Instant Book Terms And Conditions For TripAdvisor For Business Hotel Partners

1. Definitions

a.   The following terms have the meanings assigned to them.

“Affiliate(s)” means any entity that, directly or indirectly, controls or is controlled by, or is under common control with, a party.

“Agreement” has the meaning assigned to it in Section 2.

“Commission Rate” means the rate selected by Hotel Partner through its Management Center or an Instant Book Insertion Order.

“Connectivity Partner” means the technology company that works with Hotel Partners to support reservation transactions facilitated through the Instant Book Platform.

“Conversion Rate” is the percentage of visitors to your property page with Instant Book links who complete a reservation transaction through the Instant Book Platform.

“Customer(s)” are those users who select and book Hotel Partner’s Supply on the Instant Book Platform.

“Customer Care Policy” means the guidelines and procedures that a Partner follows in interacting and managing relationships with its users and customers generally and which is provided to TripAdvisor and displayed on the Supply Listing.

“Customer Information” has the meaning assigned to it in Section 8(b).

“Customer Stay” or “Stay” means a reservation completed by a customer and fulfilled by a Hotel Partner.

“Feed” has the meaning assigned to it in Section 3(c)(i).

“Hotel Partner” means a party that provides, lists or displays Supply on the Instant Book Platform, and receives and manages reservations through a Connectivity Partner.

“Instant Book” means TripAdvisor’s services and products through TripAdvisor site(s) and/or applications related to the provision of Customer’s travel reservation and payment information to Partner in order to facilitate the fulfillment of the related travel reservations with the Partner selected by Customer, whether such services and products are called “Instant Book” or any other name(s).

“Instant Book Platform” means the web-based reservation platform and tool (through its underlying software), offered through (i) applications (including mobile applications via iOS and Android platforms), (ii) TripAdvisor’s site(s) (www.tripadvisor.com and other top-level domains), and/or (iii) the sites of TripAdvisor’s affiliates and distribution partners whereby users may enter reservation queries, review results, and select travel accommodations and reservations provided by Partners.

“Instant Book Service” has the meaning assigned to it in Section 3.

“Marks” has the meaning assigned to it in Section 7(b).

“Management Center” means Hotel Partner’s dedicate page located at: www.tripadvisor.com/Owners and related domains, for the purpose of managing Hotel Partner’s TripAdvisor listing.

“Materials” has the meaning assigned to it in Section 7(b).

“Network Rules” has the meaning assigned to it in Section 3(e).

“Partner” means collectively, the Connectivity Partner and Hotel Partner.

“Personally Identifiable Information” or “PII” means information that can be used alone or with other information to identify, contact, or locate users of TripAdvisor’s site(s) and/or applications.

“Policies” has the meaning assigned to it in Section 7(e).

“Qualified Rate” is a rate that is closely comparable with other bidding channel partners on a per search basis.

“Records” has the meaning assigned to it in Section 11.

“Supply” means travel accommodations and reservations made available for stays of one or more nights.

“Supply Listings” means Supply available for reservations as advertised on the Instant Book Platform.

“Supply Information” has the meaning assigned to it in Section 7.

“Terms and Conditions” has the meaning assigned to it in Section 2.

“TripAdvisor” means collectively, TripAdvisor LLC, a Delaware limited liability company (together with its subsidiaries TripAdvisor Ltd and TripAdvisor Singapore Pvt Ltd).

“TripAdvisor Sites” means TripAdvisor owned and branded websites, partner and white label websites, applications, and emails that are related to TripAdvisor and its affiliates, as defined at www.tripadvisor.com/pages/about_us.html.

b.   Other Definitional Provisions.

i.   Each term defined in these Terms and Conditions has its defined meaning when used in an Exhibit.

ii.   References to “Sections” are to Sections of these Terms and Conditions, and references to Exhibits are to Exhibits to the to this Agreement, unless otherwise specifically provided.

2. Instant Book Partner Agreement

The Instant Book Partner Agreement between TripAdvisor and Hotel Partner (the “Agreement”) consists of the Terms and Conditions stated herein (these “Terms and Conditions”), and all Exhibits to which the parties mutually agree, as each may be amended from time to time.

3. Description of Service; Party Obligations

TripAdvisor’s Instant Book Service will consist primarily of TripAdvisor providing marketing and technology services (the “Instant Book Service”) that will facilitate the transmission of reservation information of Supply through the Instant Book Platform to Connectivity Partner for reservation processing and support and to Hotel Partners for fulfillment and customer service.

a.   Display of Partner Information

i.   Display, sorting, and inclusion of content in the Supply Listings and Materials is at the sole discretion of TripAdvisor. TripAdvisor reserves the right to update, modify, change, or redesign Supply Listings, Materials and/or the display of Supply Information within the Instant Book Platform at any time, without notice.

ii.   Information in Supply Listings may include but is not limited to Hotel Partner logo(s); descriptions of Supply; total price of the Customer’s reservation request (availability search) as determined by Supply; reservation terms and conditions; Hotel Partner contact and support information; confirmation messages on reservation pages; or any other Partner or non-partner information that may be relevant to the Customer and required by applicable law.

iii.   Partners are responsible for the validity of all Customer reservations processed via the Instant Book Platform and are solely liable for refunds or chargebacks related to Customer payments to Partner for completed reservations that Partner did not have availability or right to reserve, sell, market or otherwise display to potential Customers.

b.   Customer Data and Communications

i.   TripAdvisor will capture Customer Information necessary to complete a reservation facilitated through the Instant Book Platform. TripAdvisor will share the relevant Customer Information with Connectivity Partner necessary to complete the Customer’s reservation.

ii.  Partners shall be responsible for providing customer service, support, and fulfillment for Customers with respect to reservations processed through the Instant Book Platform consistent with Section 3 of the Terms and Conditions. Partners agree to comply with Hotel Partner’s Customer Care Policy as provided to TripAdvisor and displayed on Instant Book. Partners will be solely responsible for any liability to Customer to comply with Hotel Partner’s posted Customer Care Policy. Connectivity Partner will confirm with the Customer that the reservation was successfully completed, and communicate to the Customer that Hotel Partner will be solely responsible for reservation fulfillment, except as otherwise agreed upon between the parties. Partners are solely responsible for any inquiries from the Customer regarding the processing of the reservation completed through the Instant Book Platform.

iii. TripAdvisor shall have the right to communicate with a Customer or potential Customer pursuant to TripAdvisor’s privacy policy and terms of use.

c.   Services

i.   For integration with Instant Book, Hotel Partner must maintain an active relationship with a Connectivity Partner certified to provide Instant Book Services with TripAdvisor. Such Connectivity Partner will develop and maintain API feeds to provide TripAdvisor with Supply availability and reservation confirmation data, as well as, when available, reservation modifications and cancellation data (“Feeds”). All such data for placement on the Instant Book Platform are governed by these Terms and Conditions and must be submitted through valid Feeds (the “Feed Data”), as provided by the Connectivity Partner. TripAdvisor reserves the right, without liability, to modify, reject, remove, and/or cancel any Feed that contains content or links that do not meet TripAdvisor’s specifications, at TripAdvisor’s sole discretion.

ii.   Partner agrees to provide customer service for reservations originating from Instant Book in accordance with the level of customer service it provides to other similar providers and to customers originating on Partner’s own platforms, and not to disparage TripAdvisor or its products or services to Customers.

d.   TripAdvisor’s Service Obligation. TripAdvisor’s sole obligation shall be to transmit to the specified Connectivity Partner reservation and payment information from Customers. TripAdvisor shall have no obligation to verify Customer’s payment information upon collecting or transmitting such information through Instant Book.

e.   Partner’s Service Obligations. Upon receiving reservation and payment information from TripAdvisor, Partners shall (1) process Customer payment information in compliance with the rules, regulations, bylaws and other guidance of the applicable payment network (“Network Rules”), (2) fulfill reservations booked by Customers, and (3) be solely responsible for both (i) customer service for Customers regarding reservations, rescheduling, cancellation, and all other customer support issues after Customers have booked reservations with Partner, and (ii) payment and payment processing concerns, including, but not limited to, transaction authorizations, cardholder inquiries, errors, receipts, refunds and chargebacks.

4. Commission and Payments

a.   Hotel Partner shall have the opportunity to choose from one of the Commission Rates displayed through the Instant Book Platform, which will affect the likelihood of impressions on the TripAdvisor Site. TripAdvisor will use commercially reasonable efforts to provide the impression rate associated with the selected Commission Rate, as presented in the sign up process (or subsequently in the Management Center); provided that Hotel Partner (i) displays Qualified Rates, (ii) maintains a comparatively low cancellation rate, and (iii) maintains a higher-than-average Conversion Rate. TripAdvisor shall make determinations regarding (i) – (iii) above in its sole discretion. Notwithstanding the foregoing, such impression rates may decrease as a result of the quality of Partner’s connectivity, Materials or Supply Information, including, but not limited to, poor API connectivity, substantially higher than average room rates or cancellation rates, lack of availability, or substantially lower than average conversion rates.

b.   Commission Rates will be valid for one (1) year from the date Hotel Partner provides Supply Listings to TripAdvisor for Instant Book, after which TripAdvisor may, in its sole discretion, modify the Commission Rates upon notice to Hotel Partner.

c.   The Commission for each reservation paid to TripAdvisor will be calculated as follows: Commission Rate applicable to the reservation multiplied by the Total Base Rate for Customer’s entire Stay.

d.   The Commission on a reservation shall be payable to TripAdvisor based upon the Total Base Rate of the Customer Stay as determined by TripAdvisor at the time of billing.

5. Data Exchange and Data Auditing

a.   In the event that Hotel Partner’s cancellation rate exceeds their average cancellation rate by more than ten percent (10%), TripAdvisor in its sole discretion may (i) conduct an audit of Hotel Partner’s cancellations, (ii) no longer accept any modifications or cancellations to reservations made through the Instant Book Platform, or (iii) terminate this Agreement.

b.   Once Partner is active on the Instant Book Platform, Partner agrees to provide TripAdvisor with data from TripAdvisor products on a daily basis, in a predetermined TripAdvisor template and delivery process that includes, but not limited to:

i.   Modified reservations, which includes but is not limited to modification in dates of reservation for start date, end date, or both; modification in class of service, room, or other change in category of reservation

ii.   Cancellation of service including non-receipt of service because of both Customer-initiated cancellation and Hotel Partner non-fulfillment. Customer no-shows from a reservation shall be included in the outstanding accounts receivable unless Partner confirms as cancelled by sending a cancellation note to TripAdvisor for that reservation.

c.   All Customer reservation data provided to TripAdvisor must be linked to a unique reservation identification number or code that identifies the original reservation booked through the Instant Book Platform.

d.   Partner shall provide data on Customer Stays originating from reservations facilitated through the Instant Book Platform until all reservations initiated through the Instant Book Platform have been completed or confirmed as cancelled, whichever occurs first.

e.   TripAdvisor may accept notification of cancellation of bookings from Customers, Hotel Partner and Connectivity Partner, and will accept notification of modification of bookings from Hotel Partner and Connectivity Partner.

6. Scope of Agreement

These Terms and Conditions govern the use of the Instant Book Service and any transactions between the parties related to the Instant Book Service. Except for these Terms and Conditions, no other conditions, provisions, or terms of any sort appearing in any writings or other communications will be binding on TripAdvisor, whether in conflict with or in addition to these Terms and Conditions. Partner will use TripAdvisor’s Instant Book Service in accordance with applicable law and in a manner which does not interfere with, disturb, or disrupt other network users, services, or equipment, as determined by TripAdvisor in its sole discretion.

7. Partner Information, Marks and Materials

Partner shall provide TripAdvisor with Partner’s appropriate trademark and/or copyright designations, terms and conditions, cancellation policies, rules, disclosures, regulations, rates, prices, taxes, tax recovery charges, services fees and other charges and fees for all Supply Listings, without revision, deletion or change of any sort whatsoever, except as may be required under Section 7(e) (“Supply Information”).

a.   License to Use Feed Data. Hotel Partner hereby grants TripAdvisor a royalty-free license to display and modify the Feed Data, including but not limited to rate, room, property, availability data and Supply Information in connection with the Instant Book Service and other forms of online advertising for Hotel Partners on the TripAdvisor Sites. Furthermore, any failure by TripAdvisor to publish any requested Feed Data does not constitute a breach of contract or otherwise entitle Partner to any legal remedy. TripAdvisor may share reporting data regarding advertising effectiveness on the TripAdvisor Sites with its partners.

b.   License to Use Marks and Materials.Partner hereby grants TripAdvisor a non-exclusive, royalty-free license to: (1) use, distribute, reproduce, perform, and display Partner’s trade names, trademarks, service marks, logos, and other similar indicia of identity or source (collectively, “Marks”); and (2) use, distribute, reproduce, perform, display, modify, adapt, translate and create derivative works of all images, video, text and other copyrighted or copyrightable materials that either: (i) Partner provides to TripAdvisor; or (ii) TripAdvisor obtains from Partner website(s) and applications (collectively “Materials”) for use in connection with the Instant Book Service, to improve current room and property details, and other forms of online advertising for Hotel Partners on TripAdvisor owned and branded websites, affiliate, partner and white label websites, applications, and emails that are related to TripAdvisor, as defined at http://www.tripadvisor.com/pages/about_us.html. For the avoidance of doubt, Partner hereby authorizes TripAdvisor to access the Partner website(s) and applications at any time for the purposes of sourcing Materials.

c.   Partner Content Indemnification.Partner shall be solely responsible for the content and accuracy of the Supply Information, Marks, Materials and other data provided or made available to TripAdvisor, and shall indemnify TripAdvisor for all loss, costs, and damages in connection with any claims of infringement of any third party rights, any claims arising from the Feed, Materials and/or a breach of any of Partner’s representations and warranties given in this Agreement (including but not limited to claims of unfair or deceptive acts and practices, and consumer protection claims).

d.   Partner Representations and Warranties.Partner represents and warrants to TripAdvisor that at all times, (i) it is fully authorized to publish the entire contents and subject matter of the Feed and all Supply Information, Marks, and Materials (including, without limitation, all text, graphics, content, URLs, and Internet sites to which URLs are linked); (ii) all such materials and Internet sites comply with all applicable laws and regulations (including, but not limited to, compliance with anti-bribery, anti-corruption, embargo and other prohibited transaction regulations) and do not violate the rights (including, but not limited to, intellectual property rights) of any third party; and (iii) each such Internet site is controlled and operated by Connectivity Partner, Hotel Partner, or either party’s independent contractors, is functional and accessible at all times, and is suitable in all respects to be linked to from the applicable site containing the Feed.

e.   Compliance with TripAdvisor’s Policies.Without limiting Partner’s obligations herein, it is the Partner’s obligation to submit the Feed and other Supply Information in accordance with TripAdvisor’s then existing criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with TripAdvisor’s public image, TripAdvisor community standards, other editorial or advertising policies, and material due dates) (collectively “Policies”). TripAdvisor reserves the right, without liability, to modify, reject, remove and/or cancel any Feed or Supply Listing that contain content or links that do not meet TripAdvisor’s specifications, at TripAdvisor’s sole discretion. Notwithstanding any of the foregoing in this subsection (e), Partner remains responsible for the content of its Supply Information.

f.   Publicity Rights.Partner hereby grants TripAdvisor permission to publicize the fact that it is an Instant Book partner of TripAdvisor in a press release. However, Partner shall not use, display or modify TripAdvisor’s trademarks in any manner without the prior written consent of TripAdvisor.

g.   Reservation of Rights.Each party reserves all rights not expressly granted herein. As between the parties, TripAdvisor is the owner of and reserves all right, title, and interest in and to the Instant Book Platform and the Instant Book Service, TripAdvisor owned, operated, or branded websites and applications, and related intellectual property. Partner is the owner of and reserves all right, title, and interest in and to its Feed, Marks, and Materials.

8. Confidentiality

a.   Confidential Information. The parties agree that the recipient of any confidential or proprietary information of the other party provided or received hereunder will use such confidential information solely for the purposes for which it is provided by the other party; will not disclose such confidential information to any third party; and will protect such confidential information from unauthorized use and disclosure; provided, however, that TripAdvisor may share the confidential or proprietary information that it receives hereunder with its Affiliates. The foregoing obligations will not apply to any (i) information that becomes generally publicly available through no fault of the recipient, (ii) information that the recipient obtains from a third party (other than in connection with Instant Book); (iii) information that is independently developed or acquired by the recipient; (iv) disclosure with the prior written consent of the disclosing party; or (v) disclosures which are required by applicable law. Notwithstanding the foregoing, the recipient may disclose such confidential information if required by any judicial or governmental request, requirement or order; provided that the recipient will take reasonable steps to give the disclosing party sufficient prior notice in order to contest such request, requirement or order.

b.   Customer Information. Partner will acquire information about Customers, including, without limitation, their names, addresses, other contact information, and payment information (“Customer Information”). Partner will use such Customer Information solely to process and manage reservations and shall maintain such Customer Information in strict confidence in accordance with clause 8(a) above, Section 9 below, and any other security or data protection policies furnished by TripAdvisor from time to time. TripAdvisor owns Customer Information collected by TripAdvisor. Notwithstanding the foregoing, Partner may use Customer Information which does not contain any personally identifiable information (“PII”) for Hotel Partner’s customer relationship management campaigns provided that Partner has obtained all necessary consents from Customer to use such Customer Information.

9. Privacy and Data Security

a.   Use and Protection of Personally Identifiable Information.Partner shall (i) comply with the Instant Book Data Sharing Exhibit (a current version of which can be found at [www.tripadvisor.com/business/instant-book-data-sharing-exhibit]); and (ii) have a privacy policy in place governing Partner’s use of end users’ PII that meets or exceeds any applicable laws, rules and regulations governing the use of such information. Both parties shall ensure that any collection, use and disclosure of information obtained pursuant to the Agreement complies with all applicable laws, regulations and privacy policies, including all of the requirements of the CAN-SPAM Act. Both parties agree not to send any unsolicited, commercial email or other online communication (e.g., “spam”) through to users of the Instant Book Platform or other services available through their sites and shall comply with all applicable TripAdvisor policies regarding bulk mail. For the purposes of any email or advertising placements for Partner, Partner designates TripAdvisor as the senders for compliance with the CAN-SPAM Act. This section shall survive the completion, expiration, termination or cancellation of the Agreement for a period of five (5) years.

b.   Payment Card Industry Data Security Standard (“PCI DSS”) Compliance.

i.   Partner represents and warrants that its payment processing practices comply with PCI DSS (v3.0 or successor version) requirements during the Term. During the Term, each party agrees to maintain security procedures to protect Customer cardholder data in compliance with PCI DSS. In addition, each party will insure the security and integrity of the handling, access, storage, processing, and transmission of such data and will abide by applicable U.S., Canadian, and European Union laws and regulations as may be enacted, adopted or determined from time to time regarding the confidentiality, use and disclosure of credit card information.

ii.  Each party agrees to notify the other party within thirty (30) days if the party determines that it is not PCI-compliant, or is notified by a Qualified Security Assessor (QSA) that the party is not PCI-compliant.

iii. Each party shall comply with all applicable laws that require the notification of individuals in the event of unauthorized release of cardholder data. In the event of a breach of any of a party’s data security obligations herein or other event requiring notification under applicable law, the party agrees to assume responsibility for informing all such individuals in accordance with applicable law.

iv.  Each party agrees to notify the other party’s authorized representative as soon as reasonably possible in the event of unauthorized release of cardholder data, once the party has determined that a breach has occurred.

v.   Each party shall use best efforts to immediately remedy any security breach and prevent any further security breach at such party’s expense in accordance with applicable privacy rights, laws, regulations and standards.

c.   Oversight of PII Protection and PCI Compliance. Upon either party’s request, the other party shall provide evidence that it has established and maintains technical and organizational security measures governing the processing of Customer PII and cardholder data. Each party will promptly correct deficiencies in the technical and organizational security measures identified by the other party.

10. Payment Terms

TripAdvisor will provide Hotel Partner with a statement, on a monthly basis upon completion of the calendar month, for all bookings consumed during the prior month. Hotel Partner shall provide TripAdvisor notice of any cancellation or modification to the bookings in such statement by the 19th day of each month. Depending on the payment method selected by the Hotel Partner (and agreed with TripAdvisor), TripAdvisor shall either (a) charge Hotel Partner for all undisputed bookings on the 20th day of each month (the standard payment method), or (b) give the Hotel Partner net 30 days to pay for all undisputed bookings. TripAdvisor may immediately remove Hotel Partner’s Supply Listings in the event of non-payment by Hotel Partner within the applicable time period. All unpaid amounts will accrue interest at the rate of 1.5 percent per month or the legal maximum rate, whichever is less, until paid in full.

11. Financial Audit Rights

Each party will keep at its office (as specified at the start of the Agreement) full and accurate records of all financial transactions related to Instant Book, in accordance with generally accepted accounting practices (the “Records”). The Records will be open for examination at all reasonable times to the other party, or the other party’s representatives, upon reasonable notice to the party, for the purpose of verifying information related to Partner’s reservations. Each party will be limited to one such examination per year. All Records will be retained by each party for examination for a period of not less than three (3) years following the date of the last reservation transaction under the Agreement.

12. Taxes

Partners shall provide TripAdvisor with the tax rates applicable to Supply Listings as part of the Feed Data and separate from any other rates, and shall promptly and timely update such tax rate information in the event the tax rates change while Supply Listings are active on the Instant Book Platform. Partners shall be responsible for the accuracy of such tax rate information and any changes submitted to TripAdvisor, and for remitting such taxes to the applicable taxing authorities.

13. Term and Termination

a.   Term. The term of the Agreement will begin on the date that Hotel Partner accepts these terms and will continue until the Agreement is terminated. Partner may terminate the display of Supply Listings at any time through its Management Center, and TripAdvisor will endeavor to cease the display of advertising within forty-eight (48) hours of notice of such cancellation. NEITHER TRIPADVISOR NOR ANY OF ITS AFFILIATES WILL HAVE ANY LIABILITY OF ANY NATURE TO PARTNERS OR ITS CUSTOMERS RELATED TO RESERVATIONS FACILITATED THROUGH INSTANT BOOK WITHIN THIS FORTY-EIGHT (48) HOUR PERIOD.

b.   Termination.

i.   Termination Without Cause. Either party may terminate the Agreement with sixty (60) days prior written notice.

ii.  Termination For Cause. If either party is in breach or default under the Agreement, the non-defaulting party may terminate the Agreement by providing written notice to the defaulting party of (i) the nature of the breach or default and (ii) the intent to terminate. The effective date of termination will be thirty (30) days after receipt of the written notice.

iii. Effect of Termination.The expiry or termination of the Agreement shall be without prejudice to any rights and liabilities, which have accrued prior to such expiry, or termination to either of the parties under the Agreement. Clauses 1, 6, 7, 8, 10, 12, 13, 14, 15, and 17 shall survive expiry or termination of the Agreement. 

14. Mutual Representations and Warranties

Each party represents and warrants as follows:

a.   The party has all necessary right, power, and authority and has taken all necessary action to enter into the Agreement and perform the acts required of it under the Agreement;

b.   The execution and performance of the Agreement does not and will not violate any agreement to which it is a party or by which it is otherwise bound, any applicable law, rule, or regulation.

15. Indemnification

a.   Partner agrees to defend, indemnify and hold harmless TripAdvisor and each of TripAdvisor’s agents, subcontractors and Affiliates, and the officers, directors, and employees of any of the foregoing, from, against and in respect of any and all losses, costs, (including reasonable attorney’s fees) expenses, damages, assessments, or judgments (collectively, “Liabilities”), resulting from any claim or allegation (a) arising in connection with Partner’s obligations, representations or warranties under the Agreement, (b) arising from Partner’s misuse of Instant Book, or (c) arising from Customers whose transactions or reservations originated from the Instant Book Platform and were completed and/or fulfilled by Partner, except to the extent that such claims directly resulted from the gross negligence or willful misconduct of TripAdvisor.

b.   TripAdvisor agrees to defend, indemnify and hold harmless Partner and each of Partner’s agents, subcontractors and Affiliates, and the officers, directors, and employees of any of the foregoing, from, against and in respect of any and all Liabilities resulting from any claim or allegation raised in connection with TripAdvisor’s gross negligence or willful misconduct under the Agreement.

16. Disclaimer of Warranty

EXCEPT AS OTHERWISE STATED HEREIN, TRIPADVISOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES AS TO THE TRIPADVISOR SITE(S) OR THE INSTANT BOOK PLATFORM, OR THE FUNCTIONALITY, PERFORMANCE, OR RESPONSE TIMES OF THE TRIPADVISOR SITE(S) OR THE INSTANT BOOK PLATFORM.

17. Limitation of Liability

EXCEPT FOR BREACH OF SECTIONS 7 AND 8 (CONFIDENTIALITY; PRIVACY AND DATA SECURITY) OR CLAIMS RESULTING FROM TRIPADVISOR’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TRIPADVISOR DISCLAIMS AND SHALL NOT BE LIABLE FOR ANY OTHER LOSS, INJURY, COST OR DAMAGE SUFFERED BY PARTNER OR ANY THIRD PARTY AND SHALL IN NO EVENT BE LIABLE FOR CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS. THIS PROVISION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT. IN NO EVENT SHALL TRIPADVISOR OR ANY OF ITS AFFILIATES BE LIABLE TO PARTNERS FOR AN AMOUNT IN EXCESS OF $10,000.

18. Force Majeure

“Force Majeure Event” means any event affecting the performance of any provision of this Agreement arising from or attributable to acts, events, omissions or accidents which are beyond the reasonable control of a party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war). Neither party will be liable for any delay in performing or failure to perform its obligations under this Agreement to the extent that and for so long as the delay or failure results from any Force Majeure Event, provided the same arises without the fault or negligence of such party. Each party will use its reasonable endeavors to minimize the effects of any Force Majeure Event.

19. General Provisions

a.   Governing Law. The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the Commonwealth of Massachusetts, without reference to its choice of law principles to the contrary. Neither party will commence or prosecute any action, suit, proceeding or claim arising out of or related to the Agreement other than in the state or federal courts located in Boston, Massachusetts. Each party hereby irrevocably consents to the jurisdiction and venue of such courts in connection with any such action, suit, proceeding or claim. In any suit, arbitration, mediation or other action to enforce any right or remedy under the Agreement or to interpret any provision of the Agreement, the prevailing party will be entitled to recover its costs, including reasonable attorneys’ fees, including without limitation, costs and fees incurred on appeal or in a bankruptcy or similar action.

b.   Miscellaneous. The waiver of any provision of the Agreement shall not constitute a waiver of any other provision(s) or of the same provision on another occasion. If any provision of the Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Partner and TripAdvisor. Partner may not assign its rights hereunder to any third party unless TripAdvisor expressly consents to such assignment in writing, not to be unreasonably withheld.

c.   Entire Agreement. The Agreement constitutes the entire understanding and Agreement between the parties and supersedes any and all prior understandings and/or Agreements between the parties with respect to the subject matter. No change, amendment or modification of any provision of the Agreement or waiver of any of its terms will be valid unless set forth in writing and mutually agreed to by the parties. Notwithstanding the foregoing, TripAdvisor may amend this Agreement at any time, by giving Customer notification of the amendments in writing or via email. Unless otherwise stated in the notification or unless Customer cancels this Agreement (as permitted by this Agreement or the notification), any amendments shall be automatically effective ten (10) days after they are notified to Customer.

Last Updated: May 2018