Terms & Conditions (B2B)
This Tour Operating Agreement (“Agreement”), dated as of [Vendor Agreement date] (“Effective Date”), is between Trip Ways LLC (“TripWays”) a United States registered company based in ” 444 S Boundary street, 97239 Portland, OR, United States of America” and [Vendor] (“Vendor”) based in “[Address]“. When used in this Agreement, “TripWays” means, collectively, Trip Ways LLC, a U.S. based limited liability company and any entity that is controlled by Trip Ways LLC. Both TripWays and Vendor may be referred to separately as (“Party”) or collectively as the (“Parties”).
RECITALS
WHEREAS TripWays owns and operates the online website www.tripways.com and related advertising and sales channels (“Website ”) where customers can browse, compare, and book travel-related services and tour packages; and
WHEREAS Vendor is in the business of providing tours and travel-related services and applied to promote, and sell their travel services on TripWays; as its non-exclusive commercial agent, acting with the name and on behalf of the vendor; and
The Parties desire to enter into this Agreement because they have a harmonious and prosperous business relationship, and hope to continue that relationship by formalizing its terms. The Parties hereby agree as follows:
AGREEMENT
1. AGENT
As the main subject of this agreement, TripWays is appointed as the Vendor’s non-exclusive commercial agent. As such, TripWays is responsible to make access to the Website available to the Vendor in accordance with Exhibit 1 (Below this page) and collect customer payments and details relating to Booking of Tours through the Website in the name and on behalf of the Vendor.
2. VENDOR’S OBLIGATIONS
2.1. The Vendor undertakes to render the Tour services offered and sold to customers through the Website in accordance with the provided Tour Information listed on each tour page, and the terms of this Agreement.
2.2. Vendor is solely liable to ensure compliance with its terms and conditions including payment, cancellation, and refund policies with applicable (travel) laws.
2.3. Vendor is solely responsible for the validity and accuracy of all Tour Information displayed on the Website and honoring its obligations towards the Customer arising out of Bookings made through the Website.
2.4. Vendor shall not redirect booking inquiries with Customers from the Website to separate communication channels. Bookings resulting from a violation of this Section will be treated as Bookings made through the Website and thus entitle TripWays to the full Commission Fee stipulated herein, as well as a penalty fee of USD 50 (or equivalent in foreign currency) in each individual case.
2.5. Vendor shall provide TripWays with evidence of insurance, company registration, and the state identification of any employees or executives, upon TripWays’ written request to Vendor.
2.6. The Vendor must have any and all rights and licenses necessary to offer the Vendor’s services on the Website and render such services to the Customers according to the laws applicable in the Vendor’s country of registration.
2.7. The Vendor must have valid liability insurance covering any injury to persons, property, or finances that may be incurred by the Customer during or in connection with a Tour.
2.8. The Vendor is solely responsible for all Vendor Generated Content and shall only upload or otherwise make available content where the Vendor has all rights, licenses, consents, and releases necessary for the purposes contemplated in this Agreement.
2.9. Nothing in this Agreement shall be construed to limit the Vendor’s responsibilities as contemplated in this Agreement and TripWays assumes no responsibility in this regard.
2.10. Vendor shall at all times adhere to the Vendor Standards and Guidelines (Exhibit 1).
3. TRIPWAYS’ OBLIGATIONS
3.1. TripWays shall be entitled to decide how to manage the Website listings and provide tours and travel services to the customers. When a Booking is made, TripWays will generate an invoice and a notification to the Vendor. Consequently, the Vendor shall accept the invoice and act in accordance with the terms of this Agreement.
3.2. TripWays has an obligation to pay the Vendor the Payout, which is described in Section 4.
3.3. TripWays has an obligation to refund Customers for trips that are canceled within the window of time that the Vendor allows refunds.
3.4. For the avoidance of doubt, TripWays is neither a Vendor nor a provider of travel services, nor a representative or proxy of the Website, nor a Customer, nor an insurer. TripWays does not own, sell, resell, furnish, provide, manage, or control any transportation, tour, or travel service and does not act as an agent to the Customers. TripWays renders its services exclusively as an agent in the name and on behalf of the Vendor. TripWays has no control over the conduct of Vendors, Customers, and other users of TripWays Services. Bookings are made at the Customer’s and Vendor’s own risk.
4. PAYMENT AND PAYOUT TERMS
4.1. TripWays will collect the Gross Booking Price from the Customer not later than the date of Final Payment as specified by Vendor in its payment terms and conditions or, if not specified or modified in a writing by the Vendor, thirty (30) days before departure of the Tour.
4.2. TripWays works with the Vendor on the ‘Statement’. After deducting the Commission Fee, TripWays will pay the Vendor the Net Tour Price in accordance with the timelines of the payment method opted for by the Vendor as outlined herein.
4.3. Each Tour Booking payment will be collected by TripWays in its US bank account in USD. When a Tour Booking is confirmed to the Customer, TripWays will email the Vendor an electronic booking document (as PDF file) that contains a booking statement including the Gross Tour Price and the payment due date with the amount payable to the Vendor (“Net Tour Price”).
4.4. The booking document serves as a basis for settlements between TripWays and the Vendor. The vendor shall send any claims or disputes on the content of the booking document to TripWays within seven (7) days of receipt of the booking document.
4.5. TripWays is obliged to pay the total Net Tour Price due to the Vendor (the “Payout”) by one of the following means, depending on the choice of the Vendor:
4.5.1. Wire (bank) transfer to the Vendor’s designated Bank Account: If the Vendor opts for payment via bank transfer, Payout to Vendor will generally become due and payable by the 5th business day of the next calendar month after the Tour’s departure date to the bank account details indicated by Vendor to TripWays. Unless otherwise negotiated in a writing between TripWays and Vendor, the Vendor shall be financially responsible for all bank wire transfer charges. In addition, at Vendor’s option, which must be communicated in writing, TripWays will wait to transfer the Payout to the Vendor until the Payout exceeds One Hundred ($100) USD in order to avoid paying wire transfer fees on smaller Payouts. Such writings are intended to be integrated into this Agreement.
4.5.2. Payoneer, Wise, Paypal (And other third party payments): If the Vendor opts for and is eligible to receive Payout via other mutually agreed third party payment services, TripWays will initiate the payout to the Vendor by the 5th business day of the next calendar month after the Tour’s departure date to the vendor account, indicated by Vendor to TripWays. TripWays does not charge any fees for this service, however, any merchant fee levied by PayPal (or another third-party merchant processor) will be the responsibility of the Vendor.
4.5.3. Stripe: Effective 26 July 2021, TripWays is no longer uses Stripe to process the payments and connect to other Stripe accounts. If your payout method is set on Stripe Connect, you should consider changing it for your future payouts.
5. COMMISSION FEE
5.1. The Vendor agrees to pay to TripWays a commission fee for Tours and other services sold through the Website, which is paid at Booking and will be deducted from the Customer’s payments.
- Commission Fee on Gross Booking Price: [commission]
- Commission Fee on cancellation: [cancellation-commission] of Vendor’s cancellation fee
5.2. Local payments or food funds (e.g. payments that are made in cash directly to the local supplier at the start of a tour) shall be excluded from the Commission Fee.
6. CANCELLATIONS
6.1. In case of a cancellation of a Booking by a Customer, and in case such cancellation is not free for the Customer, TripWays shall be entitled to the same commission Fee from Vendor’s cancellation fee, as stipulated in Section 5.1 above. If the Vendor cancels the booking without any fee, TripWays get zero commission as well and make the full refund. If the Vendor charges any amount (based on their initial terms and agreement with the customer), TripWays will be entitled to a [cancellation-commission] commission on the cancellation fee.
6.2. In the event of cancellations prior to Payout: TripWays shall be liable to refund to Vendor the Vendor’s cancellation fee, minus the applicable Commission Fee.
6.3. In the event of cancellations, TripWays shall refund the Customer with the amount already paid minus the Vendor’s Cancellation fee and TripWays’ Commission Fee.
7. LIMITATION OF LIABILITY / FORCE MAJEURE
7.1. TripWays shall in no case be liable to Vendor for indirect damages, loss of profit, loss of interest, lost savings, consequential and pecuniary damages, or damages resulting from third party claims.
7.2. Vendor is liable for any damages incurred by TripWays resulting from any Vendor Generated Content on the Website. In the event that infringement claims are brought against TripWays by third parties in relation to the use of Vendor Generated Content on the Website, TripWays in its sole discretion may either forward such complaints on to Vendor and hold TripWays harmless or settle such claims on behalf of the Vendor (up to an amount of USD 2,000 or equivalent) and deduct any costs incurred from the Vendor’s Payout. TripWays may take any legal action against the Vendor for breaching this Agreement or for claims brought by third parties that arise from VGC on the Platform.
7.3. Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement resulting from Force Majeure, including but not limited to, natural disasters, hurricanes, floods, earthquakes, weather disturbances, war, terrorism or threats of terrorism, civil disorder, protests, riots, political unrest, labor strikes or disruptions, fire, disease or medical epidemics or outbreaks, and curtailment of transportation facilities. If such circumstances continue for a continuous period of more than one month, either Party may terminate this Agreement by written notice to the other Party.
7.4. TripWays makes no warranty or representation and disclaims all implied warranties, obligations, and liabilities arising by law or otherwise, regarding the Website and/or any revenue or profit payable to Vendor from bookings through TripWays. VENDOR RELEASES TRIPWAYS FROM ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF TRIPWAYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The vendor will hold harmless, indemnify and defend TripWays, and its respective employees, directors, officers, and agents (the “Indemnified Parties”) against any and all actions, claims, suits, demands, judgments, losses, costs, expenses, and/or damages, including attorneys’ fees, arising out of or resulting from (a) any tour or service (b) use of the intellectual property described in this Agreement, (c) a breach by Vendor of this Agreement or any representation or warranty, or (d) the provision of inaccurate information to TripWays by Vendor. This section will survive the termination or expiration of this Agreement.
8. TERM AND TERMINATION
8.1. The Agreement enters into force on the Effective Date for an initial term of twelve (12) months and shall automatically renew for twelve (12) month periods unless terminated by either Party in accordance with this Section 8.
8.2. Each Party shall be entitled to terminate this Agreement by written notice with a termination period of one month, effective to the end of a month, without giving reasons therefore.
8.3. Each Party shall further have the right to terminate this Agreement with immediate effect for good cause in case the other Party commits a material breach of the terms of this Agreement and (where such breach is capable of remedy) fails to remedy the breach within seven (7) days starting on the day after receipt of notice from the non-breaching party giving details of the breach and requiring the breach to be remedied.
8.4. In case of a termination, TripWays shall be entitled to keep the ownership of all the tour web pages, data, reviews, and added values like SEO to the Website, and use them to promote similar content. This will NOT include photos, videos, and copyrighted assets that belong to the Vendor.
8.5. Any rights or obligations of either Party with respect to Bookings made through the Website before the termination date will continue until discharge.
9. PRICE AND AVAILABILITY CHANGES
9.1. Vendor will communicate all supply limitations to TripWays in writing. It is the Vendor’s sole responsibility to inform TripWays when Vendor’s tours and services will no longer be available for booking through the Website at least 48 hours prior to the end date.
9.2. Vendor may change its pricing for tours and services by doing so through the Website or communicating the change in price to TripWays in writing. However, TripWays may in its sole discretion discontinue booking such tours. The pricing for the Vendor’s tours and services will remain in effect until the Vendor updates its rates.
9.3. Vendor acknowledges that TripWays has no knowledge of (i) Customers’ actual use of Vendor’s tours and services, (ii) any cancellation notice that may be given by Customers to Vendor, or whether any such cancellation notice complies with Vendor’s policies or the terms of this Agreement to relieve Customers (and TripWays) of the charges due, or (iii) any price adjustment negotiated between Vendor and Customers. Accordingly, TripWays may rely upon, the pricing information provided by Vendor as may be updated per this Section.
10. TAX.
10.1. Vendor agrees to include all sales, VAT, use, excise, lodging, rental, or other similar taxes or governmental fees (“Taxes”) imposed by any state or local taxing jurisdiction in the Gross Booking Price. The vendor agrees to remit any and all such Taxes paid by Vendor, TripWays, or any Customer to the appropriate taxing authorities as required by law. The vendor will inform TripWays of any changes in the Taxes and/or tax rates applicable to tours and services.
11. FINAL PROVISIONS
11.1. This Agreement shall enter into force on the Effective Date and supersede and replace all previous agreements between Vendor and TripWays, whether oral or in writing. Any changes to this Agreement must be made by the Parties in writing.
11.2. This Agreement shall be subject to and governed by the laws of the state of Oregon, United States. Any dispute, controversy, or claim arising out of or in connection with or relating to this Agreement or any breach or alleged breach hereof, will, upon the request of any party involved, be submitted to, and settled by, arbitration in Portland, Oregon, pursuant to the American Arbitration Association (AAA) rules of arbitration. Any award rendered shall be final and conclusive upon the parties and a judgment thereon may be entered in the highest court of the forum, state or federal, having jurisdiction. In the event that neither party requests arbitration, each customer hereby consents to the exclusive jurisdiction of Multnomah County, Oregon, Circuit Court in any action on a claim arising hereunder.
11.3. In the event of any suit or action to enforce or interpret any provision of the Agreement between the parties, the prevailing party is entitled to recover, in addition to other costs, reasonable attorney fees in connection with the suit, action, or arbitration, and in any appeals. The determination of who is a prevailing party and the amount of reasonable attorney fees to be paid to the prevailing party shall be decided by the arbitrator or court.
11.4. Exhibit 1 (Vendor Standards and Guidelines) forms an integral part of the Agreement. In case of any inconsistency or discrepancy between the terms of the Exhibits and the terms of the Agreement, the terms of the Agreement shall prevail.
11.5. If any provision of this Agreement is held to be illegal or invalid by a court of competent jurisdiction, such provision shall be modified to the extent necessary to make it valid and enforceable; and neither such provision, nor its modification or deletion, shall affect the validity of the remaining provisions.
11.6. All information, agreements, and materials in relation to this Agreement are confidential and are not to be disclosed to any third party without the prior written consent of the other Party. No information disclosed in this Agreement is to be assumed to be of general knowledge in any market place. Terms of this Agreement may only be disclosed to the professional advisers of the Parties or where disclosure is required by law. The termination of this Agreement does not release either Party from the confidentiality terms in relation to all information, agreements, and materials documented in this Agreement.
11.7. The Parties shall direct all correspondence relating to the Agreement to the contact details indicated on the first page of this Agreement.
11.8. EACH PARTY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW TRIAL BY JURY OF ALL CLAIMS RELATING TO THIS AGREEMENT.
11.9. If any part of this Agreement is found to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement will nevertheless be binding with the same effect as though the void parts were deleted.
11.10. TripWays’ failure or delay in enforcing any provision of this Agreement at any time does not waive its right to enforce the same or any other provision(s) hereof in the future.
11.11. The provisions of this Agreement are intended to bind the parties as to each other and are not intended and do not create rights in any other person or confer upon any other person any benefits, rights, or remedies. No person is or is intended to be a third-party beneficiary of any of the provisions of this Agreement.
11.12. Applying as a Vendor on TripWays and having access to the Vendor dashboard on the Website shall be deemed consent to this Agreement.
Exhibit 1
Vendor Standards and Guidelines (Rev. 1.2 – Updated on 1 December 2020)
For ease of reference, the current version is attached as follows and may be updated by TripWays in its sole discretion from time to time. The Vendor Standards and Guidelines are deemed to be accepted by the Vendor with the confirmation of every Booking.
In the interest of both TripWays and Vendor and to ensure that the highest possible standard of customer service is provided on www.TripWays.com, the Vendor agrees to use its best efforts to adhere to the following Vendor Standards and Guidelines.
1. Tour Information
1.1. The Vendor shall provide accurate and up to date Tour Information to TripWays by one of the technical means implemented by TripWays on the Website specifically for this purpose from time to time, currently the Dashboard or the Feed.
1.2. If Vendor uses a Feed to provide Tour Information, TripWays shall pull automatic daily updates from the Feed to ensure the information presented on the Website is up-to-date. TripWays may add additional Feed providers.
1.3. TripWays will display the Tour Information as made available by the Vendor on the Customer facing frontend of the website.
2. Response to Customer Inquiries
2.1. The Vendor will closely cooperate with TripWays regarding the handling of any Customer complaints on the Website relating to any Tours and other services offered by the Vendor in a professional and supportive manner.
2.2. The Vendor shall be available to TripWays’ Customer Support Team within a maximum of 1 (one) business day, either by telephone or email to enable status updates on pending Booking requests.
2.3. The Vendor acknowledges and agrees that failure to respond to Customer inquiries and Booking requests within a maximum of 48 hours will result in an automated cancellation of such Bookings and the Customer’s payment/s, if any, will be refunded.
2.4. The Vendor is obliged to provide TripWays with a list of any promotions, coupons, and offers that are being marketed by the Vendor with a minimum of two weeks’ prior notice.
2.5. The Vendor is required to use the Website exclusively to communicate with Customers who book through the Website.
3. Bookings
3.1. Unless the Vendor chooses to automatically confirm all bookings, The Vendor must bindingly confirm Booking requests, before TripWays will confirm Booking requests and collect Customer payments in the name and on behalf of the Vendor.
3.2. Any documents relating to the travel agreement between Vendor and Customer (travel agreement, vouchers, confirmations, folders, etc.) shall be provided to the Customer by Vendor exclusively via E-Mail or the TripWays Website and only after full payment has been made by the Customer.
4. Cancellations and Customer Complaints
TripWays shall without undue delay inform the Vendor about cancellations, amendments, Bookings, and/or complaints received by Customers in relation to services offered by the Vendor on the Website.
5. Vendor Generated Content
5.1. TripWays may, in its sole discretion, permit Vendor to post, upload, publish, submit, transmit, or make otherwise available Vendor Generated Content (“VGC”). Accordingly, the Vendor agrees that:
5.1.1. TripWays may use the VGC on its Website, online/offline promotional materials, and other publications. Vendor hereby grants to TripWays a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit the VGC on, through, or by means of the Website. TripWays does not claim any ownership rights in the VGC and nothing in this Agreement will be deemed to restrict any rights that the Vendor may have to use and exploit the VGC.
5.1.2. The Vendor may not provide any Vendor Generated Content, that is threatening, coercing, defamatory, offensive, nudging and/or pornographic of any kind or of a similar nature; or is racist, race-baiting, anti-constitutional and/or prosecutable; or violates applicable laws; or infringes rights of third parties, e.g. copyrights and trademark law.
5.1.3. TripWays shall not be obliged to control VGC. In the event, TripWays becomes aware that VGC (or parts thereof) violates any third party’s rights or otherwise is considered to be offensive, illegal, or inappropriate, TripWays reserves the right to remove VGC at any time without further notice from the Website.
5.1.4. Vendor acknowledges and agrees that Vendor is solely responsible for all VGC and accordingly, Vendor represents and warrants that: Vendor is either the sole and exclusive owner of all rights in and to the VGC or Vendor has all rights, licenses, consents, and releases that are necessary to grant to TripWays the rights as contemplated under this Agreement; and neither the VGC nor making available VGC to the Website, nor TripWays’ use of the VGC (or any portion thereof) in accordance with the terms set out herein will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation or breach any agreements Vendor has entered into with any third parties.
5.1.5. Vendor warrants that the VGC shall not contain any viruses, Trojans, or infected files. The vendor must not make available illegal content on the Website and TripWays does not assume any responsibilities in this regard.
5.1.6. Vendor represents and warrants that VGC is in compliance with all applicable laws, tax requirements, and rules and regulations that may apply to any service rendered by Vendor, including, but not limited to, tourism, tour guide licensing laws, and other laws governing events and tours of public spaces and other venues. TripWays assumes no responsibility for the Vendor’s compliance with any applicable laws, rules, and regulations.
5.1.7. Vendor agrees to defend, indemnify, and fully reimburse TripWays for any and all costs, expenses, and attorney fees, that TripWays is forced to pay because Vendor’s VGC violates any of the provisions of this Section 5, including but not limited to a third party’s intellectual property rights.
6. Marketing
6.1. TripWays shall be entitled to use the Vendor’s name and Tours for online marketing campaigns run on the Website, Email marketing, and/or pay-per-click (PPC) advertising at its own costs and discretion.
6.2. Vendor agrees to not offer any lower prices for Vendor’s tours on another website compared to what they offer for the same tours on the Website. TripWays reserves the right to cancel the Agreement if it discovers that the Vendor is advertising its tours elsewhere at lower prices than the ones advertised on the Website.
6.3. The Vendor is encouraged to provide discounts, coupons, or giveaway prizes for campaigns put together by TripWays. Such marketing activities will be agreed upon by both Parties before the campaign and the Vendor will be credited as a sponsor on the promotional materials related to the campaign.
6.4. TripWays may run sales promotions by offering exclusive online savings for customers booking Tours through the Website. Any such sales promotions will not have an effect on the Net Tour Price.
