer will provide Softrip with: (i) secure networks for accessing Customer Data that are monitored, managed, configured, supported, and maintained by Customer; and (ii) unique Internal User ID/passwords to each Softrip resource that requires access to Customer Data, and these credentials will be solely managed by Customer.
4. License to Deliverables.The Technical Services that Softrip performs (e.g., Platform configuration or scripts or customizations to the Platform or Connectors) and the resulting Deliverables described in the SOW are generally applicable to Softrip’s business and/or the underlying Platform, and are therefore Softrip Technology as defined in the definitions Section (excluding, however, any Customer Data or Customer’s Confidential Information therein). Subject to the terms and conditions of this Agreement (including the restrictions in Section 5 above (General Restrictions)), Softrip hereby grants Customer a limited, non-exclusive, royalty-free, non-transferable worldwide license to use the Deliverables internally solely in connection with Customer’s authorized use of the Platform during the Subscription Term. The parties may mutually agree to SOWs with additional terms and restrictions related to the use of Deliverables provided as part of that project, in which case those terms and restrictions will also apply for purposes of those Deliverables only. Customer is not entitled to Support Services or updates or upgrades for the Deliverables unless specifically agreed in writing by the parties in the SOW, which, if agreed by Softrip, may be conditioned upon and subject to separate terms, conditions, and fees. Deliverables that consist of modifications or changes to the Platform or Connectors may result in increases in Fees charged as part of Customer’s subscription to the Platform or Connector, or as increased Support Services charges, which, if applicable, will be mutually agreed upon in writing in the applicable SOW or Order Form.
5. Change Orders; Other Terms.Customer may submit written requests to Softrip to change the scope of Technical Services under an existing SOW. Softrip will promptly notify Customer if it believes that the requested change requires an adjustment to the fees, schedule, assumptions, or scope for the performance of the Technical Services. Neither party is bound by changes to an SOW unless the parties have entered into a Change Order with respect thereto. Softrip may use subcontractors to deliver Technical Services but will remain responsible for the performance of those Technical Services under the applicable terms and conditions of this Agreement.
6. Similar Deliverables. Customer specifically acknowledges and agrees that technical specifications, requirements, feature or function requests, or other instructions provided by Customer that are embodied in the Deliverables may (a) be already known to or in use by Softrip, including, but not limited to, as part of a current or planned Prelease, (b) now or hereafter be, or have previously been, separately and independently provided to Softrip, in whole or in part, by Softrip’s other customers, business partners, or licensors (including as feedback), or independently developed by Softrip, (c) be generally in use in the information technology or travel industry, or be part of a general trend in such industries, (d) be dictated or recommended by regulatory or enforcing industrial bodies with oversight over Customer’s or Softrip’s business, or (e) be generally required to solve technical errors or defects, or address changes in existing underlying technology (including third-party technology) to which the Deliverables pertain. Therefore, without limiting Softrip’s confidentiality obligations under this Agreement or Customer’s retained rights in the Customer Materials, nothing in this Agreement will preclude, prohibit or prevent Softrip from developing, delivering, or commercially exploiting similar or identical items as the Deliverables for itself or for others, and any such development, delivery or commercial exploitation will be without any duty of accounting or other entitlements or recourse on the part of Customer.
Customer Data
1. Rights in Customer Data. As between the parties, Customer and its licensors retain all right, title, and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of operation of the Platform. Subject to the terms of this Agreement, Customer hereby grants to Softrip and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the Softrip Offerings to Customer, to prevent or address service or technical problems therein, or as may be required by law.
2. Use Obligations. Customer’s use of the Softrip Offerings and all Customer Data will comply with applicable laws, government regulations, and any other legal requirements, including but not limited to, any data localization or data sovereignty laws, regulations, and any other third-party legal requirements applicable to Customer. As between Softrip and Customer, Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to Softrip under this Agreement and that the processing of Customer Data by Softrip will not violate any laws or the rights of any third party.
3. Data Privacy.To the extent applicable under the terms of the DPA, the parties will comply with the DPA.
4. Platform Security. Unless the Platform is Customer-Hosted (in which case this Section will not apply), the parties will comply with the Security Addendum.
Intellectual Property
1. Softrip Technology. Softrip and its suppliers retain all right, title, and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to the Softrip Technology. Except for the express limited rights stated in this Agreement, no right, title, or interest in any Softrip Technology is granted to Customer. Further, Customer acknowledges that the Platform is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for the Platform, except if the Platform is Customer-Hosted, and then only as otherwise noted in this Agreement. Notwithstanding anything to the contrary in this Agreement, Softrip may freely use and incorporate any Feedback into Softrip’s products and services.
2. Usage Data.Notwithstanding anything to the contrary in this Agreement, Softrip may collect and use Usage Data to develop, improve, support, market, and operate its products and services. Softrip may not share any Usage Data with a third party (a) except in accordance with Section 12 (Confidentiality) of this Agreement, or (b) unless the Usage Data is aggregated and anonymized such that Customer, Customer’s business, and or any persons cannot be identified.
Confidentiality. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are bound by obligations of confidentiality to the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notice and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
Fees
1. Affiliate Ordering.Customer’s Affiliates may purchase Softrip Offerings from Softrip or a Softrip Affiliate by executing Order Forms which is governed by the terms of this Agreement. This will establish a new and separate agreement between the Customer Affiliate and the Softrip entity signing such Order Form. If the Customer Affiliate resides in a different country than Customer, then the Order Form may include mutually agreed-to modifications to terms applicable to the transaction(s) (including, but not limited to, tax terms and governing law).
2. General Payment Terms. All Fees and payment terms are as stated in the applicable Order Form or SOW. Except as expressly stated in this Agreement, all payment obligations are non-cancelable, and Fees are non-refundable. In connection with Fees payable pursuant to an SOW for Technical Services, Customer will pay each invoice for undisputed Fees within thirty (30) days following the invoice date. Softrip reserves the right to increase pricing applicable to any renewal of an Order Form, provided that Fees owed on a subscription renewal will not exceed Softrip’s then-current standard pricing for the relevant Softrip Offering, unless different renewal pricing is agreed in writing on a corresponding renewal Order Form signed by both parties. For Fees owed under a SOW or that are otherwise not paid as part of the ADP as described below, if Customer issues a purchase order upon entering into an Order Form, then any such purchase order submitted by Customer: (i) is for its internal purposes only, and Softrip rejects, and in the future is deemed to have rejected, any purchase order terms to the extent they add to or conflict in any way with this Agreement or the applicable Order Form and such additional or conflicting terms will have no effect; (ii) will be without limitation to Softrip’s right to collect Fees owing hereunder; (iii) will be for the total Fees owing under the applicable Order Form. On request, Softrip will reference the purchase order number on its invoices (solely for administrative convenience), so long as Customer provides the purchase order at least ten (10) business days prior to the invoice date.
3. Auto-Debit Program. Unless otherwise noted on an Order Form, to facilitate the collection of monthly subscription Fees, Customer agrees to enroll in Softrip’s auto-debit program (“ADP”) managed via its authorized third-party payment processor (“Payment Processor”). Customer hereby irrevocably authorizes Softrip to debit or have the Payment Processor debit the Customer’s account (via ACH, credit card, or other accepted payment method offered by Softrip via the ADP) to make payment of all sums due hereunder when and as such payments are due and payable pursuant to the terms of this Agreement, including applicable Taxes, Fees past due, or late payment interest, where applicable. Softrip will, directly or through its Payment Processor, debit the account on the dates the payments become due. If a due date does not fall on a business day, Softrip will debit the account on the first business day following the due date. Customer will maintain sufficient funds in the account on the dates Softrip or its Payment Processor enters debits authorized by this Agreement. Should, for any reason whatsoever, funds in Customer’s deposit account be insufficient to pay the sums due, Customer will, immediately upon demand, remit to Softrip the full amount of any such deficiency.
4. Tour Operator Payment Processors. The Platform includes features that enable Customer to collect payments from, or offer financing options to, Travelers or Travel Agents in connection with the sale of Travel Packages as part of Customer’s Tour Operator Business. Softrip’s current primary Payment Processor made available as part of the “Softrip Payments” module within the Platform is Payrix Solutions, LLC (“Payrix”). Customer understands and agrees that payment processors engaged in such collections or financing offerings are Third-Party Products for purposes of this Agreement, and that (a) such Payment Processors will charge fees from amounts collected on behalf of Customer to be deducted automatically by the Third-Party Product provider prior to remittance to Customer, which fees will be disclosed and itemized within the appropriate sections in the Customer’s Account, (b) Softrip is not a guarantor of any collection efforts or any failure to collect sums by that Third-Party Product provider on behalf of Customer and does not assume any cost, liability, or risks of Customer’s collection efforts, rights, or obligations, (c) the use of any Third-Party Product payment processor or financing provider is subject solely to the terms established between Customer and the Third-Party Product provider. Softrip does not promise, warrant, or represent that Customer’s merchant, sub-merchant or similar credit or financial application with the Payment Processor, including Payrix, will be approved by the Payment Processor, or that the Payment Processor will agree to work with Customer in the provision of the Third-Party Product. Any rate quoted by Softrip on an Order Form pertaining to the “Softrip Payments” functionality powered by Payrix does not apply to any other third-party Payment Processor other than Payrix (for example, if Customer elects to use an alternate Payment Processor with the Platform). If a different Payment Processor is quoted, the quoted rate applies only to that specified Payment Processor. If Customer’s application with Payrix or other Payment Processor is rejected or declined, Softrip will use commercially reasonable efforts to collaborate with Customer to identify an alternate Payment Processor, in which case fees chargeable in connection with use of such Payment Processor will be estimates only until such time as Payment Processor accepts Customer’s application.
5. Taxes. Fees do not include Taxes. Customer is responsible for paying all Taxes associated with its purchases hereunder, including without limitation all use or access of the Softrip Offerings by its Internal Users. If Softrip has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Softrip will invoice Customer, and Customer will pay that amount unless Customer provides Softrip with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to Softrip, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, Softrip receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon Softrip’s request, Customer will provide to Softrip its proof of withholding tax remittance to the respective tax authority. Where applicable, Customer will provide the value-added tax/GST registration number of the business location(s) where Customer is legally registered and the ordered services are used for business use on the Order Form to confirm the business use of the purchased services.
6. Payment Disputes. Softrip will not exercise its rights under Section 14.2 (Termination for Cause) or Section 14.5(a) (Suspension of the Softrip Offerings) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party will have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
7. Audit. Softrip or its nominee (including its accountants and auditors) may, upon at least 30 days’ notice, audit Customer’s use of the Softrip Offerings under this Agreement at any time during the Subscription Term and for one (1) year thereafter to verify the accuracy of Fees paid and/or payable under any Order Form. All audits will be conducted during regular business hours, no more frequently than once in any calendar year, and in a manner that does not unreasonably interfere with Customer’s business operations. Customer will provide reasonable cooperation and assistance with respect to such audit. If the audit determines that Customer’s use of the Platform or Softrip Offerings exceeded the usage permitted by this Agreement, Customer will pay to Softrip all additional amounts due for such excess use at the prorated amounts based on Fees payable pursuant to the Order Form or Softrip’s then-current standard prices for such items, whichever is higher (unless a different amount is agreed in writing by Softrip as part of a settlement of a dispute). If the audit determines that such excess resulted in underpayments of $15,000 or more, Customer will also pay to Softrip all costs incurred by Softrip in conducting the audit. Customer will make all payments required under this Section within thirty (30) days of the date of written notification of the audit results.
Term and Termination
1. Term. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with its terms. If there is no Order Form, SOW, or Retrieval Right currently in effect, either party may terminate this Agreement upon written notice to the other party. Each Order Form will terminate upon expiration of the applicable Subscription Term unless expressly stated otherwise therein or in this Agreement.
2. Termination for Cause.Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after written notice (without limiting Section 14.3 (Payment Disputes)); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. For any termination of this Agreement by Customer for cause in accordance with Section 14.2(a), Customer will be entitled to a refund of any prepaid unused Fees for the Platform purchased hereunder.
3. Effect of Termination; Customer Data Retrieval.Upon written notice to Softrip, Customer will have up to thirty (30) calendar days from termination or expiration of this Agreement to access the Platform solely to the extent necessary to retrieve Customer Data (“Retrieval Right”). If Customer exercises its Retrieval Right, this Agreement and the applicable Order Form will continue in full force and effect for the duration of the Retrieval Right. Softrip will have no further obligation to make Customer Data available after termination of this Agreement and will thereafter promptly delete Customer Data. After the Retrieval Right period, Customer will have no further access to Customer Data and will cease use of and access to the Softrip Offerings (including any related Softrip Technology) and delete all copies of Service Software, Documentation, any associated passwords or access codes, and any other Softrip Confidential Information in its possession. Notwithstanding any termination or anything to the contrary in this Agreement or any Order Form, Customer will pay for all of its use of the Softrip Offerings.
4. Survival. The following sections will survive any expiration or termination of this Agreement: 5 (General Restrictions), 11 (Intellectual Property), 12 (Confidentiality), 13 (Fees, to the extent Fees are unpaid), 14 (Term and Termination), 15.4 (Disclaimer), 16 (Indemnification), 17 (Limitation of Liability), 18 (General Terms), and 19 (Definitions).
5. Suspension of the Softrip Offerings. In addition to any of its other rights or remedies (including, without limitation, any termination rights) stated in this Agreement, Softrip reserves the right to suspend the provision of the Softrip Offerings: (a) if any Fees are thirty (30) days or more overdue (and are not otherwise subject to Section 13.6 (Payment Disputes)); (b) if Softrip deems such suspension necessary as a result of Customer’s breach of Sections 5 (General Restrictions) or the AUP; (c) if Softrip reasonably determines suspension is necessary to avoid material harm to Softrip, to Customer, or to Softrip’s other customers, including if the Platform is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Softrip’s control; or (d) as required by law or at the request of governmental entities. To the extent reasonably feasible, given the nature of the issue giving rise to the suspension, Softrip will give Customer advance notice of the suspension. Softrip will, promptly and without undue delay, restore access to the Softrip Offerings as soon as the issue giving rise to the suspension has been remedied and will, to the extent reasonable and/or technically feasible, limit the suspension to the affected users, features, or Affiliates.
Warranty
1. Service Warranty. Softrip warrants that: (a) the Platform will operate in substantial conformity with the applicable Documentation; and (b) Technical Services and Deliverables will be provided in a professional and workmanlike manner and substantially in accordance with the specifications in the applicable SOW. If Softrip is not able to correct any reported non-conformity with this warranty, either party may terminate the applicable Order Form or SOW (as applicable), and Customer, as its sole remedy, will be entitled to receive a refund of any prepaid unused Fees for the applicable Service or Technical Services purchased thereunder. This warranty will not apply if the error or non-conformance was caused by misuse of the Platform or Deliverables, modifications to the Platform or Deliverables by Customer or any third-party, or third-party hardware, software, or services used in connection with the Platform. For Technical Services and Deliverables, this warranty will not apply unless Customer provides written notice of a claim within thirty (30) days after the expiration of the applicable SOW.
2. Mutual Warranty.Each party warrants that it has validly entered into this Agreement and has the legal power to do so. Each party warrants that it will use reasonable and diligent efforts to prevent the introduction into the Platform or related systems used by the other party any virus, malware, or other unauthorized means of access to Customer Data or the underlying systems, networks or devices used to operate or access the Platform.
3. Compliance with Applicable Laws.Softrip will provide the Softrip Offerings in accordance with its obligations under laws and government regulations applicable to Softrip’s provision of such services to its customers generally, including, without limitation and as applicable, those related to data privacy and data transfer, electronic communications, and the exportation of technical or personal data, without regard to Customer’s particular use of the Softrip Offerings and subject to Customer’s use of the same in accordance with this Agreement and applicable law. However, Customer understands and agrees that the Platform is not designed or verified for compliance with any country-specific laws or regulations, including but not limited to, laws or regulations governing the marketing, offer, sale, management, provision, or delivery of Travel Packages. AT ALL TIMES CUSTOMER REMAINS SOLELY RESPONSIBLE FOR ENSURING THAT IT AND ITS USERS’ AND ANY PERMITTED THIRD-PARTY ACCESS AND USE OF THE PLATFORM (WHETHER CUSTOMER-HOSTED OR OTHERWISE) COMPLIES WITH LAWS APPLICABLE TO THE CUSTOMER’S BUSINESS, ORGANIZATION, AND INDUSTRY, AND SOFTRIP DOES NOT WARRANT OR REPRESENT THAT THE USE OF THE PLATFORM WILL ACHIEVE, MAINTAIN, OR GUARANTEE CUSTOMER’S COMPLIANCE WITH THE SAME.
4. Disclaimer. Customer acknowledges and agrees that Softrip is the developer of the Platform but is not the marketer, seller, manager, or provider of any Travel Packages. As between Customer and Softrip, Customer (and not Softrip) is solely responsible for all obligations, duties, liabilities, and risks owed to Travelers, Travel Agents, Travel Providers and anyone else, related to the Travel Packages marketed, offered, sold, managed via the Platform, or otherwise provided by Customer or its Travel Providers, including any fees, charges, taxes, penalties, reimbursements, credits, or other costs and expenses incident to any disputes between Customer and any Traveler, Travel Agent, Travel Provider or other User. Customer is solely responsible for ensuring the timeliness, legality, enforceability, safety, and suitability of Travel Packages offered by Customer and any terms and conditions pertaining to the same, and hereby releases Softrip of any and all liability incident to Customer’s marketing, sale, delivery and commercialization of the Travel Packages. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, EACH SOFTRIP OFFERING, THE IS PROVIDED “AS IS,” AND SOFTRIP MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SOFTRIP DOES NOT WARRANT THAT THE USE OF ANY SOFTRIP OFFERING WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES SOFTRIP WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY.
Indemnification
1. Indemnification by Softrip. Softrip will defend Customer against any claim by a third party alleging that a Softrip Offering, when used in accordance with this Agreement, infringes any intellectual property right of such third party and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Softrip (including reasonable attorneys’ fees) resulting from such claim. If Customer’s use of the Softrip Offering results (or in Softrip’s opinion is likely to result) in an infringement claim, Softrip may either: (a) substitute functionally similar products or services; (b) procure for Customer the right to continue using the Softrip Offering; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement, or the applicable Order Form or SOW, and refund to Customer any prepaid unused Fees for the applicable Softrip Offering for the period of non-use resulting from the claim. The foregoing indemnification obligation of Softrip will not apply to the extent the applicable claim is attributable to: (1) the modification of the Softrip Offering by any party other than Softrip or based on Customer’s specifications or requirements; (2) the combination of the Softrip Offering with products, data, software, or processes not provided by Softrip; (3) any use of the Softrip Offering in breach of this Agreement; or (4) any action arising as a result of Third-Party Products, Customer’s breach of its obligations to Travelers, Travel Agents, Travel Providers, or other third parties related to Travel Packages or the User Agreement, or based on the unauthorized supply or disclosure to Softrip of Customer Data, or any deliverables, data, services, or components not provided by Softrip. This section sets forth Customer’s sole remedy with respect to any claim of intellectual property infringement.
2. Indemnification by Customer.Customer will defend Softrip against any claim by a third party arising from or relating to any Customer Data, Customer Materials, any Travel Packages, breach of the User Agreement, or any other item or service marketed, sold, performed or provided by Customer via the Platform and will indemnify and hold harmless Softrip from and against any damages and costs awarded against Softrip or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim. The foregoing indemnification obligation of Customer will not apply to the extent the applicable claim is attributable to Softrip’s breach of this Agreement or independent violation of applicable laws or regulations, which breach or violation was not caused by Customer.
3. Indemnification Procedures.In the event of a potential indemnity obligation under this Section 16, the indemnified party will: (a) promptly notify the indemnifying party in writing of the claim, (b) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (c) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section 16 will not relieve the indemnifying party of its obligations under this Section. However, the indemnifying party will not be liable for any litigation expenses the indemnified party incurred before such notice was given, or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under this Section 16 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
Limitation of Liability.EXCEPT AS TO “EXCLUDED CLAIMS,” TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT:
1. NEITHER PARTY NOR ITS AFFILIATES WILL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, COSTS OF DELAY, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE;
2. SUBJECT TO SUBSECTION 17.3 BELOW, EACH PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE TO SOFTRIP IN THE PRIOR 12 MONTHS UNDER THE APPLICABLE ORDER FORM(S) OR SOW TO WHICH SUCH LIABILITY RELATES (“GENERAL LIABILITY CAP”);
3. IN THE CASE OF “HEIGHTENED CLAIMS,” EACH PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO TIMES (2X) THE AMOUNT ACTUALLY PAID OR PAYABLE TO SOFTRIP IN THE PRIOR 12 MONTHS UNDER THE APPLICABLE ORDER FORM(S) OR SOW TO WHICH SUCH LIABILITY RELATES (“SUPERCAP”);
4. IN NO EVENT WILL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE SUPERCAP. SIMILARLY, THOSE CAPS WILL NOT BE CUMULATIVE; IF A PARTY (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE SUPERCAP;
5. THE PARTIES AGREE THAT SECTION 17 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; AND
6. THE APPLICABLE MONETARY CAPS STATED IN SECTION 17 WILL APPLY, ON AN AGGREGATED BASIS, ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) GOVERNING CUSTOMER’S OR ITS AFFILIATE’S USE OF THE SOFTRIP OFFERINGS ENTERED INTO BETWEEN SOFTRIP OR SOFTRIP’S AFFILIATES AND ANY OF CUSTOMER’S AFFILIATES.
General Terms
1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in its entirety in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities to such party’s successor; and Softrip may assign this Agreement in its entirety to any Affiliate. Each party will promptly provide notice of any such assignment. Any attempt to transfer or assign this Agreement except as expressly authorized under this section will be null and void.
2. Severability; Interpretation.If a court of competent jurisdiction holds any provision of this Agreement to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect. Section headings are inserted for convenience only and will not affect the interpretation of this Agreement.
3. Dispute Resolution.Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly stated below) it will provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video or teleconference) for the purpose of attempting, in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation, or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this section will not apply to claims subject to indemnification under Section 16 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets, or Confidential Information.
4. Governing Law; Jurisdiction and Venue; Softrip Affiliate.This Agreement will be governed by the laws of the State of Delaware and the United States without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods; and the jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in New Castle County, Delaware, and both parties hereby submit to the personal jurisdiction of such courts. While the Softrip entity contracting with Customer or the Customer Affiliate remains fully liable and responsible for all Softrip obligations under this Agreement, the parties acknowledge that certain obligations under this Agreement may be fulfilled by other Softrip Affiliates, including without limitation, Softrip LLC.
5. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses stated in this Agreement or at such other address as may be given in writing by either party to the other in accordance with this section and will be deemed to have been received by the addressee: (a) if given by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch; (c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (d) if given by email, immediately upon receipt. Email notifications to Softrip will be to legalnotices@softrip.com. Notwithstanding the foregoing, except for notices pertaining to non-payment and except as otherwise expressly permitted in this Agreement or in an Order Form, notices related to termination of this Agreement or any claims (including without limitation breach, warranty or indemnity) may not be given via email.
6. Amendments; Waivers.No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement, except as expressly stated herein. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void, notwithstanding any language to the contrary therein, whether signed before or after this Agreement.
7. Entire Agreement.This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Softrip may change and update the Platform (in which case Softrip may update the applicable Documentation accordingly), subject to the warranty in Section 15.1 (Service Warranty).
8. Third-Party Beneficiaries.There are no third-party beneficiaries under this Agreement.
9. Force Majeure.Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government, acts of terrorism, or war.
10. Independent Contractors; Subcontractors.The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent, and neither party’s employees are eligible for any form or type of benefits, including, but not limited to, health, life or disability insurance, offered by the other party to its employees. Softrip may use subcontractors as part of this Agreement, and Customer consents to the use thereof. Subcontractors who are Sub-processors under the DPA are subject to additional terms, which will take precedence over conflicting terms in this Agreement.
11. Mutual Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, neither party will solicit, directly or through others, the personnel of the other party directly involved in the performance or receipt of Technical Services, Support, engineering, or other services under this Agreement to leave their employment with the other party. The foregoing will not preclude either party from hiring persons that voluntarily and without breach of this Section respond to a general solicitation of employment.
12. Export Control.Customer and Softrip agree to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (a) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) Customer will not (and will not permit any third parties to) access or use the Platform in violation of any U.S. export embargo, prohibition or restriction, and (c) Customer will not submit to the Platform any information that is controlled under the U.S. International Traffic in Arms Regulations.
13. Electronic Signature and Counterparts. The parties may execute any documents hereunder electronically (including by means of a checkbox) in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.
14. Marketing. Softrip may use and display Customer’s name, logo, trademarks, and service marks on Softrip’s website and in Softrip’s marketing materials in connection with identifying Customer as a customer of Softrip. Upon Customer’s written request sent to legalnotices@softrip.com, Softrip will promptly remove any such marks from Softrip’s website and, to the extent commercially feasible, Softrip’s marketing materials. If Softrip requests, and subject to Customer’s consent in Customer’s sole discretion, Customer may participate in a case study, press release, and/or cooperate with Softrip in speaking to the media, and/or to speak at a future Softrip event.
Definitions

“Acceptable Use Policy” means Softrip’s Acceptable Use Policy document, as updated from time to time.

“Account” means Customer’s logically separate implementation of the Platform configured for Customer.

“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used in this definition, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.

“Change Order” means a change order or amendment to an SOW that is agreed to and signed in writing by both parties with respect to any Technical Services to be performed hereunder.

“Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or reasonably should be known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Customer Data will be deemed Confidential Information of Customer without any marking or further designation, excluding Customer Materials that Customer designates, posts, or approves for public dissemination via the Platform (including, for example, descriptions of Travel Services and associated pricing, terms, descriptors, or any other website content facilitated by the Platform). All Softrip Technology and the terms and conditions of this Agreement will be deemed Confidential Information of Softrip without any marking or further designation. Confidential Information will not, however, include information that the Receiving Party can demonstrate: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the Receiving Party who had no access to such information.

“Customer Data” means any data or data files of any type that are uploaded by or on behalf of Customer to the Platform.

“Customer Materials” means any materials provided to Softrip in connection with Technical Services.

“Deliverables” means the customizations, scripts, custom or modified connectors, or other deliverables specifically identified as such in a SOW that Softrip provides to Customer in connection with Technical Services. For clarity, Softrip may use templates, scripts, compilers, assemblers, interpreters, and similar tools to develop Deliverables. The term “Deliverables” does not include such tools.

“Disclosing Party” is defined in Section 12 (Confidentiality).

“Documentation” means Softrip’s then-current and generally available technical documentation and usage guides for the Platform, currently set forth on the Softrip Knowledgebase, as updated from time to time.

“DPA” means the Customer Data Processing Addendum, as updated from time to time.

“Excluded Claims” means obligations and claims based on: (a) a party’s breach of its obligations in Section 12 (Confidentiality) (but excluding obligations and claims relating to Customer Data or any Heightened Claim); and/or (b) liability which, by law, cannot be limited (e.g., tort claims for gross negligence and intentional misconduct).

“Feedback” means any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the Softrip Offerings relating to Softrip’s products or services.

“Fees” means the fees payable by Customer to Softrip for the applicable Softrip Offerings. For Technical Services, the applicable Fees are as stated in the relevant SOW, and “Fees” also includes travel, lodging, meal and other expenses incurred in the course of providing Technical Services, but only if the applicable SOW specifies that expenses are reimbursable (in which case they will be reimbursed consistent with Customer’s provided travel expense policies and procedures).

“Heightened Claims” means any claims arising from (a) a party’s breach of Section 10 (Customer Data), or Section 12 (Confidentiality), or, if applicable, the DPA, where such breach results in the unauthorized disclosure or processing of Customer Data, or (b) breach of Section 5 (General Restrictions) or the AUP, (c) either party’s express obligations under Section 16 (Indemnification).

“Order Form” means the Softrip ordering document (and/or SOW, if applicable) governed by this Agreement that is signed by Softrip and Customer and specifies the Softrip Offerings procured by Customer.

“Platform” means Softrip’s travel booking and management platform and related solutions made generally available and ordered by or for Customer as identified in an Order Form, including any generally-available updates, upgrades, hot-fixes, emergency patches, or other such versions as Softrip releases generally to all customers with an active subscription to the Platform. The Platform includes Connectors (whether separately charged or otherwise) but excludes Third-Party Products.

“Prelease Terms” means the Prelease Terms, as updated from time to time.

“Receiving Party” is defined in Section 12 (Confidentiality).

“Retrieval Right” is defined in Section 14.3 (Effect of Termination; Customer Data Retrieval).

“Security Addendum” means the Softrip Security Addendum, as updated from time to time.

“SLC” means the Softrip Service Level Commitment, as updated from time to time.

“Softrip” means Softrip Inc. or its Affiliate, as applicable and designated in the Order Form.

“Softrip Offering(s)” means the Platform, Application Software (if Customer-Hosted), Connectors, Documentation Technical Services, Deliverables, and any Support Services and other ancillary services (including, without limitation, services to prevent or address service or technical problems) provided by Softrip.

“Softrip Technology” means the Softrip Offerings, and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated therein, and all intellectual property rights of any nature vested therein.

“SOW” or “Statement of Work” means a statement of work mutually agreed by Customer and Softrip for the provision of Technical Services and that is governed by this Agreement.

“Subscription Term” means the period of time during which Customer is authorized to access the relevant Softrip Offering(s), as specified in the applicable Order Form.

“Support Policy” means the Softrip Support Policy, as updated from time to time.

“Support Services” means the technical support and maintenance services for the Platform or Application Software provided by Softrip as more specifically described in the Support Policy.

“Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction, but excluding any taxes based on net income, property, or employees of Softrip.

“Technical Services” means the implementation, training, configuration, or other professional services provided by Softrip to Customer under an Order Form or SOW.

“Third-Party Products” means separate or third-party data, services, offerings, or applications (and other consulting services related thereto) purchased, licensed, developed, or subscribed to by Customer that interoperate with the Platform, which Third-Party Products may be subject to an independent agreement with the third-party provider, or to supplemental terms to this Agreement as provided by Softrip.

“Travel Services” means travel offerings, insurance, packages, reservations, stays at a property, flights, car or other vehicular rentals, travel activities or goods, things to do, or any other tourist or travel services offered to consumers or businesses.

“Usage Data” means usage and operations data in connection with the Customer’s use of the Platform, including query logs and metadata (e.g., object definitions and properties).

“User” means an employee or contractor of Customer or its Affiliates acting on Customer or its Affiliate’s behalf to whom Customer or its Affiliates grants login access to the Account, excluding, in any event, Travelers and Travel Agents. Users may include Travel Providers where use is tied to User-based fees per the Order Form.

Terms of Use – September 6, 2023