TS Tours, LLC (aka Tripshock) Supplier Agreement

TS Tours, LLC (aka Tripshock) Supplier Agreement
Version Date: January 2024

As of January 1, 2024, TS Tours, LLC has entered into an agreement with Emerald Memories, Inc.(DBA Tripshock) for the use of its proprietary technology, the Tripshock Trademark and DBA, and an assignment of Customers and Supplier Accounts (“Licensing Agreement”).

Emerald Memories, Inc.’s prior Terms and Conditions can be found here.

Any Supplier Account that does not terminate their partnership within 30 days of their receipt of notice of these Terms and Conditions will be considered to have accepted this Agreement, such notice was sent via email to all active accounts on January 3, 2024. The term of the Agreement for new Supplier Accounts shall begin on the date of their acceptance during onboarding. Nothing in this Agreement prevents Supplier from terminating the Agreement upon 30 days’ notice as set forth herein.

This Supplier Agreement (“Agreement”) is by and between TS Tours, LLC (“TS Tours”) and you (“Supplier”), referred to collectively as the Parties. Supplier accepts this Agreement and all terms, conditions, and attachments. If Supplier is entering into this Agreement on behalf of a company or other legal entity, Supplier represents that it has the authority to enter into this Agreement and bind such entity, in which case Supplier shall refer to such entity. When used in the Agreement, “TS Tours” means, TS Tours, which does business as Tripshock pursuant to a licensing Agreement with Emerald Memories, Inc, or any Distributor that facilitates reservations through the Service.

A. Term, Termination, and Modification

This Agreement is effective as outlined above, and continues for an initial term of one (1) year, renewing automatically for successive one-year terms thereafter, unless earlier terminated as set out herein. Any capitalized terms in this Agreement will be defined herein, or in Attachment A, which is incorporated into this Agreement.

Supplier may terminate this Agreement without cause upon thirty (30) days prior written notice to TS Tours. 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. TS Tours may terminate this Agreement and disable Products at any time without cause upon notice to Supplier.

TS Tours reserves the right to change or modify its Terms and Conditions or any policy or guideline related to the Service, at any time in its sole discretion. If TS Tours changes or modifies the terms of this Agreement, TS Tours will provide notice of the modified terms to Supplier in writing, such notice may be provided via email. Any changes or modifications will be effective thirty (30) days after the notice of the revisions.

B. Attachments

The following attachments (“Attachments”) are incorporated by reference and made part of this Agreement:

Attachment 1: Definition of Terms

Attachment 2: Payment Terms

The Parties may mutually agree to and enter into additional written attachments, including but not limited to rate and wholesale agreements, and such Attachments will be incorporated into this Agreement by reference when executed by a duly authorized representative of the Parties.

Terms and Conditions

1. Products and Availability

(a ) On or before the Effective Date, Supplier shall deliver to TS Tours detailed information about the Products, in the form and manner as requested by TS Tours, which includes but is not limited to Net Rates, Retail Rates, availability limitations, and the cancellation policies for each Product. By this reference, any Product information, including Retail Rates and Net Rates, submitted to TS during the Onboarding Process or throughout the term of the Agreement, once accepted by TS Tours, are incorporated into and made a part of this Agreement. TS Tours reserves the right to charge a Service Fee to the Customer and to offer Product discounts, such discounts will be taken from TS Tours’ Marketing Fee unless otherwise agreed upon.

(b) Supplier hereby agrees to make its Products available to TS Tours for booking through the Service. Supplier hereby authorizes TS Tours to accept bookings and issue Vouchers for the Products that Supplier authorizes TS Tours to sell via the Service as its authorized commercial agent as set forth in Section 4. Supplier will: (i) accept Vouchers presented by the 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 TS Tours and, at the Customer’s election, provide Customer with a comparable or better Product at no additional cost, or notify TS Tours of Customer’s desire for a refund. TS Tours may refrain from offering Products through the Service in its sole discretion. Supplier shall: (iii) make available to TS Tours all Products that it makes available through any other servicer; (iv) allow TS Tours to book any available inventory; and (v) offer its Products to TS Tours at rates equal to or less than the rates it offers directly or through any other channels for the same or similar products.

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

(d) Supplier acknowledges that TS Tours 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 TS Tours) of the charges otherwise due, or (iii) any price adjustment negotiated between Supplier and Customers. Accordingly, TS Tours may rely upon, and accept as accurate for the Products: (1) the Retail Rate and Net Rates provided by Supplier as may be updated per this section; and 2) the reservation information contained in TS Tours booking database.

2. Supplier Licenses and Registrations

Supplier agrees that it holds any and all licenses, permits, and registrations required by law to offer its Products to the public.

3. Rates and Fees

(a) Supplier provides the Retail Rate for which Products will be sold by TS Tours to Customers. The Retail Rate shall include all applicable Taxes, expenses, and fees, including but not limited to marina fees. TS Tours will not collect any additional fees or expenses separate from the Retail Rate on Supplier’s behalf. The Supplier must disclose any additional charges, including but not limited to fuel charges, that Customer will be required to pay directly to Supplier on the day the Products are provided. Supplier may not collect from the Customer any amounts not disclosed in the Product listing, except that nothing in this paragraph shall prevent Supplier from offering additional optional add-ons or offers. Additionally, nothing in this section shall prevent TS Tours from collecting a Service Fee in addition to the Retail Rate.

(b) Subject to the requirements set forth in this Agreement, Supplier may change the Retail Rate for any Products under this Agreement by providing written notice to TS Tours, provided however that TS Tours may in its sole discretion discontinue booking such Product(s). The Retail Rate provided by the Supplier will be used by TS Tours until such time as the Supplier has provided an updated Retail Rate.

4. Agency Appointment, Payment Collection

TS Tours, operates as Supplier’s Commercial Sales Agent, in a general or limited capacity, as required by law, and as it relates to the payment processing services applicable to the sale of Products through the Service and/or as it relates to the Service, including the marketing and sales of Products under this Agreement. Supplier, therefore, appoints TS Tours and its Distributors to act and operate as Supplier’s commercial sales agent, either general or limited, with respect to the marketing and sale of Products via the Service for the purpose of directly accepting payment of the Product’s Retail Rates from the Customer on behalf of the Supplier and to make onward payment of those sums to TS Tours. Supplier agrees that receipt of payment for the sum due from a Customer for the Retail Rate associated with the Products shall extinguish Customer’s payment obligation to Supplier. Supplier agrees that payment made to TS Tours by a Customer via the Service for the Retail Rate of the Products shall be considered the same as payment made directly to the Supplier, and Supplier will provide Products to the Customer in the agreed upon manner as if Supplier had received the funds directly from the Customer. TS Tours will bear the credit card and banking fees associated with the receipt of payment from the Customer and TS Tours may collect a Service Fee, separate from the Retail Rate collected on the Supplier’s behalf, to cover these expenses, as well as fraud prevention, the defense of chargebacks, and other expenses related to the processing and service of the transactions via the Service.

5. Marketing Fees

For each Product sold by TS Tours on behalf of the Supplier, TS Tours will be paid a Marketing Fee, which will be equal to an agreed-upon percentage of the Retail Rate collected from the Customer on Supplier’s behalf. The Retail Rate minus the TS Marketing fee is the agreed upon Net Rate owed by TS Tours to the Supplier for the Product. This Marketing Fee will cover the costs associated with the Service including, but not limited to, TS Tours marketing and promotion of the Products, the promotion, maintenance, and improvement of the technology, websites, and channels utilized for the sale of the Products, the services of the TS Tours team provided to the Supplier for the maintenance of the Supplier’s Account and Products, as well as the travel services provided to the Customer.

6. Taxes

Supplier is solely responsible for determining its obligations to report, collect, remit, or include in its Net Rate any applicable taxes and for remitting any applicable taxes to the appropriate government entities. Upon request from TS Tours, Supplier will provide, within ten (10) business days of receiving its written request, which may be sent via email, documentation that Supplier has fulfilled its obligation to remit taxes to the applicable authorities in its jurisdiction.

7. Permission to Use Intellectual Property

(a) In order to enable TS Tours to market and promote the booking of Products as permitted herein, Supplier hereby gives TS Tours 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. TS Tours 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, TS Tours may use third parties to reproduce, host, or display the Content in support of the Service.

(b) In the event TS Tours desires to use any Content in a manner not permitted by this section, then TS Tours 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 TS Tours 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.

8. Customer Service

Supplier will provide second-tier customer service and support to resolve inquiries or issues escalated to Supplier from TS Tours customer support via email, telephone, or live chat, 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, TS Tours 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 TS Tours, then TS Tours may, in its sole discretion, refund the amount determined by TS Tours to be appropriate to the Customer and may withhold such refund amount from amounts owing to Supplier.

9. 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 industry standards and 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 TS Tours on a yearly basis and understands that a failure to maintain updated insurance and to provide proof thereof to TS Tours will result in removal of Products.

10. 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, TS Tours may, if possible, cancel such Voucher at any time. If cancellation of a fraudulent or potentially fraudulent Voucher occurs prior to redemption neither TS Tours nor any of its Distributors shall be obligated to pay any cancellation fee or penalty.

11. Data Protection

(a) As between the parties, Customer Data that TS Tours provides to Supplier pursuant to this Agreement, shall be considered proprietary information of TS Tours and all right, title and interest in the Customer Data is owned by TS Tours. 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 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 TS Tours. All such Customer Data are and shall remain the sole and exclusive property of TS Tours. 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) Supplier is not authorized to scrape or otherwise extract information, data, or other materials from the Service including TS Tours or its Distributors websites (collectively the “TS Tours Materials”). Supplier is not authorized to use in any manner the TS Tours Materials including, without limitation, publicly displaying any TS Tours Materials on Supplier’s websites (other than Content (as defined below) as supplied by Supplier to TS Tours).

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

12. Limitation of Warranty and Liability; Indemnity

TS Tours 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 TS Tours of the Vouchers. SUPPLIER RELEASES TS TOURS FROM ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF TS TOURS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Supplier will hold harmless, indemnify and defend TS Tours, 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 herein, a breach by Supplier of this Agreement or any representation or warranty, or (d) the provision of inaccurate information to TS Tours by Supplier. This section will survive the termination or expiration of this Agreement.

13. Distributor Indemnification

For Products booked via referrals from Distributors, the following is added to the definition of Indemnified Parties: Distributors and their respective employees, directors, officers, and agents. Solely for the purposes of enforcing the indemnification obligations set forth in this Agreement, Distributors, 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.

14. 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 or employment relationship between the parties. Supplier may not assign this Agreement. TS Tours 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 TS Tours 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) TS Tours’ use of the Content herein shall not violate or infringe on the rights of any third party. Supplier will advise TS Tours 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 TS Tours’s contracts or relationships or slander, libel, defame or otherwise injure TS Tours, its products and services (“Defamatory Activity”). Upon the occurrence or allegation of any Defamatory Activity, TS Tours 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 TS Tours LLC, 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) TS Tours reserves the right to recoupment and offset for any amounts owed to TS Tours by Supplier under this Agreement or any other agreement between Supplier and TS Tours.

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

(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 Products, Supplier shall cooperate with TS Tours 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.

Attachment One: Definitions

In addition to the terms defined throughout the contract, the following definition shall also apply:

Distributor: Includes TS Tours affiliate partners or any third-party website that refers Customers to book Products through TS Tours.

Customers: Individuals who book Products via the Service.

Customer Data: Information collected from each customer who books via the Service.

Marketing Fee: The commission paid to TS Tours to support the marketing of Products and other activities related to the Service, the management, maintenance, and optimization of Supplier Accounts and Products, business development efforts to expand the TS ToursDistributor network, and other activities related to the promotion of the Supplier’s Products.

Net Rate: The agreed-upon rate owed to the Supplier which is equal to the Retail Rate minus the Marketing Fee.

Products: Any activities offered by the Supplier through the Service.

Retail Rate: The suggested retail rate provided by the Supplier for their Products which TS Tours collects from the Customer on the Suppliers behalf as its agent.

Service: Means the software, databases, products, and other components that make up the service marketed by Tripshock to enable Customers 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.

Service Fee: The fee collected by TS Tours to cover costs associated with processing the Customer’s transaction including, but not limited to, credit card and other processing fees charged to TS Tours by third-party services, as well as efforts to prevent fraudulent charges, and defend against chargebacks.

Supplier Account: The business account set up for each supplier which contains contact information and other general business information.

Voucher: The booking confirmation provided to Customers which specifies their reservation number and other booking details.

Attachment Two: Payment Terms

On a monthly basis, TS Tours will pay Supplier a “Supplier Remittance” in an amount equal to the Retail Rate minus the TS Marketing Fee, the Net Rate, for all Products delivered by the Supplier to Customer in the previous month, less any adjustments including but not limited to cancellations or refunds provided to the Customer. Payment will be made via electronic funds transfer using Bill.com unless the payment owed is less than $100.00, in which case the payment will be deferred to the subsequent month until the $100.00 threshold is met. All payments from TS Tours to Supplier 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.