Welcome to TripWorks!
This TripWorks Services Agreement includes this introduction, the General Terms, Definitions, Services Terms, and incorporated documents and terms (“Agreement”) and forms a legal agreement between TripWorks, LLC.(“TripWorks”) and the entity or sole proprietor on whose behalf a TripWorks account is created (“Merchant”, “you” and “your”) to receive certain payment processing, data, technology and analytics, or other business services offered by TripWorks and its Affiliates. This Agreement states the terms and conditions that apply to your use of the Services.This Agreement is effective upon the date you first access or use the Services(“Effective Date”) and continues until you or TripWorks terminates it (the“Term”).You and TripWorks agree as follows:Definitions
"Booking Fee" has the meaning set forth in Section 6(a)."Chargeback" means a request to invalidate a payment that a Customer files directly with a debit or credit card company, issuing bank; or any other entity that provides payment services.“Customer” means a purchaser of Merchant Services through the TripWorks Platform.“License Period” means the period specified in the applicable Order during which Merchant will be authorized to access the TripWorks Platform.“Merchant Account” has the meaning set forth in Section 2(a).“Merchant Services” means any and all goods and services offered for sale by Merchant through the TripWorks Platform.“Fee Agreement” means the order entered into by TripWorks and Merchant which references this Agreement and specifies the TripWorks Services provided by TripWorks to Merchant under this Agreement, generally referred to as a Fee Agreement.“TripWorks Services” means any and all services provided byTripWorks to Merchant, including a license to the TripWorks Platform and any other services set forth in the applicable Order.“TripWorks Platform” means the TripWorks business management platform for tour businesses, including but not limited to, the website currently located at https://customer.tripworks.com/(where “customer” refers to an individual Merchant), and any other, information, services, data, software, or any other content made available on the TripWorks Platform by TripWorks for use by Merchant.“User(s)” means one or more of any person or entity that is authorized by Merchant to access the Merchant’s Account.Merchant Account & Merchant's Responsibilities
This Agreement permits Merchant to sell Merchant Services using the TripWorks Platform in exchange for a BookingFee (defined below) paid to TripWorks during the License Period.  Merchant is solely responsible for the contents and information of its Merchant Account, including with respect to any Merchant Services and any activities conducted by Merchant or its Users using the Merchant Account. Merchant is solely responsible for any and all Users accessing its Merchant Account, and the confidentiality of all information related to the Merchant Account. TripWorks shall have the right to disable anyMerchant Account, suspend any User credentials and/or modify any features or functionalities available to Merchant on its Merchant Account for any activityTripWorks reasonably deems inappropriate, unlawful or in violation of this Agreement.Merchant’s Responsibilities. Merchant shall (i) provide TripWorks with up-to-date information regarding any Merchant Services and maintain the accuracy of such information on the TripWorks Platform; (ii) accept all orders bookings placed by Customers for Merchant Services; (iii) confirm all Customer bookings placed through the TripWorks Platform; (iv) promptly notify TripWorks of any changes to pricing, availability, description, or other characteristics of Merchant Services or relevant to Customers as related to the TripWorksPlatform; (v) on an ongoing basis, review and confirm the transactions, fees and charges processed through the TripWorksPlatform, and promptly fix any inaccuracies.License & Services
Subject to the terms of this Agreement, TripWorks grants to Merchant a limited, non-exclusive, non-transferable license to use the TripWorks Platform for Merchant’s provision of the Merchant Services to Customers during the License PeriodTripWorks or a third-party provider may provide Merchant with other TripWorks Services. Such TripWorks Services may include without limitation, assistance with the development of websites and other related services. Any fees payable to TripWorks for TripWorks Services shall be set forth in the applicable Order. Merchant acknowledges and understands that the use of any third-party service providers shall be subject to separate terms and conditions as set forth on anOrder or as otherwise provided to Merchant.  Restrictions
TheTripWorks Platform contains valuable trade secrets, proprietary information andIntellectual Property (as defined below) which have been developed at significant expense over time.  Merchant shall not itself or through any affiliate, agent or other third party: (1) obscure, alter, or remove copyright, trademark, service mark or other rights-management information or controls or legend contained on or in the TripWorks Platform; (2) reverse engineer any patent or invention on or in the TripWorks Platform; (3) except as expressly permitted herein, use, register, or apply to register any Trademark of TripWorks, or anyTrademark likely to cause consumer confusion with any TripWorks Trademark, anywhere in the world; (4) use, register, reserve, or apply to register any corporate name, d/b/a or assumed name, copyright, social media account, professional or industry website account, or domain name of TripWorks, or anything substantially similar thereto; (5) except as explicitly provided herein, sell, lease, license, sublicense or otherwise encumber any portion of the TripWorks Platform; (6) except as explicitly provided herein, reverse engineer, decompile, disassemble, alter or create any derivative work of the software code or data in or relating to the TripWorksPlatform (whether in source code, object code or other form) in any way or for any purpose. Merchant Services
Merchant agrees that Merchant is solely responsible for any and all Merchant Services, including but not limited to rentals, services, and experiences purchased by Customers through theTripWorks Platform. TripWorks shall not be responsible for providing any support or services directly to Customers, including any Merchant Services. Merchant may add, remove, or modify any Merchant Services available at any time, subject to approval by TripWorks in each instance and the requirements set forth in this Agreement.Booking Fees
TripWorks shall collect and retain a booking fee (“booking fee”) on any Merchant Services purchased by a Customer through the TripWorks Platform. Merchant authorizes TripWorks to act as an agent on Merchant’s behalf, and hereby authorizes TripWorks to collect payments from all Customers who purchase Merchant Services. The specific “Booking Fees” applicable to Merchant’s Customers shall be defined in a separate Fee Agreement, and may include, without limitation an amount equal to a percentage of the Gross Revenue collected by Merchant for each Customer, fixed fees, monthly fees, and/or credit card processing fees. “Gross Revenue,” as used herein, means all amounts collected from sales of Merchant Services purchased by Customers on the TripWorks Platform during the License Period.If the Merchant collects partial payments on Merchant Services, the total Booking Fee will be collected at the time the partial payment is collected; unless specified otherwise in writing. In the event Merchant assumes responsibility for any Booking Fee(s) as specified in the referenced Fee Agreement, Merchant shall be solely responsible for the provision of the Booking Fee to TripWorks in accordance with the payment terms set forth in the applicable Order.Any modifications made to the structure or amount of the Booking Fees shall only apply to Merchant Services introduced by Merchant after the effective date of the changes.Payment Processing & Chargebacks
Payment processing services on the TripWorks Platform are provided by Stripe, Inc. and its affiliates (collectively “Stripe”) and are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to this Agreement, Merchant agrees to be bound by the Stripe Connected Account Agreement and the https://stripe.com/legal, as the same may be modified by Stripe from time to time, and without prior notice. TripWorks is not affiliated with Stripe and makes no representations or warranties regarding any policies of Stripe. As a condition of TripWorks enabling payment processing services through Stripe, Merchant agrees to provide TripWorks accurate and complete information about Merchant and its business, and Merchant authorizes TripWorks to share it and other information related to Merchant’s use of the TripWorks Platform and Stripe’s payment processing services.If TripWorks determines that a Merchant is incurring an excessive number of Chargebacks, or willfully withholding transaction information, TripWorks at its sole discretion, may implement controls to govern the Merchant Account. These controls include, and are not limited to: (a) Amending Booking fees and other processing fees, (b) delaying payouts, (c) suspending TripWorks Services, or (d) terminating TripWorks Services.Term & Termination
The “Term” of this Agreement begins on the date you first access or use the TripWorks Platform, and shall continue until terminated. Either party may terminate this Agreement in the event of a breach of this Agreement by the other party, including, without limitation, by TripWorks for any breach or violation by Merchant of any provision of this Agreement; provided that neither party shall be deemed to be in breach hereunder unless notice of breach shall have been given and the notified party shall fail to remedy such alleged breach within thirty (30) days (or within a reasonable time thereafter provided the breaching party commences cure within the aforesaid period) after receiving such notice.Either party may terminate this Agreement in the event that the other party terminates or materially changes its business activities, becomes insolvent, admits in writing to inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority. Merchant may terminate the Agreement upon sixty (60) days’ prior written notice to TripWorks.  Termination shall become effective immediately upon receipt of written notice of termination by the non-terminating party. Upon the termination of thisAgreement, (i) the rights granted herein shall immediately cease and Merchant shall not have the right to access, or use the TripWorks Platform, and (ii) in the event that, and for as long as, Merchant receives Gross Revenue applicable to Merchant Services sold by Merchant using the TripWorks Platform during theTerm, TripWorks shall continue to receive Booking Fees and any other fees specified in the applicable Order up to the effective date of Termination.Intellectual Property
All Intellectual Property belonging to each party shall remain the property of each such party. Except as otherwise expressly set forth herein, nothing herein shall constitute a license, grant, transfer or other disposition of Intellectual Property. “Intellectual Property,” as used in this Agreement, means (i) any invention, patent, patent applications or registrations; (ii) all works of authorship, whether copyrightable or not, software, databases and compilations and all registered and unregistered copyrights; (iii) all unpatented inventions, discoveries and methodologies, algorithms, formulae, know-how and trade secrets; (iv) trademarks, service marks, trade dress, trade names, logos, indicia of origin, phrases, taglines, hashtags, or designs (collectively, “Trademarks”); and (v) domain names, URLs, social media accounts, professional or industry accounts or memberships, rights of personality, moral rights and other proprietary or similar rights. TripWorks’ Intellectual property includes without limitation, its Trademarks, the TripWorks Platform and the TripWorks Confidential Information.TripWorks hereby grants to Merchant a limited, revocable, non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license during the License Period to display certain Trademarks delivered by TripWorks to Merchant for use by Merchant on the TripWorks Platform (the “TripWorks Marks”). Merchant shall display the TripWorks Marks as explicitly directed by TripWorks in its sole discretion. Merchant acknowledges and agrees that the TripWorks may monitor and inspect the Merchant’s website, mobile application, and physical location (if applicable) in order to confirm all related advertising, promotional and other related uses of the TripWorks Marks.  The foregoing limited license shall terminate immediately and automatically upon (a) expiration or termination of this Agreement, or (b) TripWorks’ notice to Merchant of license revocation, at which time Merchant must immediately cease using the TripWorks Marks in all instances.Merchant hereby grants to TripWorks a limited, revocable, non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license during the Term to display certain Trademarks delivered by Merchant to TripWorks for use on the TripWorks Platform (the “Merchant Marks”). Once Merchant’s Account is complete and verified by TripWorks, TripWorks will display the Merchant Marks on the TripWorks Platform to identify the Merchant Services to Customers and prospective Customers.  Merchant, upon its request, shall have the right to direct TripWorks to remove or replace the Merchant Marks. This limited license shall terminate immediately upon (a) expiration or termination of this Agreement, or (b) Merchant’s notice to TripWorks, at which time TripWorks must remove the Merchant Marks from the TripWorks Platform.Representations & Warranties
Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party.Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights.Confidentiality
For the purposes of this Section, the term “Discloser” means the party that discloses information and the term “Recipient” means the party that receives such information as such terms may apply to the parties from time to time.Recipient agrees not to use any Confidential Information (as defined below) disclosed to it by Discloser for its own use or for any purpose other than in furtherance of and accordance with this Agreement.  Recipient shall not disclose or cause disclosure of any Confidential Information to any third party, provided, however, that Recipient may disclose Confidential Information to its directors, officers, members, employees, consultants and agents who have a bona fide need to know such information in order to carry out the business of Recipient in accordance with this Agreement. Recipient agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and/or use of Confidential Information in order to prevent it from public disclosure or the possession of persons other than those persons authorized under this Agreement. Such measures shall include at least the degree of care that Recipient utilizes to protect its own Confidential Information of a similar nature. Recipient agrees to notify Discloser promptly of any misuse, misappropriation or unauthorized disclosure of Confidential Information which may come to Recipient’s attention, to allow Discloser the opportunity to remedy, limit or prevent such disclosure.“Confidential Information” means (i) the TripWorks Platform, (ii) any oral, written, graphic or machine-readable information, technical data and know-how, including, but not limited to, each party’s Intellectual Property, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, algorithms, business plans, agreements with third parties, services, customer information of any kind, marketing and finances of Discloser, and (iii) any other information that would, under the circumstances, appear to a reasonable person to be confidential or proprietary, whether or not identified as confidential or proprietary.Notwithstanding the above, Recipient shall not have liability to Discloser with regard to any Confidential Information that Recipient can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of Recipient; (ii) was known to Recipient, without restriction, before disclosure, as demonstrated by files in existence at the time of disclosure; (iii) was independently developed by Recipient without any use of or reliance on the Confidential Information, as demonstrated by files created at the time of such independent development; (iv) is disclosed with the prior written approval of Discloser; or (v) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that Recipient shall first provide prompt notice of such court order or requirement to Discloser to enable Discloser to seek a protective order or otherwise prevent or restrict such disclosure.Recipient agrees, except as otherwise expressly authorized by Discloser, not to make any copies or duplicates of any Confidential Information. Any materials or documents that have been furnished by Discloser to Recipient in connection with this Agreement shall be promptly returned by Recipient, accompanied by all copies of such documentation, in all media, within ten (10) days after the expiration or termination of this Agreement.Use of Data
Notwithstanding anything to the contrary set forth in this Agreement, Merchant hereby grants to TripWorks a non-exclusive, worldwide, perpetual, royalty-free, fully paid-up, irrevocable, sublicensable, and transferable license and right to use data deriving from, constituting, or included in the Merchant Account for benchmarking purposes and to improve its ordinary business offerings, including any updates and improvements to the TripWorks Services, but only to the extent such data is de-identified to third parties in a manner that such third parties could not reasonable infer the source of the data. All improvements or derivative works as a result of processing such data shall remain the exclusive property of TripWorks.Disclaimer of Warranties
EXCEPT AS OTHERWISE SET FORTH HEREIN, TRIPWORKS MAKES NO AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THE TRIPWORKS PLATFORM AND ALL TRIPWORKS SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. TRIPWORKS DOES NOT WARRANT OR GUARANTEE THAT THE TRIPWORKS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT MERCHANT’S AFFILIATION WITH TRIPWORKS WILL RESULT IN ANY REVENUE OR PROFIT FOR MERCHANT. FOR THE AVOIDANCE OF DOUBT, TRIPWORKS DOES NOT GUARANTEE THAT THE TRIPWORKS PLATFORM WILL BE OPERABLE AT ALL TIMES, INCLUDING OUTAGES (I) TO ANY PUBLIC INTERNET BACKBONES, NETWORKS OR SERVERS; (II) CAUSED BY ANY FAILURES TO MERCHANT’S EQUIPMENT, SYSTEMS OR LOCAL ACCESS SERVICES, (III) FOR PREVIOUSLY SCHEDULED OR EMERGENCY MAINTENANCE OR (IV) ANY FORCE MAJEURE EVENT.Indemnification
Merchant shall indemnify, defend and hold harmless TripWorks and its affiliates, employees, directors, officers, agents and representatives from and against any and all liabilities, losses, damages, costs or expenses (including, without limitation, reasonable attorneys’ fees and court costs) incurred by such indemnitees, arising from or related to any claim, demand, action or other proceeding brought or asserted by a third party in connection with (i) any use by a Customer of the Merchant Services, including without limitation any damage to property or persons; (ii) the violation of the Intellectual Property rights of any third party by the Merchant Marks or other Merchant Intellectual Property; and (iii) any material breach of this Agreement by Merchant.Limitation of Warranty
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE TRIPWORKS PLATFORM OR OTHER TRIPWORKS SERVICES PROVIDED HEREUNDER OR ANY DELAY IN DELIVERY OR FURNISHING THE TRIPWORKS SERVICES WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF THE APPLICABLE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.EXCEPT FOR BREACHES OF CONFIDENTIALITY AND EACH PARTY’S INDEMNFICATION OBLIGATIONS HEREUNDER, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT OR ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, SHALL IN NO EVENT BE GREATER THAN THE FEES COLLECTED BY TRIPWORKS FROM MERCHANT UNDER THIS AGREEMENT.Miscellaneous
Force Majeure.  Neither party will incur any liability to the other on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond its control and without negligence of the parties. Such events, occurrences or causes will include, without limitation, acts of God, pandemics, viruses, government action, strikes, lockouts, riots, acts of war, earthquakes, flood, fire and explosions, power outages, and software or hardware malfunction (each, a “Force Majeure Event”).Independent Contractors. The parties intend to act and perform as independent contractors and the provisions hereof are not intended to create any partnership, joint venture, agency or employment relationship between the parties or between a party and the employees, agents or independent contractors of the other party.Severability. If any provision of this Agreement or any part of any such provision is held under any circumstances to be invalid or unenforceable in any jurisdiction, then (a) such provision or part thereof shall, with respect to such circumstances and in such jurisdiction, be deemed amended to conform to applicable laws so as to be valid and enforceable to the fullest possible extent, (b) the invalidity or unenforceability of such provision or part thereof under such circumstances and in such jurisdiction shall not affect the validity or enforceability of (i) such provision or part thereof under any other circumstances or in any other jurisdiction or (ii) the remainder of such provision or the validity or enforceability of any other provision of this Agreement.Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of New Jersey, without regard to conflicts of law principles. MERCHANT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY.Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by e-mail or fax, or 48 hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, and addressed to the party to be notified at such party’s address as set forth below, or as subsequently modified by written notice. If to TripWorks: TripWorks LLC, 1 High Street Court, Morristown, NJ 07945, USA.Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power, privilege or remedy under this Agreement shall operate as a waiver of such right, power, privilege or remedy; and no single or partial exercise of any such right, power, privilege or remedy shall preclude any other or further exercise thereof or of any other right, power, privilege or remedy. No party shall be deemed to have waived any claim arising out of this Agreement, or any right, power, privilege or remedy under this Agreement, unless the waiver of such claim, right, power, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of the waiving party; and any such waiver shall only apply to the specific instance to which such waiver relates.Entire Agreement. This Agreement, including any Orders and the agreements referenced herein, and hereby incorporated into this Agreement, constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and merges all prior agreements and understandings, whether written or oral.  This Agreement may not be amended, modified, or revoked, in whole or in part, except by an agreement in writing signed by each of the parties.Assignment. This Agreement and all obligations hereunder may not be assigned, delegated or otherwise transferred by Merchant, including by change of control, without the prior written consent of TripWorks. TripWorks may assign, delegate, or otherwise transfer this Agreement and all obligations hereunder without Merchant’s prior written consent, provided that the TripWorks provides written notice of such assignment. Any purported assignment in violation of this provision shall be null and void. This Agreement will be binding upon the parties and their respective representatives, executors, administrators, estate, heirs, successors and assigns.Last modified: November 22, 2022