Subscriber Services Agreement for RESERVATIONEXPERT™1. Parties
This Agreement is between Triton Distribution Systems, Inc., a Nevada Corporation, whose principal place of business is located at One Harbor Drive, Suite 300, Sausalito, California 94965, US (“Triton”); and you, the Subscriber (“Subscriber”) for a period of one (1) year from the Effective Date.
For purposes of this Agreement, each of the following terms shall have the meaning specified:
means a recorded act of purchase/allocation of unit or units of inventory made available by a vendor for distribution which is not speculative or fictitious in nature and results in a fee payable directly or indirectly by the traveler to the Subscriber and/or Triton.
2.2 "Client User"
means a third party for whom Subscriber provides travel-related services and whose use of the Services is authorized and governed by this Agreement.
means all manuals, operating procedures, instructions, guidelines, and other materials provided by TRITON to Subscriber, including oral instruction and electronic formats.
2.4 "Effective Date"
denotes the date this Agreement is accepted by Subscriber.
2.5 "Performance requirements"
denotes Subscriber’s minimum average monthly production of ticketed and/or booked segments as stipulated by Triton for Services subscribed hereto.
means the Internet-based, “front-end” proprietary software application for “Triton System”, which is developed and maintained by TRITON that allows Subscriber access to data and information contained within the Services in order to make travel-related Bookings for Client User(s); and whereby Subscriber is granted a non-exclusive, limited, revocable, license to download the permitted number of copies of the executable version of same to use solely in connection with ReservationExpert™ according to the terms and conditions of this Agreement, which limited license shall be immediately revoked upon termination of this Agreement.
means an active booking or a ticketed passive booking for the services of air, car, hotel, cruise, tour vendor or other travel-related services offered by vendors who participate in the TRITON System, less cancellations, exchanges or refunds thereof, which (i) is made by the Subscriber or a Client User directly via the Services; (ii) results in a fee payable directly or indirectly by the vendor to Triton, (iii) is not speculative, fictitious, and/or made solely for the purpose of achieving productivity-based booking objectives; and (iv) with respect to passive segment bookings, which maybe identified including without limitation to the following status codes: BK, BL, BN, HK, HL, HN, AN or GK.
means access to the TRITON System applications as subscribed hereto.
2.9 "Set Up Fee" and/or "Fees"
and/or "Fees" means the initial set up fee and/or other fees (including but not limited to the Triton Distribution Fee, shortfall fees, fulfillment fees and/or processing fees) charged to install or use the TRITON System and/or Services payable to Triton by Subscriber as set forth in this Agreement.
means any travel agent or other authorized person that has entered into a subscriber agreement with TRITON to gain access to the Services.
2.11 "Terminal Address"
means an electronic or computer assigned line address that enables the TRITON System to send information to a computer terminal (which may include without limitation an individual workstation, personal computer, or printer).
means any activity, which creates a message or query, by which Subscriber or Client User(s) access the TRITON System.
2.13 "Triton System"
means Triton’s proprietary, confidential, and/or trade secret global distribution system (commonly referred to as a computerized reservation system) and applications, including but not limited to ReservationExpert™, and Services, all of the foregoing which collects, stores, processes, displays and distributes information through computer terminals for air and ground transportation, lodging and other travel related products and services offered by third party travel Subscribers; and which enables Subscriber and Client User to (i) reserve or otherwise confirm the use of, or make inquiries or obtain information to such products or services; and/or (ii) issue tickets (including without limitation to paper or electronic formats) for the acquisition or use of such products or services.
3. Use of Services.
Subscriber shall utilize the Services strictly in accordance with this Agreement. SEE WARRANTIES, INDEMNIFICATION, WAIVER, NO THIRD PARTY LIABILITY, LIMITATION OF LIABILITY AND MISCELLANEOUS SECTION at the end of this Agreement. Prohibited uses include permitting use by, or training of or servicing of any third party (Client User excepted); making speculative, duplicative, and/or fictitious bookings; and any other use which may be prohibited by TRITON. Subscriber shall limit access to the Services to their employees, agents and Client Users having a need for such access and shall not disclose any information or content of the Services, or make the Services available to any other third party. Subscriber shall cause its employees or agents or Client User(s) to adhere to all terms and conditions of this Agreement. TRITON may at its sole discretion, enhance, modify the TRITON System and/or offer other Services to Subscriber at any time.
Fees (including shortfall fees relating to Performance Requirements) may be waived for the first year for new Subscribers by Triton. Fees for the selected Services may be mutually agreed to in writing by both parties for renewing Subscribers. Subscriber may propose enhanced, modified or new services in writing or via e-mail to their TRITON Account Executive. Authorized representatives of both parties shall execute an Addendum for the same on mutually agreed upon terms and conditions. Fees shall be paid by Subscriber to Triton immediately upon receipt of Triton’s invoice to Subscriber. Triton shall reserve the right to refuse or discontinue Services in the event of Subscriber’s failure to provide prompt payment. Any Set Up Fee shall be payable by Subscriber prior to commencement of Services which Set Up Fee shall be earned and non-refundable upon execution of this Agreement. Subscriber shall disclose to all Client Users all Fees charged to Client Users, including but not limited to Fees that are non cancelable and non refundable. Subscriber shall immediately notify TRITON with a thirty (30) day written notice (via facsimile or e-mail) of their intention to terminate this Agreement pursuant to the Notice requirements herein; provided however, that TRITON may at its sole discretion amend Fees to Subscriber at any time.
Each party shall keep the terms of this Agreement confidential and not disclose them to any third party (other than to their attorneys and accountants) without the other Party’s prior written consent, except as required by law. In the event any disclosure is compelled by law, Subscriber shall use best efforts to provide TRITON with a twenty-four (24) hour notice prior to such disclosure to permit TRITON to take all steps necessary with respect to an impending disclosure. In connection with this Agreement, a party (the “Receiving Party”) may receive information (in either oral or written form) of the other party (the “Disclosing party”), which is confidential, trade secret or proprietary in nature, including without limitation information about a party’s products, software, media, Services, and/or their Documentation (“Confidential Information”). The Receiving Party agrees that, during the term of this Agreement and thereafter, they shall keep the Confidential Information in strictest confidence and protect such Confidential Information by similar security measures as taken to protect their own Confidential Information. The parties recognize that the disclosure or use of a Disclosing Party’s Confidential Information by the Receiving Party in violation of the provisions of this Article, may cause injury to the Disclosing Party, and so in addition to any other remedies they may have, such Disclosing Party shall be entitled to preliminary and permanent injunctive relief without necessity of posting a bond. Upon termination of this Agreement, Subscriber shall return all Confidential Information, media and/or Documentation, and shall remove and uninstall all software code provided to Subscriber (or which has been provided by Subscriber to Client User) for the Triton System. Subscriber alternatively may certify to the destruction of same by an Executive Officer of Subscriber.
TRITON owns all right, title, and interest in the TRITON System. TRITON grants Subscriber a non-exclusive, non-transferable, revocable right to access the TRITON System (including download and use of applicable TRITON System computer code) in accordance with the terms and conditions of this Agreement. Subscriber shall not alter, change or modify the TRITON System in any way. Subscriber’s license to use and all other rights hereunder shall terminate immediately upon expiration or termination of this Agreement. Neither Subscriber (and if company is a Subscriber, none of Subscriber’s parent, subsidiaries, affiliates, employees or agents) shall, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the TRITON System; modify, translate or create derivative works based on the TRITON System; or rent, lease, distribute, sell, resell, assign, or otherwise attempt to or transfer rights to the TRITON System; Subscriber acknowledges that TRITON retains exclusive ownership worldwide of the TRITON System, any portions, iterations or copies thereof, and all rights therein.
7. WARRANTIES, INDEMNIFICATION, WAIVER, NO THIRD PARTY LIABILITY, LIMITATION OF LIABILITY AND MISCELLANEOUS SECTION. WARRANTIES.
THE TRITON SYSTEM IS PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND AND TRITON EXPRESSLY DISCLAIMS, ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO SUBSCRIBER OR CLIENT USER. TRITON DOES NOT REPRESENT OR WARRANT THAT THE TRITON SYSTEM SHALL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS SHALL BE CORRECTED, OR THAT THE TRITON SYSTEM AVAILABLE, IS FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. ANY MATERIAL DOWNLOADED, OR OTHERWISE OBTAINED THROUGH TRITON SYSTEM IS DONE AT SUBSCRIBER’S RISK AND SUBSCRIBER AND/OR OR CLIENT USER SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM(S), OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE TRITON SYSTEM. SUBSCRIBER REPRESENTS AND WARRANTS THAT NO WRITTEN OR ORAL PRESENTATION OR WARRANTY MADE, OR INFORMATION FURNISHED BY SUBSCRIBER TO TRITON, INCLUDING THE CUSTOMER PROFILE, CONTAINS ANY UNTRUE STATEMENT OF MATERIAL FACT. INDEMNIFICATION, WAIVER, NO THIRD PARTY LIABILITY. INDEMNIFICATION.
SUBSCRIBER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS TRITON, TO THE FULLEST EXTENT PERMISSIBLE UNDER LAW FOR ANY CLAIM (INCLUDING NON PAYMENT OF ANY FEES OR MONIES BY A CLIENT USER), LOSS, LIABILITY OR DAMAGES, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEY FEES AND EXPENSES (HEREINAFTER THE “CLAIM”), EXCEPT TO THE EXTENT OF THE SOLE NEGLIGENCE OF TRITON, ARISING DIRECTLY OR INDIRECTLY OUT OF OR RELATED TO SUBSCRIBER’S ACTIONS UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO: (1) ANY TICKET DIRECTLY OR INDIRECTLY ISSUED BY SUBSCRIBER OR ANY AUTHORIZED CLIENT USER OF SUBSCRIBER, WHICH RESULTS IN A DEBIT-MEMO TO SUBSCRIBER BY ANY TRAVEL PROVIDER OR TRAVEL PRODUCTS AND/OR SERVICES PROVIDER; OR WHICH EVIDENCES FRAUD OR MISUSE OF ANY CREDIT CARD OR OTHER PERSONAL OR FINANCIAL INFORMATION UNDER THIS AGREEMENT; (2) FEES (INCLUDING NON REFUNDABLE AND/OR NON CANCELABLE FEES) ARISING FROM USE OF SERVICES (WHICH MAY BE PROVIDED BY THIRD PARTIES VIA THE TRITON SYSTEM) BY SUBSCRIBER AND/OR ANY AUTHORIZED CLIENT USER INCLUDING BUT NOT LIMITED TO (A) TRAVEL SERVICES INCLUDING, WITHOUT LIMITATION, RESERVATIONS, SALES, TICKET PROCESSING AND ISSUANCE, AND SALES REPORTING (“FULFILLMENT SERVICES”); (B) MERCHANT ACCOUNT SERVICES, INCLUDING BUT NOT LIMITED TO PROCESSING OF CUSTOMER PAYMENT, TRAVEL AGENCY SERVICE FEE, SHIPPING AND HANDLING CHARGES AND/OR OTHER FEES VIA TRITON’S MERCHANT ACCOUNT (“PROCESSING SERVICES”); (C) RE-ISSUANCE OF TICKETS (INCLUDING, WITHOUT LIMITATION, RE-ISSUANCE OF TICKETS RESULTING FROM CANCELLATIONS, EXCHANGES AND/OR REFUNDS) VIA THE TRITON SYSTEM; AND/OR (D) ADDITIONAL ACCESS TO THIRD PARTY GLOBAL DISTRIBUTION SYSTEMS; (3) ALL CONSEQUENCES ARISING FROM SUBSCRIBER’S FAILURE TO, AND/OR CAUSE ITS CLIENT USERS TO, FULLY MAINTAIN AND ENSURE SECURE AND CONFIDENTIAL ACCESS TO THE TRITON SYSTEM (INCLUDING BUT NOT LIMITED TO PROMPTLY NOTIFYING TRITON WITHIN TWENTY-FOUR (24) HOURS OF ANY CHANGE OF SUBSCRIBER AND/OR CLIENT USER INFORMATION); (4) MISUSE OF TRITON SYSTEM WHICH RESULTS IN ANY DAMAGE TO TRITON SYSTEM INCLUDING BUT NOT LIMITED TO ERRORS OR SYSTEM FAILURE; AND FURTHER (5) SUBSCRIBER SHALL PROVIDE PROMPT WRITTEN NOTICE WITHIN FIVE (5) DAYS OF NOTICE OF ANY CLAIM. WAIVER.
NEITHER TRITON OR ITS THIRD PARTY LICENSORS SHALL BE LIABLE FOR, AND SUBSCRIBER HEREBY EXPRESSLY WAIVES AND RELEASES TRITON, AND ITS THIRD PARTY LICENSOR’S AND THEIR RESPECTIVE OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS, FROM AND AGAINST ALL OBLIGATIONS AND/OR LIABILITIES, CLAIMS AND REMEDIES WHICH MAY BE AVAILABLE TO SUBSCRIBER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, DUE TO ANY DEFECTS, ERRORS, MALFUNCTIONS, PERFORMANCE, FAILURE TO PERFORM, OR USE OF THE SERVICES, OR ANY PART THEREOF, INCLUDING ANY HYPERLINKS TO OTHER WEBSITES, OR FOR INTERRUPTIONS OF SERVICE, INCLUDING ANY LIABILITY OR CLAIM IN TORT, OR FOR LOSS OF REVENUE, PROFITS OR DATA, OR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, OR SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE AND EVEN IF TRITON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO THIRD PARTY LIABILITY.
TRITON PROVIDES ACCESS TO TRAVEL-RELATED PRODUCTS AND SERVICES PROVIDED BY THIRD PARTY VENDORS THAT TRITON DOES NOT CONTROL. TRITON SHALL NOT BE LIABLE AND SUBSCRIBER HEREBY RELEASES TRITON FROM ANY AND ALL LIABILITY ATTRIBUTABLE TO ANY BREACH OF CONTRACT OR ANY INTENTIONAL OR NEGLIGENT ACTION ON THE PART OF SUCH THIRD PARTY VENDORS, WHICH MAY RESULT IN ANY LOSS, DAMAGE, DELAY OR INJURY TO SUBSCRIBER OR THEIR CUSTOMERS. TRITON DOES NOT GUARANTEE THE RATES, BOOKINGS, CONNECTIONS, RESERVATIONS, SCHEDULING, CANCELLATIONS, AND/OR DELAYS BY AIRLINES, CRUISE LINES, HOTELS, CARS, TOURS, OF SUCH THIRD PARTY TRAVEL VENDORS. LIMITATION OF LIABILITY.
TRITON AND/OR ITS THIRD PARTY LICENSOR’S TOTAL LIABILITY, IF ANY, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), SHALL BE LIMITED TO THE LESSER OF US$1000 OR THE FEES PAID BY SUBSCRIBER TO TRITON FOR THE SERVICES UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE ACT OR INJURY THAT GAVE RISE TO THE LIABILITY. MISCELLANEOUS. MARKETING AND PRESS RELEASES.
WITHOUT PREJUDICE TO THE CONFIDENTIALITY OBLIGATIONS OF THIS AGREEMENT, TRITON MAY AT ITS SOLE DISCRETION (THROUGH THIRD PARTIES OR OTHERWISE) ISSUE PRESS RELEASES, GENERAL PUBLIC ANNOUNCEMENTS, CONDUCT PUBLIC RELATIONS INTERVIEWS AND/OR OTHER MARKETING EFFORTS THEREBY PUBLICLY COMMUNICATING INFORMATION INCLUDING, WITHOUT LIMITATION, THE EXECUTION OF THIS AGREEMENT AND/OR ITS ADDENDA, AND/OR TRITON’S RELATIONSHIP WITH SUBSCRIBER AND/OR ITS CLIENT USERS). TRITON CAN REQUEST QUOTES FROM SUBSCRIBER AND/OR ITS CLIENT USERS, AND SUBSCRIBER SHALL, DISCLOSE AND/OR CAUSE ITS CLIENT USERS TO, AGREE AND FULLY COOPERATE IN THESE MARKETING EFFORTS. NO ASSIGNMENT.
UNDER NO CIRCUMSTANCES SHALL THIS SUBSCRIBER SERVICES AGREEMENT OR THE LICENSE GRANTED HEREUNDER BE ASSIGNED, SOLD, LEASED, OR OTHERWISE TRANSFERRED BY SUBSCRIBER (DIRECTLY, INDIRECTLY OR BY OPERATION OF LAW THROUGH A MERGER, SALE OF CONTROLLING EQUITY INTEREST), WITHOUT THE PRIOR CONSENT OF TRITON. FORCE MAJEURE.
WITH THE EXCEPTION OF SUBSCRIBER’S PAYMENT OBLIGATIONS HEREUNDER, NEITHER PARTY SHALL BE HELD LIABLE OR RESPONSIBLE TO THE OTHER PARTY NOR BE DEEMED TO HAVE DEFAULTED UNDER OR BREACHED THIS AGREEMENT FOR FAILURE OR DELAY IN FULFILLING OR PERFORMING ANY TERM OF THIS AGREEMENT TO THE EXTENT, AND FOR SO LONG AS, SUCH FAILURE OR DELAY IS CAUSED BY OR RESULTS FROM: ANY ACT OF GOD, FIRE, FLOOD, NATURAL DISASTER, WAR, ACTS OF WAR (REGARDLESS IF WAR IS DECLARED), INSURRECTIONS, RIOTS, STRIKES, LOCKOUTS OR OTHER LABOR DISTURBANCES, DISRUPTION STEMMING FROM ANY INTERRUPTION IN SERVICE NOT DUE TO A CORRUPTION IN THE SERVICES, OR ANY ACTS, OMISSIONS OR DELAYS IN ACTING BY ANY GOVERNMENTAL AUTHORITY OR THE OTHER PARTY (EACH, A “FORCE MAJEURE EVENT”
). RIGHTS OF ENTRY.
TRITON OR THEIR AGENTS SHALL HAVE THE RIGHT TO ENTER UPON ANY LOCATION DURING NORMAL BUSINESS HOURS FOR THE PURPOSE OF (I) MONITORING THE USERS’ OPERATION OF THE SERVICES; AND (II) REMOVING THE SERVICES UPON TERMINATION OF THIS AGREEMENT. NOTICE.
ANY NOTICE PERMITTED OR REQUIRED TO BE GIVEN HEREUNDER SHALL BE SENT VIA FACSIMILE OR EMAIL FOLLOWED BY FIRST CLASS MAIL, POSTAGE PREPAID, OR ANY OTHER EXPEDIENT METHOD IN WRITING TO THE ADDRESS OF SUBSCRIBER AS SPECIFIED IN THIS AGREEMENT, AND RESPECTIVELY ATTENTION TO: LEGAL AFFAIRS, TRITON DISTRIBUTION SYSTEMS, INC., ONE HARBOR DRIVE, SUITE 300, SAUSALITO, CALIFORNIA 94965; EMAIL:; FAX: (415) 339 6137 AND SUBSCRIBER PER SUBSCRIBER’S INFORMATION SUBMITTED ONLINE.
This Agreement shall terminate immediately upon Subscriber’s material breach of any term or condition in this Agreement, and Subscriber’s access to the TRITON System shall be terminated and TRITON shall be entitled to seek all legal and equitable remedies to which it is entitled. All monies owed to TRITON by Subscriber shall be due and payable immediately, or thereafter shall bear interest at the highest legal limit available to TRITON.
9. Governing Law and Jurisdiction & Arbitration.
Except for TRITON’s right to equitable remedies (including without limitation to injunctive relief) all controversies arising under this Agreement shall be submitted to final and binding arbitration under seal in accordance with the American Arbitration Association in the City and County of San Francisco in the state of California, USA.
10. Export Controls.
Subscriber shall comply with, and ensure that its Affiliates, (including but not limited to authorized Client Users or other third parties) comply with, all local, state, federal, and international laws and regulations relating to the development, manufacture, use, and sale of the TRITON System. Subscriber shall comply with, and shall cause its Affiliates to comply with, all United States export control laws and regulations and shall bear sole responsibility for any violation of such laws and regulations by itself or its Affiliates.
If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby. All articles herein shall survive the termination of this Agreement.
12. Entire Agreement.
This Agreement, together with any attachments now or hereafter made, constitutes the entire agreement and understanding of the parties on the subject matter hereof and, as of the Effective Date, supersedes all prior written and oral agreements between the parties. In the event that the provisions of an attachment conflict with any terms herein, then the provisions of the attachment shall control. Triton reserves to right to approve or deny any Agreement.
BY CLICKING “I ACCEPT” IN THE CHECKBOX PROVIDED, SUBSCRIBER ACKNOWLEDGES ITS UNDERSTANDING AND ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL ATTACHMENTS AND ADDENDA THERETO.