Terms and Conditions
TRIPWORKS MERCHANT AGREEMENT
Last updated: April 8, 2025
This TripWorks Merchant Agreement (“Merchant Agreement”) contains the terms under which TripWorks, Inc. (“TripWorks”) agrees to grant the Merchant identified on the applicable Order Form (“Merchant”) access to and use of TripWorks online platform and services. The current version of this Merchant Agreement is available online at tripworks.com/terms-and-conditions. TripWorks and Merchant may be individually referred to as a “Party” and together, as the “Parties” in this Merchant Agreement.
By executing an Order Form that references this Merchant Agreement, the Parties agree to be bound by the terms and conditions of this Merchant Agreement and is effective as of the Order Form Execution Date, and as may be updated from time to time in accordance with Section 2.3. This Merchant Agreement incorporates the TripWorks Privacy Policy, as updated from time to time, which is available at tripworks.com/privacy-policy (“Privacy Policy”). The Privacy Policy is hereby incorporated by reference and forms an integral part of this Agreement. By entering into this Agreement, Merchant acknowledges that it has read and understood the Privacy Policy and agrees to be bound by its terms.
1.Definitions
1.1 “Agreement” means this Merchant Agreement together with each applicable Order Form, addendums or other attachments and exhibits.
1.2 "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.
1.3. “Confidential Information” means information in any form, whether oral or written, of a business, financial or technical nature which is disclosed by a party (“Disclosing Party”) during the Term and which the recipient (“Receiving Party”) reasonably should know is confidential, but excluding the information listed in Section 7.2. The terms of this Agreement (including pricing) are each party’s Confidential Information.
1.4 “Customer(s)” means a purchaser of Merchant Services through the TripWorks Platform.
1.5 “Customer Payments” means the total amount of payments collected by TripWorks from Customers for the Merchant Services.
1.6 “Effective Date” means the date set forth in the Order Form.
1.7 “Fraudulent Charge” means a credit or debit card charge by a Customer that is determined by the card company or payment processor to be fraudulent.
1.8 “Gross Revenue” as used herein, means all amounts collected from sales of Merchant Services purchased by Customers on the TripWorks Platform. Any references to “revenue”, “transaction volume”, “processing volume” or the like shall refer to this definition.
1.9 “Merchant” means the entity identified as such in the Order Form.
1.10 “Merchant Account” has the meaning set forth in Section 2.5.
1.11 “Merchant Bank Account” means any bank account that you link to TripWorks Platform or third party payment processor used by TripWorks.
1.12 “Merchant Content” means (a) each and all of the text, graphics, logos, video, audio, information, data, software, and other content and materials relating to the Merchant Services which are produced or provided by or for Merchant, and (b) any and all copyrights, trademarks and other intellectual property and proprietary rights related thereto, as now or hereafter constituted and in any form or media.
1.13 “Merchant Payments” means Customer Payments minus TripWorks Fees and amounts due to TripWorks under the Order Form, all Customer refunds, Chargebacks, credit or debit card processing fees and charges, including currency conversion fees, and Fraudulent Charges.
1.14 “Merchant Service(s)” means any and all goods and services offered for sale by Merchant through the TripWorks Platform.
1.15 “Order Form(s)” 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.
1.16 “Service(s)” means the TripWorks Platform and any other services described on separate Order Forms.
1.17 “TripWorks Fees” may include, without limitation, an amount equal to a percentage of the Gross Revenue collected by Merchant for each Customer, fixed per-transaction fees, subscription fees, inactivity or maintenance fees, credit card processing fees and other fees, as set forth in the Order Form.
1.18 “TripWorks Services” means any and all services provided by TripWorks to Merchant, including a license to the TripWorks Platform and any other services set forth in the applicable Order Form.
1.19 “TripWorks Platform” or “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.
1.20 “TripWorks Widget” means any software code, embed, application, plugin, or other technology provided by TripWorks that enables booking functionality or access to the TripWorks Platform on a website, mobile application, or other digital property controlled by Merchant. The TripWorks Widget is part of the TripWorks Platform and subject to all usage restrictions and licensing terms contained in this Agreement.
1.21 “User(s)” means one or more of any person or entity that is authorized by Merchant to access the Merchant’s Account.
2. Services
2.1 Subscription. The Services to be provided to Merchant by TripWorks shall be described on separate Order Forms. By entering into this Agreement, TripWorks hereby grants Merchant, during the Term of this Agreement, and subject to the terms and conditions set forth herein, a limited, non-exclusive, non-transferable, non-sublicensable, revocable subscription right to access and use the TripWorks Platform and the Services specified in Order Form solely for use by authorized users in accordance with the terms of the Agreement. No implied license(s) are granted herein, and Merchant may not use the Services or the TripWorks Platform except for Merchant’s internal business purposes pursuant to the limited rights granted in this Agreement, including the applicable Order Forms. Except for the foregoing subscription right, no other right in the Services is granted hereunder, and the Service is and will remain the sole and exclusive property of TripWorks whether the Service is separate or integrated with any other products, services or deliverables. In the event of any conflict between this Merchant Agreement and an Order Form, the provisions of this Merchant Agreement shall prevail, unless the terms of the Order Form specifically reference the provision of this Merchant Agreement which is superseded. Merchant may purchase additional Services or otherwise expand the scope of Services by entering into and executing a mutually agreed Order Form.
2.2 Service Levels. TripWorks will use commercially reasonable efforts to maintain the availability and functionality of the TripWorks Platform. TripWorks will use reasonable efforts to perform scheduled maintenance during off-peak hours and will provide advance notice to Merchant when reasonably practicable. In the event of service disruptions or performance issues that materially affect Merchant's use of the TripWorks Platform, TripWorks may, in its sole discretion, provide service credits or other remedies as determined appropriate based on the nature and duration of the issue. Any service credits or remedies provided under this section shall constitute Merchant's sole and exclusive remedy for service disruptions.
2.3 Changes to Agreement. From time to time, TripWorks may change the terms of this Merchant Agreement. TripWorks reserves the right to make any and all such changes. TripWorks will use reasonable efforts to provide thirty (30) days notice of any change via email that materially alters the terms of this Merchant Agreement. Merchant's continued use of the TripWorks Platform and/or Services constitutes acceptance of the modified terms of this Merchant Agreement. The version of the Merchant Agreement in effect at any given time will be dated and accessible through the TripWorks website.
2.4 Access Services Updates. The Merchant’s access to the Services is limited to the then-current version in TripWork’s production environment, accessed via the internet using a Merchant-provided browser that is compatible with TripWork’s Platform. TripWorks regularly updates its Services and reserves the right to add or substitute materially equivalent functional products or features in the event of product unavailability, end-of-life, updates or changes to software requirements. The Services will be hosted on a server that is maintained by TripWorks or its designated third-party supplier or data center. Merchant is solely responsible for obtaining and maintaining at its expense all equipment needed to access the Services, including internet access and adequate bandwidth.
2.5 Merchant Account. Merchant must set up an account with TripWorks in connection with Merchant’s use of the TripWorks Platform (“Merchant Account”). 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 any Merchant Account, suspend any User credentials and/or modify any features or functionalities available to Merchant on its Merchant Account for any activity TripWorks reasonably deems inappropriate, unlawful or in violation of this Agreement.
2.6 Merchant’s Responsibilities.
2.6.1 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 TripWorks Platform; (v) on an ongoing basis, review and confirm the transactions, fees and charges processed through the TripWorks Platform, and promptly fix any inaccuracies.
2.6.2 Merchant is solely responsible for the accuracy of all Merchant Content, including pricing and availability details, whether or not such information is communicated to TripWorks or whether TripWorks installs such Merchant Content. Merchant acknowledges it maintains final approval of all Merchant Content posted anywhere within the TripWorks Platform and will hold TripWorks harmless for any errors or inaccurate information contained in the Merchant Content.
2.6.3 Merchant expressly acknowledges that it is the sole seller of record of all Merchant Services, and that TripWork’s activities are undertaken solely to assist Merchant in facilitating the sale of such Services. Except for the limited purpose described in Section 3.2, Merchant acknowledges that TripWork’s is not Merchant’s agent and nothing in this Agreement can be construed to the contrary. TripWorks will not be a party to any agreement between Merchant and any Customer and Merchant is directly responsible for any and all breaches or other liabilities occurring in connection with the Merchant Services.
2.7 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 the TripWorks 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.
2.8 Use of Third-Party Providers. TripWorks or a third-party provider may provide Merchant with Services. Such Services may include without limitation, assistance with the development of websites and other related services. Merchant acknowledges and understands that the use of any third-party service providers may be subject to separate terms and conditions as set forth on an Order Form or as otherwise provided to Merchant.
2.9 Electronic Messaging. TripWorks may include the ability within the TripWorks Platform to communicate with Customers using SMS, other text message mechanisms, email, or other electronic messaging platforms (each an “Electronic Message”). To the extent Customers opt-in to Electronic Messages, the following terms apply:
2.9.1 Merchant expressly authorizes TripWorks, through its vendors or agents, to communicate with Customers through Electronic Messages.
2.9.2 Merchant shall ensure that all Electronic Messages comply with applicable law.
2.9.3 Merchant shall include the following or substantially similar language prominently in Merchant’s applicable terms and conditions or similar agreement with Customers:
“By opting into text or other electronic messages, you: (i) expressly consent to be contacted by [MERCHANT NAME] or our agents for all purposes arising out of or relating to your relationship with us at the telephone number(s) you provide, including for marketing or promotional messages; (ii) agree we may contact you in any way, including SMS messages, and calls, if applicable, and messages delivered using auto telephone dialing system or an automatic texting system; and (iii) represent and warrant that you have read, or had the opportunity to read, and agree to our terms and conditions or similar agreement and privacy policy, located at: [insert hyperlinks]. While variable based on your purchase behavior, marketing-based text messages will not exceed 5 per month. You understand that consent is not a condition of purchase. You can unsubscribe from further text messages by replying STOP. Message and data rates may apply.”
2.9.4 Merchant shall abide by all restrictions imposed by TripWorks regarding the use of Electronic Messages.
2.9.5 Merchant hereby grants to TripWorks a limited, non-exclusive license to use Merchant’s name, marks, logos, and other identifiers as necessary to carry out the foregoing and as otherwise needed to send Electronic Messages.
2.9.6 Merchant acknowledges that TripWorks is not responsible for any Electronic Messages or other communications that occur between Merchant and Customers outside of the TripWorks Platform.
2.9.7 Merchant represents and warrants that all Customers expressly consent to providing their phone numbers, email addresses, or other identifiable electronic contact information for the purpose of receiving Electronic Messages. Merchant shall notify all such Customers of their right to unsubscribe from further Electronic Messages by providing the notice above. Merchant shall indemnify and hold the TripWorks Indemnified Parties harmless arising out of related in any way related to your breach of the foregoing.
3. Payment for Services
3.1 Fees. TripWorks is entitled to fees as set forth in the Order Form. TripWorks will retain the TripWorks Fees for its own account from Customer Payments and remit the Merchant Payment to Merchant. If the Merchant collects partial payments on Merchant Services, TripWorks Fees will be collected at the time the partial payment is collected; unless specified otherwise in writing. In the event Merchant assumes responsibility for any TripWorks Fees as specified in the Order Form, Merchant shall be solely responsible for the provision of the TripWorks Fees to TripWorks in accordance with the payment terms set forth in the applicable Order Form. Any modifications made to TripWorks Fees will be made and effective as set forth in a mutually agreed Order Form.
3.2 Collection and Remittance.
3.2.1 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. TripWorks will use third party payment processors for all credit and debit card transactions as determined solely by TripWorks, and this Agreement will be subject to the requirements of such processors and applicable law.
3.2.2 At the time of this Agreement, 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.
3.2.3 Except as otherwise provided in the Agreement, TripWorks will remit to Merchant, the total amount of payments collected by TripWorks from Customers for the Merchant Services (“Customer Payments”) minus TripWorks Fees and amounts due to TripWorks, all Customer refunds, Chargebacks, credit or debit card processing fees and charges, including currency conversion fees, and Fraudulent Charges unless otherwise stated and agreed in the Order Form. All such payments by TripWorks are collectively referred to as “Merchant Payments.” Unless otherwise provided Order Form or applicable addendum, Merchant Payments will be made each business day that is not a bank holiday. All Merchant Payments will be converted into and made in US Dollars, unless otherwise agreed upon by the parties in the Order Form. TripWorks is not responsible for the collection or payment of any incidentals from Customers. TripWorks reserves the right to withhold any Merchant Payments if it reasonably believes that such payments may be subject to Chargebacks, or Fraudulent Charges.
3.2.4 In the event Customer Payments are insufficient to cover the amounts owed to TripWorks under this Agreement, you authorize and request TripWorks to debit your Merchant Bank Account for any amount owed to TripWorks at any frequency. Merchant also authorizes TripWorks to charge Merchant’s credit or debit card for amounts owed. Merchant agrees to keep its Merchant Bank Account and credit/debit card information current and up-to-date at all times during the Term. Failure to maintain current and valid payment methods shall constitute a material breach of this Agreement.
3.2.5 TripWorks also reserves the right to invoice Merchant for TripWorks Fees or amounts owed in TripWork’s sole discretion. Merchant acknowledges that if Merchant uses a third-party processor rather than TripWorks Platform for payment processing, Merchant is solely responsible for such credit card fees. Merchant shall make payment of each invoice within thirty (30) days of the invoice date.
3.3 Failure to Pay.
3.3.1 In the event Merchant fails to pay a TripWorks invoice within thirty (30) days of invoice date, such unpaid amounts may be subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. Furthermore, TripWorks may, in addition to any other right or remedy it has pursuant to this Agreement or applicable laws, terminate and/or suspend the Services, any Order Form and/or the Agreement. Such termination and/or suspension shall not be deemed a waiver of any right or remedy TripWorks may have against Merchant.
3.3.2 Merchant shall reimburse any reasonable costs and expenses (including, but not limited to, reasonable attorney fees) incurred by TripWorks to collect any amount that is not paid by Merchant when due. If Merchant fails to pay such invoice when due, Merchant acknowledges that TripWorks may seek to collect on the unpaid amounts, including by referral of Merchant’s unpaid invoice to a collection agency. Merchant is responsible for any costs incurred in connection with the recovery of the unpaid amounts (including the agency’s fees and any legal fees).
3.4. Taxes With respect to payments collected by TripWorks for purchases of Merchant Services through the TripWorks Platform, TripWorks will collect and withhold from Customers all applicable Transaction Taxes and will remit such Transaction Taxes to Merchant as part of the Merchant Payments. “Transaction Taxes” means all applicable sales, use taxes, value added taxes (VAT), and other transactional taxes for purchases of Merchant Services. Merchant shall comply with all applicable laws and timely file all returns and remit all taxes and other governmental charges in connection with the sale or performance of the Merchant Services (including all Transaction Taxes, whether TripWorks collected the Customer Payment or Merchant collected the Customer Payment directly) and any payments accrued or received by Merchant for the Merchant Services. Merchant shall fully indemnify, hold harmless, and defend TripWorks and its Affiliates and contractors from all liabilities related to taxes and other governmental charges, including Transaction Taxes. Merchant acknowledges that TripWorks may be legally required to report the Merchant Payments and other payments made to Merchant to tax or other governmental authorities under applicable law.
3.5 Refunds, Chargebacks and Fraudulent Charges.
3.5.1 Merchant may provide refunds or adjustments to Customers for their purchases of Merchant Services made through the TripWorks Platform using refund functionality enabled by and accessible through the TripWorks Platform. Funds to cover refunds will be deducted from Merchant’s payout balance during each remittance of Merchant Payments as described in the Merchant Agreement. In the event of insufficient funds to cover the amount of the refund, TripWorks may recoup the amounts as set forth in Section 3.2. TripWorks may retain from Merchant or Customers any TripWorks Fees and applicable processing fees on refunded transactions.
3.5.2 In the event a Customer who purchased the Merchant Services initiates a Chargeback, Merchant acknowledges and consents for TripWorks to deduct the full amount of the Chargeback, as well as any associated fees, fines, or penalties, received from Customer Payments from the next Merchant Payment due to Merchant. If Merchant’s next Merchant Payment is insufficient, Merchant shall pay TripWorks the full Chargeback balance as set forth in Section 3.2. TripWorks will use reasonable efforts to investigate and, if appropriate, challenge suspect Chargebacks. Merchant shall use reasonable efforts, at Merchant’s sole expense, to assist TripWorks in the investigation of any such suspect Chargebacks. If TripWorks, in its sole judgment, determines that a separate agreement sufficiently protects it from a particular Chargeback, TripWorks may, in its sole discretion, waive Merchant’s obligation to compensate TripWorks directly.
3.5.3. If TripWorks determines, in its reasonable discretion, that Merchant is incurring or may incur excessive Chargebacks, TripWorks may establish controls or conditions governing Merchant’s account, such as: (a) establishing new processing fees and charging Merchant for excessive dispute charges or chargeback fees imposed by a payment processor or credit card company, (b) delaying Merchant Payments, including imposing an indefinite delay or modifying Merchant’s payout plan, (c) refusing the award of Chargebacks, (d) terminating or suspending Merchant’s access to the TripWorks Platform, or (e) creating a reserve fund of a reasonable amount, determined solely by TripWorks, from Customer Payments to use for Chargebacks or, if insufficient, as set forth in Section 3.2. After the maximum time period for a dispute window has closed following termination of a Service Order Form or the Agreement, TripWorks will remit to Merchant any remaining balance in the reserve fund as part of the final Merchant Payment to Merchant.
3.5.4 If TripWorks elects to terminate this Agreement because TripWorks, in its sole discretion, determines an excessive number of disputes or Chargebacks may occur, TripWorks may refund any and all amounts collected to Customer as TripWorks determines necessary to avoid or prevent disputes or Chargebacks.
3.5.5. In the event of a Fraudulent Charge, Merchant acknowledges and consents for TripWorks to deduct the full amount of the Fraudulent Charge, as well as any associated fees, fines, or penalties, received from Customer Payments from the next Merchant Payment due to Merchant or, if insufficient, as set forth in Section 3.2.
4. Term
4.1. Term. The term of this Agreement commences on the Effective Date and ends on the date specified in the Order Form (“Initial Term”). Following the Initial Term, this Agreement automatically renews for successive terms in length equal to the Initial Term (each, a “Renewal Term”). Either Party may terminate a Renewal Term for convenience by providing written notice of non-renewal to the other Party at least thirty (30) days prior to the end of the applicable Renewal Term. The Initial Term and each Renewal Term are referred to in this Agreement as the “Term.” Except as expressly provided herein, renewal of any promotional or one-time priced subscriptions shall be at TripWork’s applicable list price in effect at the time of renewal. Notwithstanding anything to the contrary, any renewal in which volume or term length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior year's per-unit pricing.
5. Termination
5.1. Termination for Breach. In addition to the rights to terminate provided herein, this Agreement and all Order Forms may be terminated by either Party in the event of (i) a material breach by the other Party (the “Defaulting Party”) of any of its material obligations under this Agreement or any applicable Order Form and failure by the Defaulting Party to remedy such breach within thirty (30) days after written notice of such breach is provided to the Defaulting Party. In the event of such termination neither Party shall be relieved of any of its obligations incurred prior to such termination, and neither Party shall be relieved of any obligations that shall, by its terms, survive the termination of this Agreement.
5.2 Termination for Dissolution, Bankruptcy. In addition to the rights to terminate provided herein, this Agreement and any or all Order Forms may be terminated, by either Party, effective immediately and without notice, in the event of (i) the dissolution, termination of existence or liquidation, in each case without a successor, of the other Party, or (ii) the institution by or against the other Party of any proceeding under the United States Bankruptcy Code or any other foreign, federal or state bankruptcy, receivership, insolvency or other similar law affecting the rights of creditors generally which is not dismissed within sixty (60) days of the commencement thereof.
5.3. Effects of Termination. Upon the termination of this Agreement for any reason, Merchant shall not have the right to access, or use the TripWorks Platform. Termination of the Agreement or an Order Form by either Party will not limit a Party from pursuing any other remedies available to it, including injunctive relief. Unless the Parties agree to otherwise in writing, and except for termination for material breach by TripWorks, termination will not release Merchant from its obligation to pay all fees and amounts that Merchant has agreed to pay under the Agreement. If TripWorks terminates the Agreement for Merchant’s non-payment of undisputed fees, Merchant agrees to pay to TripWorks the remaining value of the applicable Order Form for all remaining years. Merchant acknowledges this as liquidated damages reflecting a reasonable measure of actual damages and not a penalty. Order Forms or other similar agreements that are not terminated will continue in full force and effect under the terms of the Agreement. Merchant shall purge all copies of all TripWorks Content from any computer, server, or other hardware, and each Party will return the other Party’s Confidential Information. Merchant shall continue to fulfill all Merchant Services sold through the TripWorks Platform, and all terms of this Agreement with respect to the fulfillment of unused Merchant Services sold through the TripWorks Platform will survive termination until their applicable expiration. All claims or causes of action in existence as of the date of termination survive.
6. Merchant Restricted Activities
6.1 Merchant shall not:
(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 any Trademark 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 there to;
(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 TripWorks Platform (whether in source code, object code or other form) in any way or for any purpose;
(7) If TripWorks or a third-party provider builds a website for Merchant, use any competing booking or scheduling widgets. Merchant agrees to use only the TripWorks Widget on such site. Violation of this clause constitutes a material breach of this Agreement. Merchant will have one (1) business day to cure this breach. If Merchant fails to cure, TripWorks may terminate Services under Section 5;
(8) Use the TripWorks Platform to engage in illegal activities; and
(9) Intentionally or negligently upload or transmit any virus, malware, or other malicious code to the TripWorks Platform.
7. Confidentiality
7.1 Obligations. All information, including the terms of this Agreement, applicable including any Order Form, pricing, programs, brochures, reports, technical information, non-technical information, mailing lists, and other such information of any nature made available to either Party by the other Party, by virtue of the association hereunder, including, but not limited to information relating to the Services or the TripWorks Platform and the ideas, technology, techniques, processes and procedures constituting the Services or the TripWorks Platform, or relating to the use of the Services or the TripWorks Platform and any information disclosed by TripWorks, in whatever form, that relates to the Services or the TripWorks Platform, Merchant Data (collectively, the “Confidential Information”) shall be held in strict confidence and neither Party shall disclose any such Confidential Information to any other person or party without the written consent of the other Party. The receiving Party shall take reasonable measures to maintain the confidentiality of the Confidential Information in its possession or control, but which will in no event be less than the measures it uses to maintain the confidentiality of its own information of a similar nature. The receiving Party shall not use any Confidential Information for any purpose other than in connection with the performance of its obligations hereunder and as permitted by this Agreement. Confidential Information shall not include information that (i) is or becomes generally known to the public through no breach of any confidentiality obligation; (ii) is rightfully known to the receiving Party at the time of disclosure by the disclosing Party without violation of any confidentiality restriction and without any restriction on the receiving Party's further use or disclosure of same; or (iii) is independently developed by the receiving Party without any use of or reference to the disclosing Party's Confidential Information as demonstrated by documentary evidence.
7.2 Exceptions. The receiving Party may disclose the Confidential Information to its employees or consultants with a need to know for the performance of this Agreement (subject to disclosure restrictions comparable to those set forth herein) and shall remain responsible for all use of the Confidential Information by such employees or consultants. Furthermore, the receiving Party may disclose the Confidential Information (i) to the extent required by law or pursuant to the order or requirement of, or in connection with proceedings before, a court, administrative agency or other governmental body, provided that before such disclosure is made receiving Party has, to the extent permissible by law, made reasonable efforts to notify the disclosing Party of the intended disclosure to allow the disclosing Party an opportunity to object to the disclosure; and (ii) to the extent required and on a confidential basis to its legal and/or financial advisors.
7.3 Remedies. In the event that the receiving Party engages in, or threatens to engage in any act which violates any provision of this Section 6, the Parties agree that the non-breaching Party will have no adequate remedy in monetary damages and accordingly, shall be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of this section 6. The non-breaching Party shall not be required to post a bond or other security in connection with the granting of any such relief. The provisions of this section shall survive expiration or other termination of this Agreement.
7.4 Prior Non-Disclosure Agreement. Any existing non-disclosure agreement entered into by the Parties is hereby superseded and replaced by the terms in this Section 6, which will govern all disclosures and exchanges of Confidential Information made by the Parties previously under such non-disclosure agreement.
8. Proprietary Rights and Restrictions
8.1 Intellectual Property.
8.1.1 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, source code, databases and compilations and all registered and unregistered copyrights; (iii) all unpatented inventions, discoveries, processes, 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, Feedback (defined below)and the TripWorks Confidential Information, including any and all customizations, improvements, updates, changes, modifications, enhancements, and/or derivative works thereof.
8.1.2 TripWorks hereby grants to Merchant a limited, revocable, non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license during the Term 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.
8.1.3 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.
8.2 Use of Merchant 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 (“Merchant Data”) for benchmarking purposes and to improve its ordinary business offerings, including any updates and improvements to the TripWorks Services, and to develop new products and services, to the extent such data is de-identified to third parties in a manner that such third parties could not reasonably 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.
8.3 Feedback. Merchant may provide suggestions, comments, or other feedback (collectively, "Feedback") to TripWorks with respect to the Services. Merchant agrees that TripWorks shall own all right, title and interest to the Feedback.
9. Indemnification
9.1 TripWorks Indemnity. During the Term and provided that Merchant is then not in material default of the Agreement, TripWorks shall: (a) defend Merchant against any claim or lawsuit by a third party (a “Claim”) against Merchant to the extent the Claim alleges that the use of the Services by Merchant in accordance with the terms of the Agreement infringes any U.S. patent, copyright or federally registered trademark, or misappropriates a trade secret of a third party; and (b) pay any damages awarded against the Merchant for the Claim or any amounts agreed by TripWorks and the claimant for the settlement of the Claim. If Merchant’s use of the Services is enjoined or TripWorks determines that use may be enjoined, then TripWorks may, at its sole discretion and expense, either, (1) modify the Services to be non-infringing, (2) obtain for Merchant a license to continue using the affected portion of the Services, or (3) if TripWorks determines that neither (1) nor (2) are practical, terminate the subscription and access to the affected portion of the Services and refund to Merchant the unused portion of prepaid fees for the affected portion of the Services as of the effective date of termination.
9.2 TRIPWORKS INDEMNITY LIMITATIONS. THE RIGHTS GRANTED TO MERCHANT UNDER SECTION 9.1 WILL BE MERCHANT’S EXCLUSIVE REMEDY AND TRIPWORKS’SOLE OBLIGATION AND LIABILITY FOR ANY ALLEGED INFRINGEMENT OF A PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHT, INCLUDING MISAPPROPRIATION OF A TRADE SECRET. TRIPWORKS HAS NO LIABILITY OR INDEMNIFICATION OBLIGATION FOR ANY CLAIM OF INFRINGEMENT CAUSED BY: (A) MODIFICATION OF THE TRIPWORKS PLATFORM OR SERVICES WITHOUT THE APPROVAL OF TRIPWORKS; (B) USE OF A SERVICE IN CONNECTION OR IN COMBINATION WITH EQUIPMENT, DEVICES, SERVICES OR SOFTWARE NOT PROVIDED BY TRIPWORKS; (C) COMPLIANCE WITH MERCHANT’S DESIGN REQUIREMENTS OR SPECIFICATIONS; (D) USE OF THE SERVICES OR TRIPWORKS PLATFORM OTHER THAN AS PERMITTED UNDER THE AGREEMENT, OR IN A MANNER NOT CONSISTENT WITH THE DOCUMENTATION; OR (E) USE OR DISTRIBUTION OF OTHER THAN THE MOST CURRENT RELEASE OR VERSION OF THE SERVICES OR TRIPWORKS PLATFORM IN PRODUCTION (IF THE INFRINGEMENT WOULD HAVE BEEN PREVENTED BY THE USE OF THIS RELEASE OR VERSION).
9.3 Merchant Indemnity. Merchant shall, at its own cost, (a) indemnify, defend, and hold harmless TripWorks, its affiliates and each of its and their parents, subsidiaries, officers, directors, members, agents, employees, contractors, directors, suppliers partners, licensors, and representatives (“TripWorks Indemnified Parties”) from and against any Claim to the extent that it is based on any assertion arising out of or relating to: (i) a breach or alleged breach by Merchant of this Agreement; (ii) any allegation or any Claim made by any third party alleging that the Merchant Data or any other data and or materials provided by Merchant to TripWorks infringe a third party’s intellectual property rights; (iii) Merchant’s (or any user’s) use or misuse of, or access to, the TripWorks Platform; and (iv) any Merchant Services, including without limitation any claim relating to product liability, warranties (express or implied), or failure to perform; and (b) pay any damages awarded against TripWorks for the Claim or any amounts agreed by Merchant and the claimant for the settlement of the Claim.
9.4 Procedures. The Party seeking indemnification (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing of any Claim for which it seeks indemnification hereunder; provided that the failure to provide such notice shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The Indemnifying Party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any such claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party informed of, and consult with the Indemnified Party in connection with the progress of such litigation or settlement, and (ii) the Indemnifying Party shall not have any right, without the Indemnified Party’s written consent (which consent shall not be unreasonably withheld), to settle any such claim in a manner that does not unconditionally release the Indemnified Party. At the Indemnifying Party’s request, the Indemnified Party will provide reasonable cooperation with respect to any defense or settlement.
10. Representations & Warranties
10.1 General. As of the Effective Date and at all times thereafter, each of the Parties represents and warrants that: (a) this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement and, as to Merchant, the Order Form was executed by a duly authorized representative of Merchant with authority to bind Merchant to this Agreement; (b) the execution and delivery of this Agreement by it and the performance of its obligations hereunder: (i) are not in violation or breach of, and will not conflict with or constitute a default under, any material contract, agreement or commitment binding upon it; and (ii) will not conflict with or violate in any material manner, any applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court having jurisdiction over such Party; and (iii) it is in compliance with all applicable federal, state and local laws, rules, regulations and ordinances, and all binding orders of any court, agency or other governmental body with appropriate authority and have obtained all applicable permits and licenses required of such Party in connection with their obligations under this Agreement.
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.
10.2 Merchant Representations and Warranties. Merchant further represents, warrants and covenants that (i) it shall use the Services and TripWorks Platform solely for its legitimate business purposes as contemplated by this Agreement, and shall not interfere with the integrity or performance of the Services or TripWorks Platform or the data contained therein or attempt to gain unauthorized access to the Services or Platform, (ii) Merchant will not use the Services in violation of Section 6, (iii) the Merchant Data and any sites to which a user is directed following a click on any such link will not contain any obscene, defamatory, infringing, illegal, deceptive, gambling related or hateful content, (iv) the Merchant Data will be free of any “virus”, “Trojan Horse”, “worm”, “disabling”, “lock out” or any other malicious code as such terms are understood in the computer industry, and (v) Merchant has obtained, and be deemed to have hereby granted to TripWorks, all authorizations, rights and/or licenses necessary to allow TripWorks to use, store, audit, optimize and serve the Merchant Content on the TripWorks Platform and through the Services. Additionally, Merchant represents and warrants that (vi) it has all necessary rights, licenses, and permits to provide the Merchant Services; (vii) the Merchant Services comply with all applicable laws; (viii) Merchant will not engage in any unfair, deceptive, or abusive acts or practices in connection with the Merchant Services.
10.3 TripWorks Representations and Warranties. TripWorks warrants and represents that: (i) it will use commercially reasonable and industry-standard methods to prevent the introduction, replication and distribution of viruses; and (ii) the Services to be provided under each applicable Order Form will conform in all material respects with the applicable Documentation.
10.4 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION, BOTH PARTIES (AND THEIR SUPPLIERS, PARTNERS, OR CONTENT PROVIDERS) DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE SERVICES ARE PROVIDED “AS IS.” NEITHER TRIPWORKS NOR ITS SUPPLIERS, PARTNERS, OR CONTENT PROVIDERS, WARRANT THAT THE SERVICES OR PLATFORM WILL OPERATE UNINTERRUPTED OR ERROR-FREE. TRIPWORKS SHALL NOT BE RESPONSIBLE FOR ANY INFORMATION PROVIDED BY MERCHANT IN MERCHANT DATA AND TRIPWORKS SHALL NOT BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF MERCHANT DATA. TRIPWORKS MAKES NO REPRESENTATION OR WARRANTY REGARDING THE RESULTS MERCHANT WILL OBTAIN BY USING THE SERVICES OR PLATFORM. TRIPWORKS AND TRIPWORK’S SUPPLIERS, PARTNERS AND CONTENT PROVIDERS, ACCEPT NO (AND DISCLAIM ALL) OBLIGATION OR LIABILITY WITH RESPECT TO THE EVENTS CREATED THROUGH USE OF THE SERVICES (OR ANY CONTENT OR COMMUNICATIONS PRESENTED OR MADE AVAILABLE THROUGH SUCH EVENTS OR THE ACTS AND OMISSIONS OF MERCHANT (AND ANY USERS) HOSTING OR ATTENDING SUCH EVENTS). ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE OR STATUTORILY, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. USE OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SERVICES AND MERCHANT DATA, MERCHANT UNDERSTANDS AND ASSUMES SUCH RISK. TO PROTECT MERCHANT’S DATA, TRIPWORKS MAY SUSPEND MERCHANT’S USE OF THE SERVICES IMMEDIATELY AND WITHOUT PRIOR NOTICE IF A BREACH OF SECURITY OF MERCHANT DATA IS SUSPECTED.
11. Limitation of Liability
11.1 OTHER THAN EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 9.1 AND 9.3 HEREIN, AND MERCHANT’S OBLIGATION TO PAY TRIPWORKS IN ACCORDANCE WITH THIS AGREEMENT OR AN APPLICABLE ORDER FORM, IN NO CASE SHALL EITHER PARTY, OR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, IN EXCESS (IN THE AGGREGATE), OF THE SUM OF THE AMOUNTS PAID TO TRIPWORKS IN THE MOST RECENT TWO (2) MONTHS UNDER THE APPLICABLE ORDER FORM(S) TO WHICH THE CLAIM RELATES.
11.2 EXCEPT AS SPECIFICALLY PROVIDED OTHERWISE HEREIN, IN NO EVENT SHALL EITHER PARTY, OR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE TO THE OTHER PARTY OR ANY CUSTOMER FOR ANY: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, COMPENSATORY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, DATA LOSS, LOSS OF REVENUES, LOSS OF OPPORTUNITIES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), FOR ANY DIRECT DAMAGES IN EXCESS OF FIVE-HUNDRED DOLLARS ($500).
11.3 Merchant shall maintain in full force and effect adequate liability insurance coverage in connection with the Merchant Services at all times during the Term and for a period of two (2) years following the end of the Term. Merchant shall at the request of TripWorks name TripWorks and its Affiliates as additional insureds on such insurance policies. Merchant’s compliance with this clause does not limit its indemnification or other obligations under this Agreement.
12. Miscellaneous
12.1 Headings. The section headings used in this Agreement are intended for reference purposes only and shall not affect the interpretation of this Agreement.
12.2 Counterparts. This Agreement may be executed in counterparts (which may be exchanged by email), each of which shall be deemed an original, but which together shall constitute one and the same instrument.
12.3 Force Majeure. Neither Party shall be liable for any failure or delay in the performance of any of their respective obligations if prevented from doing so by a Force Majeure Event. “Force Majeure Event” means (i) floods, storms, earthquakes, or other similar elements of nature or acts of God; (ii) riots, strikes, civil disorders, rebellions or revolutions in the country in which the Services are being performed; or (iii) any other cause beyond the reasonable control of the non-performing Party, provided the non-performing Party is without fault in failing to prevent or causing such default or delay, and such default or delay could not have been prevented or circumvented by the non-performing Party through the reasonable use of alternate sources, workaround plans or other reasonable precautions.
12.4 Independent Contractors. TripWorks is an independent contractor and this Agreement does not create an employment, agency, partnership, or joint venture relationship between TripWorks and Merchant or TripWorks and any Merchant personnel.
12.5 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall apply only to such provision. The illegality, invalidity, or unenforceability of such provision shall not in any manner affect or render illegal, invalid or unenforceable any other provision of this Agreement, and that provision, and this Agreement generally, shall be reformed, construed and enforced so as to most nearly give lawful effect to the intent of the Parties as expressed in this Agreement.
12.6 Governing Law. This Agreement, and all matters arising directly or indirectly from this Agreement, shall be governed by and construed in accordance with the laws of the state of New Jersey, without regard to its conflict of laws rules applicable to contracts. For all such matters, each Party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Morris County, New Jersey and each Party waives any jurisdictional, venue, or inconvenient forum objections to such courts.
12.7 WAIVER OF JURY TRIAL. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY RIGHT EACH MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER PARTY ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR ANY OTHER DOCUMENT EXECUTED AND DELIVERED BY EITHER PARTY IN CONNECTION HEREWITH.
12.8 Notices. All notices and other communications (collectively “Notices”) required to be given or delivered to a Party must be in writing and addressed to the Party at its principal corporate offices or as otherwise designated by notice hereunder. All Notices are deemed to have been given or delivered upon: (a) personal delivery; (b) three (3) days after deposit in the United States mail by certified or registered mail (return receipt requested); (c) two (2) business days after deposit with an internationally recognized overnight courier; or (d) one (1) business day after transmission by electronic mail. All Notices and other communications required or permitted under this Agreement must be made in the English language.
12.9 Waiver. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy under this Agreement shall operate as a waiver thereof.
12.10 Entire Agreement. This Agreement, its Order Form(s), addendums or other attachments and exhibits constitute the entire agreement of the Parties with respect to the subject matter hereof and supersedes any and all existing or prior agreements and communications, whether written or oral, relating to the subject matter hereof. TripWorks may modify the terms and conditions of this Agreement from time to time and will notify TripWorks of changes to these terms by posting the modified terms on TripWork’s website, contacting Merchant via email or providing notice in accordance with Section 12.8.
12.11 Assignment. Neither this Agreement, any Order Form, or any rights or licenses granted hereunder may be assigned by Merchant without the prior written consent of TripWorks. Any attempt to assign any rights, duties or obligations which arise under this Agreement or any Order Form without such consent shall be null and void. Notwithstanding the foregoing, Merchant may, without the need for TripWork’s prior written consent, assign this Agreement in its entirety to a successor in connection with a sale of all or substantially all of Merchant’s business or assets to which this Agreement relates, provided such successor is not a direct competitor of TripWorks. TripWorks may freely assign and transfer this Agreement, any Order Form, or any rights or licenses granted hereunder, in whole or part. Further, TripWorks may subcontract the provision of the Services in whole or in part to a TripWorks affiliate, provided TripWorks will remain responsible and liable for the provision of Services by the affiliate. This Agreement will be binding upon and will inure to the benefit of the Parties and their respective permitted successors and assignees.
12.12 Survival. The obligations under sections that contemplate performance or observance subsequent to termination or expiration of this Agreement, including Sections 3 and 6-11 and any other sections that state that they are to survive expiration or termination, shall survive the expiration or termination of this Agreement.
12.13 Non-Exclusivity. Subject to TripWork’s confidentiality obligations under this Agreement and provided no Merchant Data is used, nothing herein prevents or limits TripWork’s right to undertake engagements for any other entity, transfer or license the deliverables to other parties, or to reuse them in whole or in part in other projects.
12.14 Marketing Materials. Merchant agrees to use any marketing materials provided by TripWorks only for the purpose of marketing the Services detailed in this Agreement and its Order Forms. Merchant shall not use such marketing materials in any manner not authorized by TripWorks.
12.15 Remedies Not Exclusive. Except as expressly set forth herein, no remedy hereunder is intended to be exclusive of any other remedy available hereunder or at law or in equity.
12.16 No Strict Construction. If an ambiguity or question arises with respect to any provision of this Agreement, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring either Party by virtue of authorship of any of the provisions of this Agreement.
12.18 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.