This Software as a Service Subscription Agreement ("Agreement") is entered into on the date you ("Customer") and TrekkSoft A.G. of Hauptstrasse 15, 3800 Matten bei Interlaken, Switzerland ("TrekkSoft") both sign an order form referencing this Agreement ("Order Form"), and such date shall be the "Effective Date".
Background
(A) TrekkSoft has developed a online booking system that can be accessed through the web and its mobile app, which it makes available to subscribers via the internet on a subscription basis.
(B) The Customer wishes to use the TrekkSoft- Service in its internal & external business operations.
(C) TrekkSoft has agreed to provide and the Customer has agreed to subscribe to and pay for TrekkSoft's service subject to the terms and conditions of this Agreement.
Agreed terms
1. Definitions.
Capitalized terms not otherwise defined in the Agreement shall have the meaning set out below:
Associated Companies: an entity that directly or indirectly controls, is controlled by, or is under common control with, a party to this Agreement. For purposes of the foregoing, "control" means the ownership of (i) greater than fifty per cent (50%) of the voting power to elect directors of the entity, or (ii) greater than fifty per cent (50%) of the ownership interest in the entity.
Authorised Users: those employees, agents and independent contractors of Customer who are authorised by Customer to use the Services, as further described in clause 2.3;
Authorised User Data: the personal data and information Authorised Users provide to TrekkSoft and/or inputted by Customer into the Service for the purpose of creating an account for an Authorised User, but excluding the Customer Data and TrekkSoft Data;
TrekkSoft Data: means (i) such information or data provided by TrekkSoft to Customer as part of the Services; (ii) any meta data extracted by TrekkSoft from Customer's use of the Services to be used to provide the Services; and (iii) any feedback or suggestions from Customer or Authorized Users to TrekkSoft relating to the Services;
Customer Data: the data and information provided by Customer to TrekkSoft and/or inputted by Customer, Authorised Users, or TrekkSoft on Customer's behalf for the purpose of using the Services or facilitating Customer's use of the Services or data collected and processed by or for Customer through Customer's use of the Services, but excluding TrekkSoft Data and Authorized User Data;
Customer: Customer refers to a TrekkSoft user who has a contractual relationship with TrekkSoft for the use of the TrekkSoft’s booking software for internal/ external business processes.
End client: End client refers to the customer of a TrekkSoft Customer, therefore the person who books an activity or tour via the Customer’s sales channel.
Claim Year: means each successive period of twelve (12) months commencing on the Effective Date of this Agreement;
Confidential Information: information of a party that is proprietary or confidential and is either clearly labelled as such; identified as Confidential Information in clause 10; and/or a reasonable person would understand to be confidential or proprietary at the time of disclosure;
Business Day: any day which is not a Saturday, Sunday or statutory public holiday in Switzerland;
Business Hours: 9.00 am to 5.00 pm central European time each Business Day;
Disaster Recovery Policy: the TrekkSoft disaster recovery policy currently in place as may be amended by TrekkSoft from time to time;
Fees: means the Subscription Fees and any additional fees or expenses as set out in the Order Form;
Initial Subscription Term: the initial term of the subscription as set out in the Order Form;
Inappropriate Content: content which (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or (f) causes damage or injury to any person or property;
Intellectual Property Rights: including without limitation, rights in patents, trademarks, service marks, trade names, other trade-identifying symbols and inventions, copyrights, design rights, database rights, rights in know-how, trade secrets and any other intellectual property rights arising anywhere in the world, whether registered or unregistered, and including applications for the grant of any such rights;
Order Form: the Order Form submitted by Customer to TrekkSoft with details of the Services and forming part of this Agreement;
Privacy Policy: the TrekkSoft privacy policy as amended from time to time (https://www.trekksoft.com/en/privacy/).
Renewal Period: has the meaning set out in clause 14.1 below;
Services: means (i) use of the Software in accordance with this Agreement, (ii) use of TrekkSoft Data; (iii) the provision of the Support Services and (iv) access to the Trekkoft hosting platform;
Software: the internal communications software applications provided by TrekkSoft as part of the Services and as set out in the Order Form;
Subscription Fees: the subscription fees payable by Customer to TrekkSoft for the User Subscriptions, as set out in the Order Form;
Subscription Term: means the Initial Subscription Term and any subsequent Renewal Periods;
Support Services: means the TrekkSoft standard support services provided by TrekkSoft in accordance with the Support Services Policy in respect of the Software, including any applicable Software maintenance upgrades;
SLA Support Services Policy: TrekkSoft's policy for providing the Support Services to Customer and where applicable, any enhanced support services which may be purchased by Customer, as made available to Customer from time to time;
Taxes:
including without limitations, withholding, sales, use, excise, value added tax and similar taxes but shall not include taxes based on
TrekkSoft's gross income;
Third-Party Applications:
means online applications and offline software products that are provided by third parties and interoperate with the Services;
User Subscriptions: the user subscriptions purchased by Customer in accordance with the Agreement for the number of Authorised Users as set out in the Order Form which entitle such Authorised Users to access and use the Services in accordance with this Agreement; and
Virus: any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the access to or operation, reliability or user experience of any computer software, hardware or network, telecommunications service, equipment or network or any other service or device, including worms, trojan horses, viruses and other similar things or devices.
2. User Subscription
2.1 TrekkSoft shall provide the Services during the Subscription Term in accordance with the terms set out in this Agreement.
2.2 Subject to the Customer purchasing the User Subscription(s), the restrictions set out in this clause 2 and the terms and conditions of this Agreement, TrekkSoft hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term.
2.3 In relation to the Authorised Users, Customer undertakes that:
2.3.1 the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time. Customer further undertakes that it will not allow any User Subscription to be used by more than one per individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
2.3.2 each Authorised User shall keep a secure password for his use of the Services, that such password shall be changed frequently and that each Authorised User shall keep his password confidential.
2.4 Customer shall not access, store, distribute or transmit any Viruses, or any material, including without limitation Customer Data and the Authorised User Data, during the course of its use of the Services that:
2.4.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.4.2 facilitates illegal activity; or
2.4.3 in a manner that is otherwise illegal or causes damage or injury to any person or property; and TrekkSoft reserves the right, without liability or prejudice to its other rights to Customer, to disable Customer's access to any material that
breaches the provisions of this clause.
2.5 Customer shall not:
2.5.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
2.5.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.5.3 access all or any part of the Services in order to build a product or service which competes with the Services; or
2.5.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorized Users, or
2.5.5 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.
2.6 Customer shall use all reasonable endeavours to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify TrekkSoft.
3. Additional User Subscriptions
Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Order Form for the additional fees set out in the Order Form and TrekkSoft shall grant access to the Services to such additional Authorized Users in accordance with the provisions of this Agreement.
4. Services Availability and Support
4.1 TrekkSoft shall use commercially reasonable endeavors to make the Services (excluding any Third Party Applications) available 24 hours a day, seven days a week and for at least 99.5 per cent of the time, excluding:
4.1.1 any planned downtime out of Business Hours which may occur on every first wednesday of the Month between 06:00 - 07:00 (CET);
4.1.2 any unplanned downtime provided to Customer on the site: https://trekksoft.statuspage.io ;
4.1.3 congestion whereby high traffic levels result in service disruption, caused by the Customer exceeding any agreed capacity;
4.1.4 Customer inaccessibility: if, for any reason, the Customer cannot be reached to correct an availability issue, then time will be frozen until TrekkSoft can make contact with the Customer to begin fixing the availability issue;
4.1.5 issues resulting from problems caused by Customer's failure to follow agreed procedures, or caused by unauthorized changes to the Services by the Customer;
4.1.6 material breach by Customer of the terms of this Agreement; or
4.1.7 a force majeure event.
4.2 TrekkSoft will, as part of the Services and at no additional cost to Customer, provide Customer with TrekkSoft's standard Support Services during Business Hours in accordance with TrekkSoft's SLA Support Services Policy for standard Support Services in effect at the time that the Support Services are provided. TrekkSoft may amend the SLA Support Services Policy in its sole and absolute discretion from time to time.
4.3 Customer may purchase enhanced support service packages separately, as may be offered by TrekkSoft from time to time, as detailed in an Order Form, at TrekkSoft's then current rates for any such additional support services (as notified to Customer by TrekkSoft from time to time).
5. Charges and payment
5.1 Customer shall pay the Subscription Fees and any additional applicable fees related to the Services as set out in the Order Form to TrekkSoft in accordance with this clause 5. Unless otherwise agreed in the Order Form, TrekkSoft may invoice Customer for the Subscription Fees yearly in advance on or after the Effective Date and thereafter on each anniversary of the initial invoice date for the duration of the Subscription Term.
5.2 Unless otherwise specified in the Order Form, all Fees and approved expenses shall be due immediately.
5.3 If TrekkSoft has not received payment for any invoices by the due dates and without prejudice to any other rights and remedies of TrekkSoft, TrekkSoft
may:
5.3.1 by giving thirty (30) Business Days prior written notice to Customer, without liability to Customer, disable Customer's password, account and access to all or part of the Services and TrekkSoft shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
5.3.2 charge interest which shall accrue on such due amounts at the higher of (i) an annual rate equal to 5% or (ii) the standard statutory delay interest rate under applicable law.
5.4 All amounts and Fees stated or referred to in this Agreement are non-refundable and are exclusive of all Taxes. Customer shall be solely responsible for, and paying all applicable Taxes relating to this Agreement, and the use or access to the Services.
5.5 TrekkSoft shall be entitled to increase the fees or add new fees for extended services for User Subscriptions with effect from the start of each Renewal Period and the Agreement shall be deemed to have been amended accordingly.
6. Customer Obligations
6.1 Customer shall:
6.1.1 provide all necessary co-operation and information as may be reasonably required by TrekkSoft in order to provide the Services. In the event of any delays in Customer's provision of such assistance, TrekkSoft may adjust any agreed timetable or delivery schedule as reasonably necessary;
6.1.2 ensure that its Authorised Users use the Services in accordance with the terms and conditions of this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement and only use the Services for lawful purposes. Customer shall be liable for any Authorised User's breach of this Agreement;
6.1.3 be solely responsible for procuring and maintaining its network connections and telecommunications links and all problems, conditions, delays and delivery failures arising from or relating to Customer's network connections or telecommunications links;
6.1.4 use all reasonable efforts to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify TrekkSoft;
6.1.5 not include any Inappropriate Content or Viruses or any other information or material, any part of which, or the accessing of which or use of which would be a criminal offense or otherwise unlawful including the breach of any Intellectual Property Rights of any other party. TrekkSoft reserves the right, but is not obliged, to remove such content from where, in its sole and reasonable discretion, TrekkSoft suspects such content to be Inappropriate Content, upon notice to Customer;
6.1.6 be solely responsible for moderating any content posted by Authorised Users and advising Authorised Users what they may and may not post through the Services by means of Customer's own policies;
6.1.7 be solely responsible for the accuracy, completeness, design, appropriateness, creation, maintenance, and updating thereof of all Customer Data in the use of the Services. TrekkSoft shall not be liable for any errors or inaccuracies in any Customer Data or beyond its responsibility to accurately reproduce such Customer Data on Customer's instruction; and
6.1.8 be responsible for obtaining all necessary licenses and consents required to use Customer Data (if any, and including but not limited to those from the owners or licensees of any third party information) and as part of the Services and Customer warrants and represents that such licenses and consents have been obtained.
6.1.9 Opt-In for Automatic Emails: Customer may "opt-in" to request TrekkSoft to facilitate the contact of end clients on customer’s behalf by email via the TrekkSoft platform. All emails subsequently sent to Merchant’s customers via the TrekkSoft platform will be sent from the email address provided by the Customer 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.
6.2 Opt-In for Distribution Channels: TrekkSoft further offers different distribution channels as an "opt-in" option for Customer in the TrekkSoft platform. In case a Customer chooses to "opt-in" into a distribution channel in the TrekkSoft platform, Customer is obliged to ensure that it meets the minimum requirements of the respective distribution channels (as defined in the TrekkSoft platform). Furthermore, by "opting-in" to extended distribution, Customer 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 TrekkSoft commission rate. In the case of bookings generated via a distribution channel ,TrekkSoft only enables a direct transaction between the distribution channel and the Customer. For all bookings generated via the channel manager,TrekkSoft processes payments to the Customer 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. Customer is responsible for all customer complaints and their safety. By no means is TrekkSoft a party to such transactions and/or contractual relationships, nor liable in any way in connection therewith.
6.2.1 Customer’s Obligations to Inform end clients: It is the customer’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, end client 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 Customer. 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.
7. Warranty
7.1 TrekkSoft warrants that the Services (excluding any Third Party Application) will be performed with reasonable skill and care for the Subscription Term.
7.2 The warranty provided in clause 7.1 shall not apply to the extent of any non-conformance which is caused by Customer's use of the Services contrary to TrekkSoft's' instructions, or modification or alteration of the Services by any party other than TrekkSoft or TrekkSoft's duly authorized contractors or agents. If the Services do not conform with the warranty provided in clause 7.1, TrekkSoft will, at its expense, use commercially reasonable efforts to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer's sole and exclusive remedy, and TrekkSoft's sole and exclusive liability for any breach of the warranty. Notwithstanding
the foregoing, TrekkSoft:
7.2.1 does not warrant that Customer's use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by Customer through the Services will meet Customer's requirements;
7.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from Customer's access to and use of the Services through third party applications (such as Google) or the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
7.2.3 is not responsible for any Virus which was not detected by TrekkSoft using reasonable current commercial methods of detection;
7.2.4 nor its suppliers, shall have any liability whatsoever for the accuracy, completeness, or timeliness of Customer Data, or for any decision made or action taken by Customer, any Authorized User, or any third party in reliance upon any Customer Data.
7.3 Except as expressly provided for in this clause 7, TrekkSoft (and its Associated Companies and its suppliers) disclaim all other warranties, express, implied or statutory, including warranties, terms and conditions of merchantability, accuracy, correspondence with description, fitness for a particular purpose or use and satisfactory quality, and non-infringement.
7.4 If Customer installs or enables Third-Party Applications for use with Services, Customer acknowledge that TrekkSoft may allow providers of those Third-Party Applications to access Customer Data and Authorised User Data as required for the interoperation of such Third-Party Applications with the Services. TrekkSoft shall not be responsible for any disclosure, modification or deletion of Customer Data and Authorised User Data resulting from any such access by Third-Party Application providers, and any such access and use of Customer Data and Authorised User Data shall be subject to the privacy policies of such Third-Party Application provider. The Services shall allow Customer to restrict such access by restricting Authorized Users from installing or enabling such Third-Party Applications for use with the Services.
7.5 Services may be subject to other limitations as indicated on the Order Form, such as, for example, limits on the used storage, on the used bandwidth and/or on the size of attachments such as photos or files.
8. Customer Data.
8.1 Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, appropriateness, completeness, reliability, integrity, accuracy and quality of the Customer Data and Authorized User Data.
8.2 Solely to enable TrekkSoft to provide the Services to Customer, Customer grants TrekkSoft and its Associated Companies a non-exclusive licence for the Subscription Term and 30 days afterwards to (i) host, copy, transmit and display Customer Data and to incorporate the Customer Data with the TrekkSoft Data and (ii) where necessary, to transfer Customer Data to Third Party Application providers used by TrekkSoft, only as required for the provision of the Services and in accordance with TrekkSoft's Privacy Policy.
8.3 Customer acknowledges that responsibility for all Customer Data and any communications with others or between Authorized Users using the Services is the sole and exclusive responsibility of Customer and that TrekkSoft will not be held responsible in any way for any copyright infringement or violation, or the violation of any other person's rights or the violation of any laws, including but not limited to infringement or misappropriation of copyright, trademark or other property right of any person or entity, arising or relating to Customer Data. Customer agrees to indemnify and hold harmless TrekkSoft from and against all losses, damages, actions or causes of action, suits, claims, demands, penalties and interest arising in connection with or out of any such Customer Data, to the extent not caused by TrekkSoft's willful misconduct.
8.4 TrekkSoft shall follow its safeguarding procedures for Customer Data and Authorized User Data as set out in its Disaster Recovery Policy as such document may be amended by TrekkSoft in its sole discretion from time to time, which shall be made available to Customer upon request. In the event of any loss or damage to Customer Data, Customer's sole and exclusive remedy shall be for TrekkSoft to use commercially reasonable efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by TrekkSoft in accordance with the archiving procedure described in its Disaster Recovery Policy. TrekkSoft shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party, (except those third parties sub-contracted by TrekkSoft to perform services related to Customer Data maintenance and back-up) unless solely caused by TrekkSoft' negligence or willful misconduct.
8.5 Customer acknowledges that TrekkSoft is not obliged to edit, moderate or modify Customer Data (including third party information). However, TrekkSoft reserves the right to remove any Customer Data (or third party information) which TrekkSoft reasonably believes breaches any laws or regulations or any third party's rights or this Agreement and/or is deemed Inappropriate Content. Trekksoft will notify Customer if it removes any Customer Data (or third party information) in accordance with this clause. TrekkSoft disclaims all liability of any kind in respect of Customer Data, third party information and any other material which can be accessed using the Services. TrekkSoft expressly disclaims all liability for any fraud committed in connection with the Services.
9. Data Protection
9.1 TrekkSoft acknowledges that the Customer is acting as a data controller in respect of any Authorized User Data (or Customer Data containing personal data). To the extent that TrekkSoft has access to and processes any such Authorized User Data (or Customer Data containing personal data) in the provision of the Services, TrekkSoft shall use reasonable endeavors to:
9.1.1 keep all personal data of Customer and Customer's Authorized Users secure and have in place appropriate technical and organizational measures to ensure an appropriate level of security for the processing of such personal data of Customer and Customer's Authorized Users and to protect such personal data of Customer and Customer's Authorized Users against unauthorized or unlawful processing or accidental loss, destruction or damage;
9.1.2 preserve the integrity of such personal data of Customer and Customer's Authorized Users and to prevent the loss or corruption of the personal data of Customer and Customer's Authorized Users;
9.1.3 only process such personal data of Customer and Customer's Authorised Users in accordance with the instructions and directions of the Customer and Customer's Authorised Users; and
9.1.4 immediately inform Customer of any security breach, potential security breach, loss, data leak, or unauthorized disclosure with respect to any personal data (collectively, “Data Breach”), investigate the Data Breach, take all necessary steps to close the cause of the Data Breach and prevent recurrence (to the extent such cause is within the control of TrekkSoft); and
9.1.5 provide such reasonable assistance and information to the Customer as it may reasonably require to allow the Customer to comply with its obligations under the General Data Protection Regulation (EU) 2016 / 679.
9.2 For the purposes of this Clause 9 the terms "data controller", "personal data", "process" and "processing" shall have the meaning set out in the General Data Protection Regulation (EU) 2016 / 679.
9.3 TrekkSoft shall comply at all times with all applicable privacy laws.
10. Confidentiality
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.3 Customer acknowledges that details of the Software, Services, TrekkSoft Data and the results of any performance tests of the Services, constitute TrekkSoft's Confidential Information. TrekkSoft acknowledges that the Customer Data is the Confidential Information of Customer.
10.4 Trekksoft has the right to name Customer as a reference for marketing purposes except where Customer explicitly informs TrekkSoft otherwise in writing, provided Customer is acting reasonably.
11. TrekkSoft IP Ownership
Customer acknowledges and agrees that TrekkSoft and/or its licensors own all Intellectual Property Rights in the Software, Services and TrekkSoft Data. Except as expressly stated herein, this Agreement does not grant Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Software, Maintenance Releases, Services or TrekkSoft Data.
12. Indemnity
12.1 TrekkSoft will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of a purchased Service in accordance with this Agreement infringes or misappropriates such third party's intellectual property rights (a " Claim"), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of a Claim, provided Customer (a) gives TrekkSoft written notice of any Claim, (b) give TrekkSoft sole control of the defense and settlement of the Claim (except that TrekkSoft may not settle any Claim unless it unconditionally releases Customer of all liability), and (c) give TrekkSoft all reasonable assistance, at TrekkSoft's expense. If TrekkSoft receives information about a Claim, TrekkSoft may in its discretion and at no cost to Customer (i) modify the Service so that it no longer infringes or misappropriates, without breaching the warranty under Section 7.1 (Warranties), (ii) obtain a license for Customer's continued use of that Service in accordance with this Agreement, or (iii) terminate Customer's subscription for that Service and refund Customer any prepaid Fees covering the remainder of the Subscription Term. The above defense and indemnification obligations do not apply to the extent a Claim arises from:
(a) the Third Party Applications or Customer's use thereof;
(b) a modification of the Services by anyone other than TrekkSoft or its subcontractors;
(c) Customer's use of Services otherwise than in accordance with the Agreement and/or Order Form;
(d) Customer's use of the Services in connection with Third Party Applications or any other third party services or products where such services or products cause the Claim; or
(e) Customer's use of the Services after notice of the alleged or actual Claim from TrekkSoft or the appropriate authority.
12.2 Customer will defend TrekkSoft against any claim, demand, suit or proceeding made or brought against TrekkSoft by a third party alleging that Customer Data, or Customer's use of any Service infringes or misappropriates such third party's intellectual property rights or violates applicable law (a "Claim Against TrekkSoft"), and will indemnify TrekkSoft from any damages, attorney fees and costs finally awarded against TrekkSoft as a result of, or for any amounts paid by TrekkSoft under a court-approved settlement of, a Claim Against TrekkSoft, provided TrekkSoft (a) promptly gives Customer written notice of the Claim Against TrekkSoft, (b) gives Customer sole control of the defence and settlement of the Claim Against TrekkSoft (except that Customer may not settle any Claim Against TrekkSoft unless it unconditionally releases TrekkSoft of all liability), and (c) gives Customer all reasonable assistance, at Customer's expense.
13. Limitation of liability
13.1 The exclusions in this section 13 shall apply to the fullest extent permissible at law but neither party excludes liability for death or personal injury caused by its negligence or that of its officers, employees, contractors or agents; fraud or fraudulent misrepresentation; or any other liability which cannot be excluded by law.
13.2 Except with respect to amounts owed by Customer to TrekkSoft hereunder and save in the event of a claim under clause 10 or clause 12, the aggregate liability of each party for or in respect of any loss or damage suffered by the other party (whether due to breach of contract, tort (including negligence) or otherwise) under or in connection with this Agreement in any Claim Year shall be limited to the total amount of Fees paid by Customer during such Claim Year.
13.3 To the maximum extent permitted by applicable law, in no event will either party be liable to the other for special, consequential, incidental or other indirect damages, or for loss of profits, anticipated savings, business opportunity, goodwill, or loss of revenue, loss of use or loss of data (including corruption of data), or costs of procurement of substitute goods or services arising of this Agreement, howsoever caused and under any theory of liability (including contract, tort, negligence or otherwise) even if the other party has been advised of the possibility of such damages.
13.4 In addition to the other exclusions set out in this clause 13, TrekkSoft has no liability where any failure to provide the Services is caused by:
13.4.1 a network, hardware or software fault in equipment which is not under the control of TrekkSoft;
13.4.2 any act or omission of Customer;
13.4.3 use of the Services contrary to this Agreement; or
13.4.4 any unauthorised access to the Services including a malicious security breach.
13.5 In the event of any loss or damage to Customer Data, Customer's sole and exclusive remedy shall be as set out in clause 8.4.
14. Term and Termination
14.1 This Agreement shall, unless otherwise stated in the Order Form or terminated as provided in clause 12.1 or this clause
14, commence on the Effective Date and shall continue for the Initial Subscription Term. Thereafter, unless stated to the contrary in an Order Form or from a previous contract, this Agreement automatically renews for successive periods as stated in the Order Form or contract (each a "Renewal Period"), unless either party terminates with sixty (60) days written notice prior to the end of the Initial Subscription Term or relevant Renewal Period or otherwise terminates in accordance with the provisions of this Agreement. The Initial Subscription Term together with any subsequent Renewal Periods shall constitute the " Subscription Term". Without a Renewal Period in place, Customer's access and use of the Service shall automatically terminate.
14.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other at any time with immediate effect upon written notice if the other party:
14.2.1 is in material breach of any of its obligations under this Agreement and, in the case of a breach which is capable of remedy, fails to remedy such breach within thirty (30) days following notice of the breach; or
14.2.2 voluntarily files a petition under bankruptcy or insolvency law; shall have a receiver or administrative receiver appointed over it or any of its assets; or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business; or is subject to any analogous event or proceeding in any applicable jurisdiction.
14.3 On termination of this Agreement for any reason:
14.3.1 all right of use granted under this Agreement shall immediately terminate;
14.3.2 Customer shall cease the use of the Services;
14.3.3 Customer shall promptly pay all monies due under this Agreement;
14.3.4 each party shall return and make no further use of any equipment, property, Software and Services and other items (and all copies of them) belonging to the other party;
14.3.5 TrekkSoft may destroy or otherwise dispose of any of Customer Data in its possession unless TrekkSoft receives, no later than thirty (30) days after the effective date of the termination of this Agreement, a written request for the delivery to Customer of the then most recent back-up of the Customer Data. TrekkSoft shall deliver the back-up to Customer following its receipt of such a written request. After such 30 day period, TrekkSoft shall have no obligation to maintain or provide Customer Data, and shall thereafter delete and destroy all copies of Customer Data in TrekkSoft's control, unless prohibited by law.
15. General
15.1 Entire Agreement. This Agreement together with any Order Form sets out the entire agreement and understanding between the parties and supersedes any previous agreement between the parties relating to its subject matter. Unless otherwise expressly agreed in writing this Agreement applies in place of and prevails over any terms or conditions contained in or referred to in any correspondence or elsewhere or implied by trade custom or course of dealing. Any general terms of business or other terms and conditions of any order or other document issued by Customer in connection with this Agreement shall not be binding on TrekkSoft. In entering into this Agreement each party acknowledges and agrees that it has not relied on any representations made by the other except as set forth in this Agreement. Any such representations are excluded. Nothing in this clause shall limit liability for any representations made fraudulently.
15.2 Waiver. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
15.3 Invalid provisions. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
15.4 Governing Law and Jurisdiction. All disputes arising out of or in connection with this Agreement shall be governed by substantive Swiss law excluding the conflict of law rules and the Laws in treaties including but not limited to the Uniform Law on Purchases (Vienna treaty). The Commercial Court of the Canton of Bern shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement.
15.5 Third Party Rights. A person who is not a party to this Agreement has no rights to enforce, or to enjoy the benefit of, any term of this Agreement.
15.6 Sub-contracting and Assignment. Neither TrekkSoft nor Customer may assign or otherwise transfer this Agreement or any of its rights or obligations or purport to do any such acts under it to any third party without prior written consent from the other party, such consent not to be unreasonably withheld. Notwithstanding anything to the contrary, TrekkSoft shall have the right, upon written notice to Customer, to assign this Agreement to any of its Associated Companies, or to an entity resulting from a merger, acquisition or other business reorganization of TrekkSoft. In addition, TrekkSoft shall have the right to sub-contract any of its obligations hereunder to a third party, provided that TrekkSoft shall continue to remain responsible for the performance of the Services hereunder. Any attempted assignment, sub-contracting or other transfer in violation of this provision shall be null and void.
15.7 No partnership or agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
15.8 Force Majeure. TrekkSoft shall have no liability to Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of TrekkSoft or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, fire, flood or storm. TrekkSoft shall provide Customer with notice of such an event and its expected duration.
15.9 Notices. All notices to be given under this Agreement shall be given in English in writing to the address as shall be given by either Party to the other in writing. Any notice involving non-performance, termination, or renewal shall be hand-delivered or sent by recognized overnight courier or by certified mail, return receipt requested. Notices given by TrekkSoft regarding price changes, discount category changes, product discontinuance, product changes, and logistics centre changes may in addition be sent by e-mail to the person(s) specified by Customer from time to time. All other notices not referred to elsewhere in this clause 15.9 may be sent by (i) post or (ii) e-mail. All notices shall be deemed to have been given and received on the earlier of actual receipt or three (3) days from the date of postmark or date and time an email is sent.
15.10 Variations. Save as otherwise expressly stated in this Agreement, this Agreement may only be modified or varied in writing executed by duly authorized representatives of both parties.
15.11 Survival. In addition to those provisions which by their nature are intended to survive any termination of this Agreement, clauses 9, 10, 11, 12, 13, 14.3 and 15, of this Agreement shall survive such termination or expiration of this Agreement.
15.12 Export Control. The Service, Software and other TrekkSoft materials are subject to the export control laws of various countries, including without limitation the laws of the United States, Switzerland and the UK. Customer agrees that it will not submit the Service or other TrekkSoft materials to any government agency for licensing consideration or other regulatory approval without the prior written consent of TrekkSoft, and will not export the Service, Software, TrekkSoft Data and TrekkSoft materials to countries, persons or entities prohibited by such laws. Customer shall also be responsible for complying with all applicable governmental regulations of the country where Customer is registered, and any foreign countries with respect to the use of the Service or other TrekkSoft materials by Customer and its Authorized Users. Customer will not engage in any activity that would cause TrekkSoft to be in violation of any such export control laws and regulations.
16 . TrekkSoft Booking Fee
16.1 Fees. In consideration for using the Service, you agree to pay the total amount included with the Booking, including any related charges, fees, deposits and taxes.
The fees and other charges related to the Merchants ("Provider") products or services (the “Service Fee”) are set by the Merchant ("Provider") .
You acknowledge that TrekkSoft charges an additional fee to Guests for its booking services, based on a percentage of the total Service Fee (the “Booking Fee”). When applicable, taxes may also be charged.
The Service Fee, Booking Fee, other charges and applicable taxes are all included in the “Total Fees.”
16.2 Charges. TrekkSoft will charge the full amount of the Total Fees to Guest’s method of payment at the time that the Booking is submitted by the Guest. Please note that Provider, not TrekkSoft, determines the Service Fee and is solely responsable for honoring any confirmed Bookings reserved through our Service. Further, you acknowledge and agree that TrekkSoft or the Third Party Payment processor is not responsible for any fees or charges from Guest’s financial institution associated with this transaction.
16.3 Pre-authorization; Method of Payment. At the time that you make a Booking, you authorize TrekkSoft, or a payment processor on its behalf, to (a) obtain a pre-authorization via your payment method for the Total Fees or (b) charge your payment method a nominal amount. You authorize TrekkSoft, directly or indirectly via a third-party payment processor, to process your payment with the method of payment you select in the Booking and to collect the full amount of the Totals Fees for each confirmed Booking.
16.4 Security Deposits; Damages. Certain Providers may require security deposits be paid. Each Provider will describe the amount of the security deposits and other relevant information. The return of any security deposit may also be subject to additional terms and conditions available from the Provider. You authorize TrekkSoft, directly or indirectly via a third-party payment processor, to obtain a pre-authorization at the time the Booking is made and process the full amount of the security deposit for a confirmed Booking against your selected method of payment. You acknowledge that TrekkSoft will not pay interest on your security deposit and will only release it when indicated by the Provider. TrekkSoft is not responsible for administering or accepting any claims related to the security deposit. All disputes related to the security deposit must be directed to the Provider. You also authorize TrekkSoft, directly or indirectly via a third-party payment processor, to charge your method of payment to pay for any damages.
16.5 Cancellations. The Provider’s cancellation policy will apply to any cancellation. Your ability to receive a refund for the Total Fees and other amounts charged to you will depend upon the terms of the Provider’s cancellation policy and, in some cases, no refund may be issued. Except as provided herein, the Booking Fee is non-refundable. Details regarding refunds and cancellation policies of the Provider are available in the listing or from the Provider. If a Provider cancels a confirmed Booking made via the Service, it is at the Provider’s discretion and the Provider’s responsibility to issue a refund of the Total Fees for such Booking to the applicable Guest within a commercially reasonable time of the cancellation.
16.6 Third-Party Payment Processor. TrekkSoft uses a third- party payment processor to process your payments for the Services. By buying or selling on TrekkSoft you authorize TrekkSoft to disclose your information and payment instructions to the payment processor and agree to be bound by the current version of processor’s privacy policy and terms of service.
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