This Software as a Service Agreement (the “Agreement”), effective as of the date its terms are accepted by clicking accept or agree below (the “Effective Date”), is by and between TripAround, Inc. a California Corporation with offices located at 300 Hamilton Avenue, Palo Alto, CA 94301, USA (“TripAround”) and the person or entity accepting this Agreement on or through an account profile with offices located at the address set forth in such account profile (“Customer”). If this Agreement is accepted on behalf of a company or other legal entity by a Representative (as defined below), such Representative represents and warrants that that it has the authority to bind such entity and its Affiliates to this Agreement.
By agreeing to this Agreement as set forth below, Customer acknowledges that it has read and understands the terms of this Agreement and accepts and agrees to be bound and abide by all of its terms and conditions as set forth below. Unless and until Customer agrees to the terms of this Agreement, Customer explicitly agrees to not use or access the Services in any manner and TripAround hereby explicitly prohibits all access and use of the Services.
WHEREAS, TripAround provides a Software-as-a-Service for the purpose of finding and booking Experiences (as defined below);
WHEREAS, TripAround provides access to its Software-as-a-Service offerings to certain hotels and travel professionals for the purpose of booking Experiences by or on behalf Guests;
WHEREAS, TripAround’s Software-as-a-Service also provides hotel operators and travel professionals with information regarding Guests’ prior Experiences so that hotels and travel professionals that subscribe to TripAround’s Software-as-a-Service may enhance their Guests’ travel experience by offering and booking similar Experiences during such Guests travel;
WHEREAS, Customer is a hotel operator or a travel professional;
WHEREAS, Customer desires to access those certain Software-as-a-Service offerings described above, and TripAround desires to provide Customer access to such offerings, subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
“Access Credentials"> means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, network links or connections, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than 50% of the voting securities of a Person.
“Aggregated Data” means data and information related to Customer’s use of the Services that is used by TripAround in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Agreement” has the meaning set forth in the Preamble.
“Availability Exceptions” has the meaning set forth in Section 4.1.
“Availability Requirement” has the meaning set forth in Section 4.1.
“Available” has the meaning set forth in Section 4.1.
“Confidential Information” has the meaning set forth in Section 7.
“Customer” has the meaning set forth in the Preamble.
“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer, by or through the Services. For the avoidance of doubt, Customer Data includes Personal Information of individuals who are not Guests but does not include Aggregated Data, Guest Data, or any other information reflecting the access or use of the Services by or on behalf of Customer.
“Customer Indemnitee” has the meaning set forth in Section 10.1.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
“Disclosing Party” has the meaning set forth in Section 7.
“Documentation” means any manuals, instructions, or other documents or materials that the TripAround provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or TripAround Materials.
“Effective Date” has the meaning set forth in the Preamble.
“Experience” means a travel activity for a Guest found and booked on or through the Services, including, without limitation, spa treatments, tours, sporting activities, restaurant reservations, and other similar travel/tourist activities.
“Feedback” has the meaning set forth in Section 8.4.
“Fees” has the meaning set forth in Section 6.1.
“Force Majeure Event” has the meaning set forth in Section 13.9.
“GDPR” means the EU General Data Protection Regulation (Regulation (EU) 2016/679) and all local laws, rules, or regulations implementing the foregoing.
“Guest” means a traveler who books, directly or indirectly (including through Customer or TripAround’s other customers), an Experience on or through the Services.
“Guest Data” means all information, data, and other content, in any form or medium, relating to Guests and any and all information, data, or other content derived therefrom.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer from accessing or using the Services or TripAround Systems as intended by this Agreement.
“Indemnitee” has the meaning set forth in Section 10.3.
“Indemnitor” has the meaning set forth in Section 10.3.
“Initial Term” has the meaning set forth in Section 12.1.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Permitted Use” means any use of the Services by Customer for the purpose of booking and managing Experiences directly for Guests.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Information” means names, addresses, email addresses, phone number(s), passport numbers, national ID card numbers, driver license numbers, travel interests, travel activities and any other information that, individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted, or located. Personal Information includes “personal data” as defined in the GDPR.
“Privacy Laws” means all Laws that relate to the confidentiality, integrity, availability, processing and/or protection of Personal Information, consumer information, electronic data privacy, trans- border data flow or data protection.
“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any Personal Information, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross- reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy.
“Processing” and “Processed” have correlative meanings.
“Processed” has the meaning set forth in the definition of Process.
“Processing” has the meaning set forth in the definition of Process.
“Receiving Party” has the meaning set forth in Section 7.
“Renewal Term” has the meaning set forth in Section 12.2.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“Scheduled Downtime” has the meaning set forth in Section 4.2. “Service Suspension” has the meaning set forth in Section 2.7.
“Services” means TripAround’s Software-as-a-Service offering described in the Preamble and in the Documentation.
“Subcontractor” has the meaning set forth in Section 2.6.
“Support Hours” has the meaning set forth in Section 4.3.
“Term” has the meaning set forth in Section 12.2.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to TripAround.
“TripAround” has the meaning set forth in the Preamble.
“TripAround Indemnitee” has the meaning set forth in Section 10.2.
“TripAround Materials” means the Services, Documentation, and TripAround Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by TripAround or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or TripAround Systems. For the avoidance of doubt, TripAround Materials include Aggregated Data and any information, data, or other content derived from TripAround’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
“TripAround Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of TripAround or any Subcontractor.
“TripAround Systems” means the information technology infrastructure used by or on behalf of TripAround in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by TripAround or through the use of third-party services.
From time to time during the Term of this Agreement and for a period of five (5) years thereafter, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) information about its business affairs, products/services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 7 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third-party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives before being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction. The Receiving Party shall: (i)protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Receiving Party shall be responsible for any breach of this Section 7 caused by any of its Representatives. On the expiration or termination of the Agreement, the Receiving Party shall promptly return, and shall require its Representatives to return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. In addition to all other remedies available at law, the Disclosing Party may seek equitable relief (including injunctive relief) against the Receiving Party and its Representatives to prevent the breach or threatened breach of this Section 7 and to secure its enforcement. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 7 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
|If to TripAround:||
300 Hamilton Avenue
Palo Alto, 94301
|If to Customer:||
If to Customer:
At Customer’s physical address listed in Customer’s profile.
Notices sent in accordance with this Section 13.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to controller transfers)
Data transfer agreement
Entity listed in Customer Profile through which the Agreement that this Exhibit is agreed to (name) Address listed in Customer Profile (address and country of establishment)
hereinafter “data exporter”)
TripAround, Inc. (name)
A California Corporation with offices located at 300 Hamilton Avenue, Palo Alto, CA 94301, USA (address and country of establishment)
hereinafter “data importer”
each a “party”; together “the parties”.
For the purposes of the clauses:
The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.
The data exporter warrants and undertakes that:
The data importer warrants and undertakes that:
These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under Section II(h), which shall apply only if so selected by the data importer under that clause.
The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under Section I(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
8. Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
(To be completed by the parties)
The personal data transferred concern the following categories of data subjects:
Guests (as defined in the main body of this Agreement to which this Exhibit A is attached to) who stay at Customer’s (as defined in the main body of this Agreement to which this Exhibit A is attached to) hotel properties or otherwise use Customer’s travel services and who book travel activities on or through the Services.
Also Customer Data (as defined in the main body of this Agreement to which this Exhibit A is attached to)
The transfer is made for the following purposes:
To provide Guests who book, directly or indirectly, Experiences (as defined in the main body of this Agreement to which this Exhibit A is attached to) on or through the Services with such Experiences and to enable Customers to enhance such Guests’ travel experience by suggesting new activities similar to what a Guest may have enjoyed previously.
The personal data transferred concern the following categories of data:
Names, addresses, email addresses, phone number(s), passport number(s), national ID card number(s), drivers’ license number(s), travel interests, travel activities and any other personal data, including sensitive data, as defined below.
The personal data transferred may be disclosed only to the following recipients or categories of recipients:
Sensitive data (if appropriate)
The personal data transferred concern the following categories of sensitive data:
The Services do not require the provision of sensitive data (as defined in GDPR), although Guests may occasionally provide sensitive data when necessary or useful for the fulfilment of an Experience or to provide them offers for new Experiences. For example, a Guest may indicate their religious beliefs so that an Experience may provide them facilities to observe such beliefs such as places of worship or specific dietary requirements.
Data protection registration of data exporter (where applicable)
As set forth in Customer’s account profile (if necessary