Name and address of activity provider
(hereinafter referred to as the "Merchant")
(hereinafter referred to as the "Merchant")
TrekkSoft AG, Hauptstrasse 15, CH 3800 Matten b. Interlaken, Switzerland
(hereinafter referred to as "TS")
Services provided by TS
TS agrees to provide Merchant, within the scope of this agreement, with its TrekkSoft booking and collection platform (hereinafter referred to as "TSP") and to update and maintain the required software and infrastructure on a regular basis. TSP offers an "opt-in" option for Merchants for additional distribution (see below). If such option is activated by Merchant, the TSP enables direct transactions between Merchant and the end customers of the distribution partners of TS.
Intellectual Property and Merchant Content
The design and maintenance of the TSP content is the sole responsibility of Merchant. Merchant hereby guarantees that the entire content used on its TSP such as the designs, texts, graphics, logos, icons, images, photographs, digital downloads, etc. do not infringe any rights of third parties, in particular no intellectual property rights, and that as far as such protected content is used, it is acting with the prior written consent of the owner of such rights. Merchant hereby undertakes to hold TS harmless for any damages incurred of any kind or nature, including but not limited to direct, indirect, immediate, incidental, consequential, exemplary, special (including loss of profit), punitive or other damages arising from or in connection with infringements of third party rights through its TSP, including reasonable lawyer’s fees.
Limitation of Liability
Merchant hereby guarantees to TS that all the services and products offered by it on the TSP can be obtained under the offered conditions. Merchant also guarantees that it will fulfill, in compliance with the respective contract, all the contractual obligations with end customers that it enters into via the TSP. Merchant also agrees to enter cancellations of payments, rejections of offers, or similar transactions in connection with services paid for via the TSP, correctly in the TSP without delay. Merchant shall do so in such a way that the reverse transfer (refund) to the end customer's credit card is assured within the shortest time possible.
Taxes, VAT, Reverse Charge VAT
Merchant is itself responsible for correctly entering and paying its taxes. TS expressly advises Merchant that TS shall only pay VAT on the added value that it generates (corresponding to the Commission as defined hereinbelow), but not on the sales generated by Merchant (less Commission as defined hereinbelow). Place of performance for TS is Matten, Switzerland.
In case Merchant is domiciled outside of Switzerland, TS may apply for a “reverse charge” VAT scheme, which means that Merchant is solely responsible for declaring and paying VAT in accordance with applicable laws in its domicile country.
(Explanation of “reverse charge VAT scheme”: VAT is normally charged and accounted for by the supplier of the goods or services. However, in certain limited circumstances the recipient of goods or services, rather than the supplier, is obliged to account for the VAT due. If the “reverse charge” VAT is applicable, Merchant is solely responsible for the correct declaration and payment of the VAT.)
Credit Card Collection
Credit card collection in the context of the TSP is carried out by a credit card collection operator of TS’ choice, which shall be the sole and direct contracting party of Merchant in this respect. Merchant, however, hereby expressly acknowledges that any payments to TS by such credit card collection operator shall discharge the relevant credit card collection operator from its obligations vis-à-vis the Merchant. TS is hereby empowered by Merchant to work with any credit card collection operator or similar operator as TS may deem fit in its own absolute and unrestricted discretion and hereby consents to such choice by TS or any change of the credit card collection operator by TS without obtaining any further consent from Merchant. Merchant hereby in this respect empowers TS (i) to legally represent Merchant vis-à -vis any credit card collection operator or similar operator on its behalf and on its account, (ii) to enter into the contractual relationships in Merchant’s name that are required for this purpose with any credit card collection operator or similar operator chosen by TS, (iii) to receive payments from any such operator on Merchant’s behalf and (iv) to forward such payments to Merchant in accordance with the conditions of this agreement.
Payment of Fees
In return, Merchant shall allow TS to retain a fixed fee per transaction handled through the TSP (Transaction fee) and/or, if a subscription plan is chosen by Merchant, a monthly fixed fee (hereinafter each individually and jointly referred to as the "Commission"). Merchant hereby expressly authorizes TS to deduct the Commission from the amount transferred to it by the credit card collection operator and to transfer the remaining net amount to Merchant. The statement shall be prepared and the transfer made at the end of each month or week, to the bank account, PayPal Account, Payoneer Account, Skrill Account or any other transferee account as indicated by Merchant in the backend of TrekkSoft. Any payment fees charged from third parties (for example bank fees, intermediary bank fees etc.) are to be borne and the sole responsibility of the Merchant and may, if charged to TS, be set off against and be deducted from the aforementioned net amount. TS cannot be held responsible for third party costs or transfer fees arising from the transfer of funds to the selected account. The transfer to the bank account or alternative payment method thus indicated most recently by Merchant shall discharge TS from its payment obligations vis-à-vis Merchant in each case.
In case that Merchant chooses a subscription plan (Standard, Premium, Professional or Enterprise), it has to pay a fixed monthly subscription fee for the use of TS in return for a reduced rate for the payment gateway. The fixed monthly subscription fee is automatically charged to the credit card provided by Merchant. TS may offer varying payment gateway options limited to certain subscription plans. In case a third party payment gateway is chosen, TS is unable to control the flow of funds and shall not be held responsible for any functionality of any third party gateway. The parties hereto agree that in such case Merchant has a direct contractual relationship with the respective specific payment solution provider to which TS is not a party. TS shall not be liable to Merchant for any damage or loss incurred in connection with the use of such third party payment gateway.
Origin of Funds & Contractual Relationship
Merchant hereby assures TS and the credit card collection operator of the noncriminal origin of all the funds transferred in connection with the TSP and its unrestricted beneficial ownership of such funds. Merchant and TS agree that only Merchant is the contracting party of Merchant's end customers. Merchant hereby undertakes to refrain from any actions that could create the impression that TS is in a contractual relationship with Merchant's end customers or TS would otherwise be liable for the actions, omissions or any other behavior of Merchant. Merchant furthermore guarantees to TS that it is adequately insured against the risks incurred in its business operations. Merchant owns all necessary user rights with respect to and/or has sufficient legal title to all of the data collected from its customers in connection with the processing of such data by the TSP.
Opt-In for Automatic Emails
Merchant may "opt-in" to request TS to facilitate the contact of Merchant’s customers on Merchant’s behalf by email via the TSP. All emails subsequently sent to Merchant’s customers via the TSP will be sent from the email address provided by the Merchant originating the booking. Such emails may include, but are not limited to, booking confirmation emails, pre-trip reminder emails, post-trip emails and/or review request emails.
Opt-In for Distribution Channels
TS further offers different distribution channels as an "opt-in" option for Merchant in TSP. In case a Merchant chooses to "opt-in" into a distribution channel in TSP, Merchant is obliged to ensure that it meets the minimum requirements of the respective distribution channels (as defined in the TSP). Furthermore, by "opting-in" to extended distribution, Merchant agrees to pay a channel specific commission rate as defined for each channel and acknowledges that this channel specific commission rate is different from the standard TS commission rate. For all bookings generated via the channel manager, TS processes payments to the Merchant on a monthly basis based on the trip departure date. Payouts for bookings made via the channel manager are made in the indicated currency of the distribution channel. Merchant is responsible for all customer complaints and their safety. In the case of bookings generated via a distribution channel, TS only enables a direct transaction between the distribution channel and the Merchant. By no means is TS a party to such transactions and/or contractual relationships, nor liable in any way in connection therewith.
Merchants Obligations to Inform Customers
It is Merchant’s sole responsibility to ensure that recipients of any "opt-in" emails are appropriately informed about such use of their email address and, where necessary, appropriately consent to such use. Unless otherwise defined, customer data from bookings generated via the TrekkSoft Partner Network or the TrekkSoft Channel manager shall go into each of the databases of the selling partner as well as the Merchant. Each owner and/or user of such a database shall be solely responsible for ensuring that the acquisition, processing and dissemination of its data is in compliance with applicable laws and data protection standards.
Modifications to the Service and Prices
Prices for using TS are subject to change upon 30 days notice from TS. Such notice may be provided at any time by posting the changes to the TS Site (trekksoft.com) or the administration menu of the TS store via an announcement.
TS reserves the right to modify or discontinue its services (or any part thereof) at any time with or without prior notice.
TS shall not be liable to Merchant or to any third party for any modification, price change, suspension or discontinuance of its services.
Cancellation and Termination
TS hereby expressly reserves the right to demand that Merchant makes changes to the content on the TSP for good cause and, if Merchant refuses to do so, to block the TSP without further notice. Either party may terminate this agreement subject to one month notice effective at the end of each calendar month. This is without prejudice to the right of immediate termination for good cause.
Applicable Law and Jurisdiction
This agreement is governed exclusively by the substantive laws of the Swiss Confederation to the exclusion of conflict of law legislation as well as international law. The courts of Berne, Switzerland, shall have exclusive jurisdiction for all disputes arising out of or in connection with this agreement including the issue of the validity thereof. To the extent permitted by law, the Commercial Court of the Canton of Berne shall be competent.
3800 Matten b. Interlaken
+41 (0) 335 33 34 30
IBAN: CH19 8084 2000 0029 4463 1 (EUR)
IBAN: CH92 8084 2000 0029 4467 5 (CHF)
Bank Clearing: 80842
Swift (BIC): RAIFCH22842
Company Reg. Number: CHE-115.503.227
VAT ID: CHE115.503.227
CEO: Jon Fauver