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02/23/2020 ~ 02/29/2020

TripShock Suppliers Terms & Conditions

Version Date: November 2019

This Supply Agreement (“Agreement”), dated as of the date of Supplier’s online acceptance of this Agreement (“Effective Date”), is between Emerald Memories, LLC DBA Tripshock (“Tripshock”) and the company specified in the online registration process (“Supplier”), and expressly incorporates the attached terms and conditions. When used in the Agreement, “Tripshock” means, Emerald Memories, LLC DBD Tripshock or any third party that facilitates reservations through the Service. “Service” means the software, databases, products, and other components that make up the service that is marketed by Tripshock to enable users to shop for, book and pay for travel services and destination projects through the internet, a computer, telephone or other booking channels now known or developed in the future.

1. Products.

Supplier hereby agrees to make its travel or destination products, attraction admissions, activities and/or services (its “Products”) available to Tripshock for booking through the Service. Supplier hereby authorizes Tripshock to accept bookings and issue vouchers, voucher/reservation numbers or other confirmation method as specified by Tripshock for the Products (each, a “Voucher”) that Tripshock makes available through the Service. Supplier will: (i) accept Vouchers presented by the customers of Tripshock (each, a “Customer”); and (ii) verify the identity of each Customer presenting a Voucher prior to accepting it. If Supplier cannot provide a Product to a Customer presenting a Voucher, then Supplier will immediately notify Tripshock and, at the Customer’s election, provide Customer with a comparable or better Product at no additional cost, or notify Tripshock of Customer’s desire for a refund. Tripshock may refrain from offering Products through the Service in its sole discretion. Supplier shall: (iii) make available to Tripshock all Products that it makes available through any other third party distributor of its Products (each a “Tripshock Affiliate”); (iv) allow Tripshock to book any available inventory; and (v) offer its Products to Tripshock at rates equal to or less than the rates it offers directly or through any other Distributor for the same or similar products.

2. Supplier Product Information/Rates.

On or before the Effective Date, Supplier shall deliver to Tripshock detailed information about the Products, in the form and manner as requested by Tripshock, which will include, among other things, the Rates for the Products inclusive of Taxes (as defined below), availability limitations and the cancellation policy for each Product. As used herein “Rate” shall mean (a) the rate inclusive of Taxes as provided by Supplier during enrollment; or (b) a promotional lower rate inclusive of Taxes mutually agreed upon by the parties for use in promotional offers such as travel packages. Except as otherwise specified in an approval agreed upon by Supplier during the enrollment process and incorporated herein, Supplier shall ensure that the Rate, exclusive of taxes, shall be at or below the best available retail rate for each Product as set out and agreed upon during the enrollment process. When supplying information to Tripshock, Supplier shall follow the instructions provided by Tripshock. By this reference, the information submitted to Tripshock during the enrollment process, once accepted by Tripshock, is incorporated into, and made a part of, this Agreement. Tripshock reserves the right to charge a booking fee and to offer Product discounts.

3. Customer Service.

Supplier will provide second-tier customer service and support to resolve inquiries or issues escalated to Supplier from Tripshock customer support via email and telephone, and will respond to and resolve such escalations at the same service level provided to Supplier’s best customers and in accordance with industry practice. Supplier will treat all Customers in a nondiscriminatory manner and in the same manner as Supplier treats its other customers. In an effort to ensure complete Customer satisfaction, Tripshock will work in good faith with Supplier to evaluate and resolve each Customer complaint on a case-by-case basis. In the event that Supplier fails to respond to any Customer complaint escalated to Supplier by Tripshock, then Tripshock may, in its sole discretion, refund the amount determined by Tripshock to be appropriate to the customer and may withhold such refund amount from amounts owing to Supplier.

4. Anti-Fraud Cooperation.

It is Supplier’s responsibility to verify the authenticity of all Vouchers and the identity of each Customer. If a party believes a Voucher may be or is fraudulent, or certain data provided by a customer cannot be verified, then the parties will work in good faith to address such fraudulent or potentially fraudulent Voucher. In the event of a fraudulent or potentially fraudulent Voucher, Tripshock may, if possible, cancel such Voucher at any time. If cancellation of a fraudulent or potentially fraudulent Voucher occurs prior to redemption neither Tripshock nor any of its affiliates shall be obligated to pay any cancellation fee or penalty.

5. Term of Agreement.

This Agreement begins on the Effective Date and continues for an initial term of one (1) year, renewing automatically for successive one-year terms thereafter, unless earlier terminated as provided herein. Tripshock may terminate this Agreement at any time without cause upon notice to Supplier. Supplier may terminate this Agreement without cause upon thirty (30) days’ prior written notice to Tripshock. If this Agreement is terminated for any reason, Supplier will honor all outstanding, previously booked Vouchers, and will continue to comply with the terms of this Agreement until the last Voucher has been redeemed.

6. Data Protection.

(a) Ownership of Customer Data. As between the parties, information including but not limited to Customer name and phone number (“Customer Data”) that Tripshock provides to Supplier pursuant to this Agreement, shall be considered proprietary information of Tripshock and all right, title and interest in the Customer Data is owned by Tripshock. During the term of this Agreement and thereafter, Supplier will: (i) use such Customer Data only as necessary to perform its obligations under this Agreement; (ii) maintain and protect such Customer Data in confidence, with reasonable security precautions at least as great as the precautions it takes to protect its own confidential information of similar importance; and (iii) not market to Customers identified in the Customer Data or otherwise use or permit the Customer Data to be used, sold, licensed, leased, transferred, or distributed, in any form or by any means, without the prior written consent of Tripshock. All such Customer databases are and shall remain the sole and exclusive property of Tripshock. The terms of this section shall not prevent Supplier from independently collecting information from a Customer provided that Supplier will not, directly or indirectly, engage in any solicited or unsolicited marketing, promotion or similar communications with any Customer unless Supplier has received consent directly from such Customer.

(b) Tripshock Materials. Supplier is not authorized to scrape or otherwise extract information, data or other materials from the Service including Tripshock’s or its affiliates’ websites (collectively the “Tripshock Materials”). Supplier is not authorized to use in any manner the Tripshock Materials including, without limitation, publicly displaying any Tripshock Materials on Supplier's websites (other than Content (as defined below) as supplied by Supplier to Tripshock).

(c) Survival. This section will survive the termination or expiration of this Agreement.

7. Payment Terms.

(a) Once per month, Tripshock will remit to Supplier a statement of the previous months redeemed Products along with the applicable amount owed to the Supplier which is equal to the Rate minus Tripshock’s commission, for each product sold. Tripshock with remit payment in accordance with the statement via direct deposit into the bank account provided by the Supplier. All payments from Tripshock to Supplier pursuant to this section shall be considered final unless disputed by Supplier in good faith and pursuant to a written notice received by Tripshock within 60 days of Supplier’s receipt of the disputed payment.

(b) Tripshock will only pay Supplier for the number of Vouchers reflected in the Supplier’s invoice, which is generated on Tripshock’s booking database at the end of each month. Supplier will not be entitled to payment for cancellations if Supplier was notified of such cancellation in compliance with the cancellation policy for each Product, if applicable, and provided to Tripshock in accordance with this Agreement. If Supplier cancels a trip for which Tripshock customers are impacted or informs a Tripshock customer that they are entitled to a refund, Supplier must notify Tripshock within 48 hours of the trip’s departure time. If a customer receives a refund for any reason, Supplier is not entitled to payment for the refunded voucher. If Supplier receives payment for a booking that was cancelled by Supplier or for which Supplier informed the customer that they are entitled to a refund, and such refund is issued by Tripshock, Supplier must reimburse Tripshock in an amount equal to refunded amount. Supplier is not entitled to payment for chargebacks that are unable to be resolved by Tripshock.

8. Rate and Availability Changes.

(a) Subject to the requirements set forth in Section 2, Supplier may change the retail rate for any Products under this Agreement by providing written notice to Tripshock, provided however that Tripshock may in its sole discretion discontinue booking such Product(s). The net rate for such Products will remain in effect until Supplier updates the retail rates in accordance with this provision at which time the net rate will be updated. If Supplier has provided an expiration date for a rate and fails to update such rate then the rate provided by the Supplier shall automatically extend after such expiration date.

(b) Supplier will communicate all supply limitations to Tripshock in the form and manner as requested by Tripshock. It is Supplier’s sole responsibility to inform Tripshock when Products will no longer be available for booking by Tripshock at least 48 hours prior to the stop sell date. Supplier shall honor all Vouchers issued by Tripshock within 48 hours of receiving notice that a Product is no longer available.

(c) Supplier acknowledges that Tripshock has no knowledge of (i) Customers’ actual use of the Products, (ii) any cancellation notice that may be given by Customers to Supplier, or whether any such cancellation notice is sufficient under Supplier’s policies or the terms of this Agreement to relieve Customers (and Tripshock) of the charges otherwise due, or (iii) any price adjustment negotiated between Supplier and Customers. Accordingly, Tripshock may rely upon, and accept as accurate for Supplier’s Products: (1) the pricing information provided by Supplier as may be updated per this section; and 2) the reservation information contained in Tripshock’s booking database.

9. Taxes.

Supplier agrees that the amount invoiced by Tripshock includes all sales, use, excise, lodging, rental or other similar taxes or governmental fees (“Taxes”) imposed by any state or local taxing jurisdiction on the Product booked. Supplier agrees to remit any and all such Taxes paid to Supplier by Tripshock or any Customer to the appropriate taxing authorities as required by law. Supplier will inform Tripshock of any changes in the Taxes and/or tax rates applicable to Products. Supplier will, upon Tripshock’s request, provide evidence that it has fulfilled its tax obligation.

10. Insurance.

Supplier represents and warrants that it will maintain (and shall cause each of its agents, independent contractors and subcontractors performing any services hereunder to maintain) at its sole cost and expense insurance to cover any and all of its obligations under this Agreement, which shall include general liability and commercial vehicle insurance when applicable and which will at a minimum meet the specifications required by law based on the type of Products provided by Supplier and the territory where the Products are provided. Supplier agrees to provide updated insurance information to Tripshock on a yearly basis and understands that a failure to maintain updated insurance and to provide proof thereof to Tripshock will result in removal of Supplier’s products.

11. Permission to use Intellectual Property.

(a) In order to enable Tripshock to market and promote the booking of Supplier’s Vouchers as permitted herein, Supplier hereby gives Tripshock a limited, non-exclusive, worldwide, royalty-free right to use and display, copy, reproduce and redistribute Supplier’s trade name, logos, trademarks and copyrights, images from Supplier’s website (including, without limitation, data, text, audio, video, graphics, photographs, artwork and similar materials) (collectively, “Content”) solely in connection with the Service. Tripshock may, in its reasonable discretion, edit, modify and otherwise alter any Content as is necessary or desirable to optimize display of such Content (e.g. to make adjustments to the size, color, brightness, contrast, etc.) and for no other purpose. Additionally, Tripshock may use third parties to reproduce, host or display the Content in support of the Service.

(b) In the event Tripshock desires to use any Content in a manner not permitted by this section, then Tripshock shall obtain Supplier’s prior written permission for any such use.

(c) Supplier agrees that, notwithstanding termination of this Agreement for any reason, the license rights granted to Tripshock in this section will continue for Content used in marketing materials created prior to the termination of the Agreement (e.g., magazines printed on a monthly, quarterly, or bi-annual basis). This section will survive the termination or expiration of this Agreement.

12. Limitation of Warranty and Liability; Indemnity.

Tripshock makes no warranty or representation, and disclaims all implied warranties, obligations and liabilities arising by law or otherwise, regarding the Service and/or any revenue or profit payable to Supplier from bookings through Tripshock of the Vouchers. SUPPLIER RELEASES Tripshock FROM ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF Tripshock HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Supplier will hold harmless, indemnify and defend Tripshock, and its respective employees, directors, officers and agents (the “Indemnified Parties”) against any and all actions, claims, suits, demands, judgments, losses, costs, expenses and/or damages, including attorneys’ fees, arising out of or resulting from (a) any Product, (b) use of the intellectual property described in Section 11, (c) a breach by Supplier of this Agreement or any representation or warranty, or (d) the provision of inaccurate information to Tripshock by Supplier. This section will survive the termination or expiration of this Agreement.

13. Changes to Terms.

Tripshock reserves the right to change or modify this Agreement, or any policy or guideline related to the Service, at any time in its sole discretion. If Tripshock changes or modifies the terms of this Agreement, Tripshock will provide the modified terms of this Agreement to Supplier in writing which may be via email. Any changes or modification will be effective thirty (30) days after the notice of the revisions. Supplier’s continued provision of Products to Tripshock following the posting of changes or modifications shall confirm Supplier’s acceptance of such changes or modifications.

14. Affiliate Indemnification.

Indemnification. Tripshock Affiliates earn a commission for sales they originate on tripshock.com via their affiliate booking portal or through affiliate links. For Products booked through Tripshock Affiliates the following is added to the definition of Indemnified Parties: Tripshock Affiliates and their respective employees, directors, officers and agents. Solely for the purposes of enforcing the indemnification obligations set forth in this Agreement, Tripshock Affiliates, their owners and/or managers and their respective employees, directors, officers and agents shall be deemed to be third party beneficiaries of this Agreement. This section shall survive termination of the Agreement.

15. General Provisions.

(a) This Agreement will be interpreted, construed and enforced in all respects with the laws of Florida and each party consents to the exclusive jurisdiction and venue of the courts in Walton County, Florida for all disputes relating to this Agreement. The prevailing party in any such dispute may recover its reasonable attorneys’ fees, costs and expenses from the other party.

(b) This Agreement does not create a legal partnership, employment or agency relationship between the parties. Supplier may not assign this Agreement. Tripshock may assign this Agreement to any of its corporate affiliate companies. EACH PARTY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW TRIAL BY JURY OF ALL CLAIMS RELATING TO THIS AGREEMENT.

(c) Supplier represents and warrants that (i) it is authorized to enter into this Agreement; (ii) all information provided by Supplier to Tripshock is true and correct; (iii) it shall obtain and maintain throughout the Term all required or applicable permits, approvals and licenses; (iv) the Products are in compliance with all applicable disability laws including if the Products are available in the US, the ADA guidelines; (v) it shall comply with all laws, rules, regulations and ordinances applicable to its business and operations including, but not limited to, those relating to data protection; and (vi) Tripshock’s use of the Content herein shall not violate or infringe on the rights of any third party. Supplier will advise Tripshock immediately if Supplier’s facilities, equipment, Products or services change.

(d) Supplier hereby agrees that it shall not at any time, directly or indirectly orally, in writing or through any medium including, but not limited to, the press or other media, computer networks, bulletin boards or blogs, or any other form of communication, tortiously interfere with Tripshock’s contracts or relationships or slander, libel, defame or otherwise injure Tripshock, its products and services (“Defamatory Activity”). Upon the occurrence or allegation of any Defamatory Activity, Tripshock may immediately terminate this Agreement by providing notice thereof to Supplier and seek all other remedies at law or otherwise.

(e) This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes and expressly terminates any and all prior agreements and understandings, whether written or oral. Nothing in this Agreement shall limit liability for any representations made fraudulently. Except as otherwise set forth in this Agreement, no term of this Agreement may be waived, modified or amended without a writing executed by both parties. No failure or delay by a party in exercising its rights or remedies shall operate as a waiver unless made by written notice. If any term of this Agreement is deemed invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement will continue in effect.

(f) This Agreement may be terminated immediately upon written notice by either party if the other party ceases to do business, becomes insolvent, or is subject to bankruptcy or insolvency proceedings, whether actual or reasonably believed to be imminent. If reasonable grounds for insecurity arise with respect to either party’s performance of, or breach of, this Agreement, the other party may in writing demand adequate assurance of due performance. Until such party receives sufficient assurance in writing that such issue has been addressed or such breach has been cured, it may suspend its performance of this Agreement. If such party does not receive such written assurance within five (5) days after its request therefore, or within such other reasonable period of time it may designate under the then existing circumstances, the failure by the party to furnish such assurance will entitle the other party to immediately terminate this Agreement.

(g) All notices hereunder must be in writing and sent by facsimile or a recognized overnight air courier as follows: If to Supplier, at the address specified in the online registration process; if to Tripshock, to Emerald Memories Inc., PO BOX 2309, Santa Rosa Beach, FL 32459, Attn: Supplier Notices, with a copy of legal notices to: Attn: Greg Fisher, Fax: 850-424-3615.

(h) Tripshock reserves the right to recoupment and offset for any amounts owed to Tripshock by Supplier under this Agreement or any other agreement between Supplier and Tripshock.

(i) No provision of this Agreement shall be enforceable by any third party or otherwise except as specified in Section 14.

(j) Each party will retain in confidence all information transmitted to such party by the other party, including, without limitation, Customer Data. All terms and conditions of this Agreement will be considered confidential and will not be disclosed (except to either party’s attorneys or accountants on a need-to-know basis) without the prior written consent of the other party. This provision and its confidentiality obligations will survive the termination of this Agreement and a breach of such provision will entitle the other party to immediately terminate this Agreement and seek all other remedies available to it.

(k) If there is a catastrophic force majeure event (including without limitation, the occurrence or threatened occurrence of a natural disaster, an environmental disaster, whether natural or manmade, war, civil unrest, labor disputes, or a terrorist attack) in or around the location of Supplier’s Products, Supplier shall cooperate with Tripshock in processing refunds to Customers when reasonably requested. The foregoing refund requirement supersedes any Supplier refund policy.

(l) Any sections of this Agreement which are expressed to survive termination or expiration of this Agreement, and any sections of this Agreement necessary for the interpretation or enforcement of this Agreement shall survive termination of this Agreement.