Tern Software Inc (“Tern”) owns and operates a travel platform that connects travel advisors, travel agencies, travel suppliers, and travelers (“user’, “you” or “your”). This Terms of Service (“Terms of Service” or “Terms”) applies to and governs your access to and use of our website located at tern.travel website (the “Website”) and the Tern mobile application (the “Tern App”) (the Website and Tern App are collectively referred to herein as the “Tern Platform”) and all services, features, functionality, tools, content, materials, and offers made available through the Tern Platform (collectively, together with the Tern Platform, the “Tern Services” or the “Services”,) as well as your relationship with Tern, our affiliates, and service providers (referred to herein as “Tern”, “we”, “us”, or “our”).
These Terms of Service constitute a binding contract between you, as a user of the Tern Platform and the Services, and Tern.
THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION AND A CLASS ACTION WAIVER THAT REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND LIMIT THE REMEDIES AVAILABLE TO YOU IN A DISPUTE.
IF YOU DO NOT AGREE WITH THESE TERMS, INCLUDING THE ARBITRATION AGREEMENT INCLUDED BELOW, DO NOT ACCESS THE TERN PLATFORM OR USE THE TERN SERVICES IN ANY MANNER.
Changes to these Terms of Service
We may modify or change these Terms from time to time in our sole discretion, effective immediately upon posting the revised Terms, along with the effective date, on the Tern Platform; however, we will notify you by email or through the Tern Services if we make a modification that materially affects your rights. When you access the Tern Platform and/or use the Tern Services after the updated Terms of Service is posted, such access and use signify your acceptance to the modifications.
The version of these Terms posted on the Tern Platform on each respective date you visit such will be the Terms applicable to your access thereto and/ or use of the Services on that date. Our electronically or otherwise properly stored copies of the Terms shall be deemed to be the true, complete, valid, and authentic copy of the version of the Terms that was in force on each respective date you used the Services.
Privacy
Please review our Privacy Policy located at tern.travel/privacy to understand our privacy practices when you access the Tern Platform and/or use the Tern Services.
About the Tern Platform
The Tern Platform is an online software platform connecting travel advisors, travel agencies, travelers, and suppliers. Travel agents use the Tern Platform to manage their travel business including such features as: CRM, trip planning, itinerary building, marketing, travel booking for travel clients, and commission tracking (“Travel Advisor(s)”). Travel agencies use the Tern Platform for collaboration with and among its affiliated Travel Advisors, sales and commission tracking and reconciliation for Travel Bookings made using their IATA account, or similar type of account identification, and to access data and reports based on their Travel Advisors use of the Tern Platform (“Agency” or “Agencies”). Travelers use the Tern Platform to connect with their Travel Advisor, access relevant travel information, and authorize their Travel Advisor to book for trips on their behalf (“Traveler(s)”). Travel suppliers (e.g., airlines, hotels and other lodging accommodations, car rental companies, tour operators, and travel insurance companies) use the Tern Platform to connect with Travel Advisors sharing resources on their travel related offerings (“Travel Supplier(s)”). Travel Advisors, Agencies, and Travel Suppliers are independent third parties and are not affiliated with or endorsed or sponsored by Tern.
Creating an Account
Tern offers four different account types tailored to each of our primary users: Travelers Advisors, Agencies, Travel Suppliers, and Travelers. Travelers may use Tern without an account to view itineraries shared by a Travel Advisor. To use any other features and functions, Travelers, as well as Travel Advisors, Agencies, and Travel Suppliers must each create an account to use Tern (“Account” or “Tern Account”). A Tern user may have multiple Account types based on his or her role at that time (e.g., an Agency may have both an Agency Account as well as a Travel Advisor Account). When creating a Tern Account, you must not misrepresent yourself or misrepresent affiliation with any organization, company, or group. Tern Accounts are personal to the user and are not transferable to any other person or entity.
You are entirely responsible for maintaining the confidentiality of your Account information, including your login ID and password, and for any and all activity that occurs under your Account. You agree to notify Tern immediately upon learning of any unauthorized access or use of your Account, login ID, or password or any other unauthorized access or breach of security. However, you may be held liable for losses incurred by Tern or any other person or entity due to another person using your Account, login ID, or password.
We reserve the right to suspend or terminate your Account for any reason without notice.
Representations and Warranties
You represent and warrant that: (a) all information, data, materials, or other content that you submit to or through the Tern Platform, the Tern Services, or your Tern Account are and shall be true, accurate, complete, and suitable for the purpose which they are intended; and (b) your access to the Tern Platform and use of the Services shall at all times comply with all applicable laws, regulations, and industry standards.
User Generated Content/Messages
Tern allows Travel Advisors, Agencies, Travel Suppliers, and Travelers to create and share content (including images, photographs, videos, communications, reviews, and other information materials) via the Tern Platform and Tern Services (collectively, “User Content”). By creating and uploading User Content to the Tern Platform, you grant Tern and its designees an unrestricted, irrevocable, perpetual, assignable, sublicensable, non-exclusive, worldwide, royalty-free, and fully paid-up license under all intellectual property rights to use, reproduce, publicly display, publicly perform, publish, copy, edit, modify, translate, reformat, transmit, distribute, prepare derivate works of, and commercialize, in any media known or hereinafter developed, your User Content, with or without attribution, in any form or manner for any lawful purpose, without compensation to you. Tern has full rights to sublicense these rights through multiple tiers of distribution.
By creating and uploading User Content to the Tern Platform, you hereby represent and warrant: (a) that you own or have the full legal right to so use your User Content and grant Tern the rights describe above, (b) your User Content is not confidential or proprietary to any third party and is submitted to the Tern Platform without any expectation of privacy; (c) your User Content does not violate any law, regulation, or contractual restriction; (d) your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any person or third party; and (e) you are fully responsible for your User Content, which must comply with these Terms.
Tern is not responsible, or liable to you, any user, or third party, for the content, reliability, legality, or accuracy of any User Content. Use of User Content is at your own risk.
Tern neither actively monitors general access to the Tern Platform or the Services, nor exercises editorial control over any User Content. However, Tern does reserve the right to monitor such User Content or other use at any time as it deems appropriate and to remove any User Content or other materials that, in Tern’s sole discretion, may be illegal, may subject Tern to liability, may violate these Terms, or are, in the sole discretion of Tern, inconsistent with Tern’s intended purpose for the Tern Platform or the Services.
The Services may allow Tern Platform users to exchange messages (“Messages”) with each other. Sending Messages is a privilege, not a right, and Tern may terminate such privileges of any user at any time and for any reason. If a user sends you an objectionable Message, please contact Tern immediately at support@tern.travel. You are solely responsible for the content of any Message you send. You agree that Tern may monitor Messages for compliance with these Terms, and Messages should not be considered confidential or proprietary.
Travel Offerings/Travel Bookings
We neither offer nor control any of the travel-related offerings, services and products accessible via the Tern Platform, including flights, accommodations, car rentals, packages, tours, or travel insurance (the "Travel Offerings"). These Travel Offerings are owned and managed by Travel Suppliers. Tern does not endorse or sponsor any Travel Offerings or Travel Suppliers, and disclaims all liability with respect thereto. The Travel Suppliers are responsible for the Travel Offerings, and their terms and conditions (e.g., payment terms, refundability, penalties, availability restrictions and use of fares or services, etc.) and privacy policies are applicable to your bookings, which you must understand and agree to when authorizing a booking (“Travel Terms”). When authorizing the payment for a Travel Offering, a traveler must accept the Travel Terms which are provided via a link with the Travel Offering prior to booking authorization.
Engaging with any Travel Supplier found or accessed through the Tern Platform is solely at your own risk, and we assume no responsibility, and you hereby waive any legal or equitable right or remedy you may have against us for any issues that may arise with bookings or the use of Travel Offerings.
Third Party Websites
The Tern Platform and Services may include links to external websites or social media platforms (including those of Travel Advisors and Travel Suppliers) that we neither operate nor oversee ("Third-Party Sites"). Your use of Third-Party Websites and any services or purchases from such Third-Party Websites are subject to the terms and conditions of such other websites. We do not endorse or sponsor any Third-Party Sites, nor do we make any representations or warranties regarding them. Links to Third-Party Sites on our Platform are provided solely for your convenience. By accessing any Third-Party Sites, you assume all associated risks and release us from any claims concerning the Third-Party Sites or our links to them, and you agree that you will not bring any claim, suit, or action against Tern arising from or based upon any use of Third-Party Sites.
Consent to Electronic Communications
By using the Services, you agree that we may communicate with you electronically regarding Account registration, bookings, payments, security, privacy, and administrative issues relating to your Tern Account and/or use of the Tern Platform and Services.
You consent to receiving our email newsletter and other marketing-related emails from us. If you wish to remove yourself from our email list for such marketing-related emails, please use the unsubscribe link in any email received from us, or email us with “OPT-OUT”, “UNSUBSCRIBE”, “STOP”, or “REMOVE” in the subject line.
Use/Prohibited Activities
Tern reserves the right to do any of the following, at any time, without notice or liability: (a) terminate these Terms of Service; (b) refuse, restrict, suspend, discontinue, or terminate operation of or access to the Tern Platform or use of the Services, or any portion thereof; (c) modify or change the Tern Platform, the Services, or any portion thereof, and any applicable policies or terms; and (d) interrupt the operation of the Tern Platform, the Services, or any portion thereof, as necessary to perform maintenance, error correction, or make other changes.
In connection with your access to the Tern Platform and your use of the Services, you agree you will not (or allow or assist a third party to):
Tern reserves the right to take whatever lawful actions it may deem appropriate in response to actual or suspected violations of these Terms of Service, including, without limitation, the suspension or termination of your access and/or Account. Tern reserves the right at all times to disclose any information as Tern deems necessary to satisfy the requirements of any applicable law, regulation, legal process or governmental request. You also agree to reimburse Tern for any damage, loss, cost, or expense Tern incurs (including fees or costs of attorneys, accountants, professional advisors, and other experts incurred in connection with the defense or settlement of the foregoing) because of your access to the Tern Platform or use of the Tern Services for any unlawful or prohibited purpose.
Travel Advisor & Agency Specific Terms
The following terms and conditions apply only to Travel Advisor and Agency users.
A. Subscriptions: Access to the features, functionality, tools, software, and/or content offered through the Tern Platform and Tern Services to Travel Advisors, as well as to Agencies through Tern for Agencies require the purchase of a fee-based subscription (the “Subscription Plan”). Tern, at its sole discretion, may offer various types of Subscription Plans to Travel Advisors and Agencies (i.e., the available features, functionality, tools, software, and/or content, as well as the applicable fees) and retains the right to modify, terminate, or amend the Subscription Plans, in whole or in part, at any time.
Travel Advisors have the option to purchase a Subscription Plan on either a monthly or yearly basis, and Agencies on a monthly, quarterly or yearly basis (“Subscription Term”). Upon purchasing your chosen Subscription Plan, you will gain access to features, functionality, tools, software, and/or content currently available within that Subscription Plan for the duration of your Subscription Term (the “Subscription”). Your Subscription commences as soon as your initial payment for such is processed.
If a Travel Advisor’s Subscription is provided through his or her affiliated Agency (regardless of whether Travel Advisor is an employee of or independent contractor with such Agency) or if a Travel Advisor connects his or her own paid Subscription to an Agency’s travel network within Tern, Travel Advisor acknowledges and agrees that his or her affiliated Agency has access to all of his or her Tern Account information and data generated during such affiliation. However, if Travel Advisor leaves such Agency, Travel Advisor may retain his or her Tern Account and Traveler client information provided that Travel Advisor purchases his or her own Subscription Plan directly with Tern. Notwithstanding the forgoing, Travel Advisor and Agency will retain access to data generated while the Travel Advisor was connected to the Agency’s travel network via Tern (i.e., Travel Bookings made by the Travel Advisor and commission information in connection therewith).
Tern may, at its sole discretion, offer you Travel Advisors a 14-day free trial period to a Subscription, after which a recurring payment will begin, based on your chosen Subscription Plan (either a monthly or yearly charge). The free trial period can be activated only once per Tern Travel Advisor Account, regardless of the specific Subscription you have selected or previously used.
Your Subscription will automatically renew each month, quarter, or year, depending on the Subscription Term you have chosen, without notice until you cancel in your Tern Account settings in the Tern App. You authorize us to store your payment method(s) and to automatically charge your payment method(s) every month or year until you cancel the automatic renewal for your Subscription in your Tern Account settings within the Tern Appby giving written notice thereof via email to support@tern.travel or cancel your subscription in the Tern App. We will automatically charge you for your Subscription and any applicable taxes (such as, but not limited to, sales taxes, VAT, or GST), every month, quarter, or year, as applicable, upon renewal until you cancel. We may change the fees applicable to your Subscription for any renewal thereof, by giving you written notice thereof with the option to cancel the automatic renewal via your Tern Account settings in the Tern App. by sending written notice thereof via email to support@tern.travel. In accordance with applicable law, you accept the new fee by continuing to use the Subscription after the fee change takes effect. If the applicable sales tax, VAT, GST rate, or any other tax or duty changes during your Subscription Term, we will adjust the tax-inclusive price for the Subscription accordingly on your next billing date.
Travel Advisor or Agency, as applicable, can cancel a Subscription at any time via its Tern Account within the Tern App; however, there are no refunds for cancellation, and the subscriber acknowledges and agrees that Tern will not provide any refund, exchange, credits, or extensions for any unused time of a Subscription Term (monthly, quarterly, or yearly) or unused Seats (as defined below), regardless of the type of Subscription or any changes to it (e.g., the length of the Subscription Term and/or the number of Seats).
If you have any questions regarding your Subscription or issues cancelling your SubscriptionTo cancel a Subscription, contact Tern at support@tern.travel for assistance.
Subscription fees must be paid in advance in accordance with the selected Subscription Term as specified in your Account or Tern order form. Failure to make timely payments may result in the suspension or termination of your Subscription and/or access to the Tern Platform and Tern Services. Payment is available online using Tern’s third-party payment gateway provided by Stripe, or another payment processor that may be made available by Tern from time to time.
B. Agency Subscription Plans: Subscription Plans made available to an Agency are based on the Subscription Term as well as the number of seats purchased by such Agency for each of its Travel Advisors (“Seats”). Each Travel Advisor must have a purchased Seat and create his or her own Tern Account to use Tern via an Agency Subscription Plan. A Travel Advisor with his or her own Subscription may also connect to an Agency’s Tern travel network to share Travel Bookings, commissions, and other information generated within Tern.
Tern may change the Seat fees and discounts provided to Agency for any renewal of an Agency’s Subscription Term by giving the Agency email notice thereof with the option to cancel the automatic renewal by emailing support@tern.travel with notice thereofvia its Tern Account within the Tern App prior to the renewal. In accordance with applicable law, Agency agrees to such new fees upon the automatic renewal of Agency’s Subscription Term and Subscription Plan unless Agency has sent written notice of cancellation or changes to itscancelled or changed its Subscription via its Tern Account within the Tern App prior to the end of the then current Subscription Term.
Agency can re-assign its purchased Seats during a Subscription Term. For example, if a Travel Advisor leaves the Agency during a Subscription Term, Agency can use that Seat for another Travel Advisor affiliated with such Agency, provided that such new Travel Advisor will need to create his or her own Tern Account. Due to pricing discounts, no refunds are issued for quarterly and annual Seats; an empty/unused Seat is not eligible for a refund, extension, or credit. After cancelling a Seat within its Subscription, Agency cannot renew such cancelled Seat, rather Agency will be charged a new Seat fee if it subsequently adds another Seat to its Subscription.
Seats do not equal Tern Accounts. Each Travel Advisor is required to create his or her own Tern Account, which is personal to and controlled by the Travel Advisor, not the Agency. Thus, when a Travel Advisor leaves the Agency, the Tern Account for such Travel Advisor remains with such Travel Advisor provided that such Travel Advisor enters into a Subscription directly with Tern, otherwise that Travel Advisor’s Tern Account is deleted (i.e., neither Agency nor its other Travel Advisors will have access to any data contained within such Tern Account (e.g., Traveler contacts, etc.), provided, however, that the Agency will retain access to data generated while the Travel Advisor was connected to the Agency’s travel network via Tern (i.e., Travel Bookings made by the Travel Advisor using the Agency’s IATA account or similar type of account identification and commission information in connection therewith).
If an Agency has any issues cancelling or changing its Subscription and/or number of Seats, contact Tern at support@tern.travel for assistance.
C. Import Tool: Tern makes available a “Media Import” tool for Travel Advisors “Import Tool”). This Tool is designed to make it easy for Travel Advisors to import media and generate descriptions from websites that they have permission to use. Travel Advisors are expressly prohibited from using the Import Tool to import media or generate text prohibited by the terms governing such websites or where you do not have proper permissions to use the media in their itineraries.
D. Booking Authorizations/Travel Insurance: In order to book a Travel Offering with a Travel Supplier on behalf of a Traveler client, the Traveler must create an Account on the Tern Platform, add his or her payment information, and then “authorize” the booking via the Tern Platform before you, as the Travel Advisor, submits payment to the Travel Supplier (“Travel Bookings”). Travel Advisor and/or Agency are responsible for ensuring that the applicable Travel Terms are available for review by the Traveler at the time the traveler authorizes the applicable Travel Booking. Travel Advisor and Agency each further acknowledge and agree that if you market and sell travel insurance via the Tern Platform in connection with Travel Bookings (“Travel Insurance”), that you have the legal right to do so in compliance with all applicable laws and regulations, including the laws of the state in which the traveler resides. As between Tern and you, you are solely responsible to both Traveler and Travel Suppliers for all Travel Bookings and Travel Insurance provided to your Traveler clients, as well as for payments made via the Tern Platform and Tern Services, including, without, limitation the protection of a Traveler’s credit card and other personal information you use in connection with the Travel Booking and any chargebacks resulting therefrom, as well as a Travel Advisor’s use of his or her Agency’s IATA account number, or similar type of account identification, for Travel Bookings. You acknowledge and agree to comply with all applicable international, federal, state and local laws, regulations, and industry standards (including, without limitation, PCI DDS) in connection with your Travel Bookings, payments on behalf of your Traveler clients to Travel Suppliers, and your use of the Tern Platform and Tern Services in connection with the forgoing.
E. Commissions and Fees: Travel Advisor may use the Tern Platform and Tern Services for the payment of commissions due as a result of Travel Bookings and/or to charge fees for the travel related services provided to a Traveler (e.g., planning fees, processing fees, etc.). You acknowledge and agree that you shall not use any funds or payment methods provided by or on behalf of a Traveler for Travel Bookings for the payment of any commissions or fees. You agree to separately invoice and process payments from Travel Suppliers and/or Travelers for any amounts due you as a result of a commission or a fee.
F. Payment Processing: Tern uses Stripe, Inc. (“Stripe”), a third-party payment processor, to process payments made via the Tern Platform and Tern Services (Subscription fees, Travel Bookings, and commissions/fees). You will be required to create an account with Stripe and agree to the terms, conditions, and restrictions provided by Stripe for payment processing, including, without limitation, the terms located at: https://stripe.com/legal/restricted-businesses. Tern may from time and time and in its sole discretion change payment processors or make payment processing available by other third-party processors.
Ownership/Intellectual Property Rights
The Tern Platform and Services, including all content, code, software, graphics, images, Marks, logos, other materials, well as the design and “look and feel”, all modifications and updates thereto and all intellectual property rights therein and thereto (excluding User Content) (collectively, “Tern IP”), are owned by or licensed to Tern by third parties licensors, and are proprietary to Tern and its licensors and protected by intellectual property and other proprietary rights, laws, and treaties. No ownership rights or interests in the Tern IP are transferred to you by these Terms or by your access to and use of the Tern IP, whether by estoppel, implication, or otherwise. You do not have any rights in or to the Tern IP except for the limited, express rights granted in these Terms.
You acknowledge that Tern has acquired, and is the owner of, common law or registered trademark rights in the name and word mark “TERN” and in the other marks, logos, trade dress and design marks displayed on the Tern Platform and Services (“Marks”). You will not challenge the validity of, or Tern’s ownership of, the Marks, and you waive any rights you may have to do so. You may not use our Marks in connection with any product or service without our prior, written consent, or in any manner that is likely to cause confusion. All use of the Marks by you will inure solely and exclusively to Tern’s benefit.
Subject to these Terms, Tern grants you a personal, non-exclusive, non-transferable, revocable, and limited license to access the Tern Platform and use the Services and Tern IP solely for the purposes specified in the Terms and on the Term Platform. This license shall automatically and immediately terminate upon any termination of these Terms and/or your Tern Account.
If you give Tern feedback, comments, or suggestions concerning the Tern Platform or the Services (collectively, “Feedback”), you hereby assign to Tern all right, title, and interest in and to the Feedback, and Tern is free to use the Feedback without payment, attribution, or restriction.
Governing Law
These Terms shall be construed in accordance with the laws of the State of Delaware, without regard to any conflict of law provisions.
Limitation of Liability; Waiver
Tern owns and operates the Tern Platform and Tern Services. Travel Advisors, Agencies, and Travel Suppliers provide the Travel Offerings, Travel Bookings and related services (including, without limitation, travel Insurance), and Terns assumes no liability to any Traveler, Tern user, or other third party arising out or relating to such offerings, bookings, and services and/or the acts and omissions of Travel Advisors and Travel Suppliers. You hereby agree to waive any right to bring a claim against Tern in connection with any of the forgoing.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TERN BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES OR COSTS (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF GOODWILL, LOSS OF OR DAMAGE TO PROPERTY, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, AND CLAIMS OF THIRD PARTIES) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, THE TERN PLATFORM, OR THE SERVICES, EVEN IF TERN WAS ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
WITHOUT LIMITING ANY OF THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY LAW, IF TERN IS FOUND LIABLE TO YOU OR ANY THIRD PARTY AS A RESULT OF ANY CLAIMS OR OTHER MATTERS ARISING UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE, THE TERN PLATFORM, OR THE SERVICES, TERN’S CUMULATIVE, AGGREGATE, AND TOTAL LIABILITY FOR ALL SUCH CLAIMS AND OTHER MATTERS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED USD $100.
This limitation of liability reflects the allocation of risk between you and us, and will survive and apply even if any limited remedy specified in these Terms is found to have failed its essential purpose.
Disclaimer of Warranties
THE TERN PLATFORM AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES IMPLIED BY A COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
TERN AND/OR OUR THIRD PARTY SUPPLIERS AND LICENSORS DO NOT REPRESENT, WARRANT OR COVENANT THAT THE TERN PLATFORM AND THE SERVICES ARE OR WILL BE ACCURATE, CURRENT, COMPLETE, FREE OF TECHNICAL AND TYPOGRAPHICAL ERRORS, SECURE, RELIABLE, OR APPROPRIATE FOR ANY PARTICULAR USE TO WHICH YOU OR ANY THIRD PARTY MAY CHOOSE TO PUT THEM, THAT THEY ARE OR WILL BE AVAILABLE ON AN UNINTERRUPTED AND ERROR-FREE BASIS, THAT DEFECTS WILL BE IDENTIFIED OR CORRECTED, OR THAT THE TERN PLATFORM AND SERVICES ARE FREE OF VIRUSES OR OTHER DISABLING DEVICES OR HARMFUL COMPONENTS. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE TERN PLATFORM OR THE SERVICES. WE MAKE NO WARRANTY THAT THE TERN PLATFORM OR THE SERVICES WILL MEET YOUR REQUIREMENTS.
IF YOU ARE DISSATISFIED WITH THE TERN PLATFORM OR THE SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE TERN PLATFORM AND THE SERVICES.
TERN PERIODICALLY AMENDS, CHANGES, ADDS, DELETES, UPDATES, OR ALTERS THE TERN PLATFORM AND THE SERVICES WITHOUT NOTICE. FURTHER, TERN ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE TERN PLATFORM OR THE SERVICES. TERN SPECIFICALLY DISCLAIMS ANY DUTY TO UPDATE THE CONTENT, OR ANY OTHER INFORMATION ON THE TERN PLATFORM OR THE SERVICES.
Indemnification
You (and also any entity for whom you operate an Account or activity on the Service) agree to defend (at Tern’s request), indemnify and hold Tern its affiliates, shareholders, licensors, suppliers, or the officers, directors, employees, agents, and contractors of each of the foregoing (the “Tern Parties”) harmless from and against any claims, liabilities, damages, losses, costs and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) your User Content or your access to or use of the Tern Platform and/or Services; (ii) your breach or alleged breach of these Terms of Service; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by Tern in the defense of any claim. Tern reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Tern. All rights and duties of indemnification set forth herein shall survive termination of these Terms of Service.
Binding Individual Arbitration Agreement; Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
By agreeing to these Terms, you agree that you are required to resolve any claim that you may have against Tern on an individual basis in binding arbitration as set forth in this Section (“Arbitration Agreement”), and not as a class, collective, coordinated, consolidated, mass and/or representative action. Binding arbitration is a procedure in which a dispute is submitted to one or more arbitrators who make a binding decision on the dispute. In choosing binding arbitration, you and Tern are opting for a private dispute resolution procedure where you agree to accept the arbitrator’s decision as final instead of going to court. You and Tern are each waiving your right to a jury trial.
You agree that any and all disputes, claims, or controversies between you and Tern arising out of or relating to these Terms of Service, the Tern Platform, the Tern Services, or any other aspect of the relationship between you and Tern, (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) (collectively, “Disputes”) will be governed by the below procedures.
A. Informal Dispute Resolution: We want to address your concerns without needing a formal legal proceeding. Before filing a claim against Tern, you agree to try to resolve the Dispute informally by contacting us at support@tern.travel. We will try to resolve the Dispute amicably by contacting you through email. If a Dispute is not resolved within 15 business days after submission, you or Tern may bring a formal legal proceeding.
Arbitration Agreement: EXCEPT AS SET FORTH UNDER EXCEPTIONS TO AGREEMENT TO ARBITRATE BELOW, YOU AND TERN AGREE TO RESOLVE ALL DISPUTES THROUGH FINAL AND BINDING ARBITRATION PURSUANT TO THE BELOW ARBITRATION PROCEDURES. YOU AND TERN EACH WAIVE THE RIGHT TO SUE IN COURT AND TO HAVE A JURY TRIAL. YOU AGREE THAT ANY ARBITRATION UNDER THESE TERMS OF USE WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION
B. Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States in Dove, Delaware, or any other location mutually agreed to by you and us, provided, however, that if you are an individual residing in the U.S. and acting in a personal capacity, the arbitration proceeding will be held in your hometown. The arbitrator, and not any federal or state court, shall have exclusive authority to resolve any dispute, claim, or controversy arising out of or relating to the interpretation, applicability, arbitrability, enforceability, or formation of these Terms of Service. To the extent that the arbitrator deems reasonable, the arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances. Arbitration proceedings will be conducted in English and in a manner that preserves confidentiality. The arbitrator’s decision will follow the plain meaning of the relevant documents and will be final and binding and may be entered thereafter by any court of competent jurisdiction. The arbitrator shall not be empowered to award punitive or exemplary damages to any party, except where permitted by statue, and the parties waive any right to recover such damages.
C. Arbitration Fees: The AAA rules will govern payment of all arbitration fees. Tern will pay all arbitration fees for claims less than $75,000 provided that you will be solely responsible for you own attorneys’ fees and costs. Tern will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
D. Exceptions to Agreement to Arbitrate: Without first engaging in arbitration or the informal dispute resolution process described above, either you or Tern (1) may assert claims for any Dispute, if they qualify, in small claims court in Dover, Delaware, or any United States county where you live or work and seek an amount up to the jurisdictional limit for individuals in such small claims court (notwithstanding any limitation on such damages set forth herein), or (2) may bring a lawsuit for injunctive relief solely for infringement or misappropriation of intellectual property rights (e.g., trademark, trade secret, copyright, or patent rights), and also, in the case of Tern, to stop unauthorized use or abuse of the Tern Platform or Tern Services).
E. No Class Actions: You agree that all Disputes with Tern must be resolved on an individual basis, and that you shall not bring a claim for any Dispute as a plaintiff or a class member in a class, consolidated, or representative action (. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not permitted under these Terms of Service.
F. Judicial Forum for Disputes: In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Tern agree: (a) that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Kent County, Delaware, and expressly consent to exclusive venue and personal jurisdiction there, (b) to waive any claims or defenses that venue is improper for any reason in these courts; and (c) to waive your right to a jury trial.
G. Time Limitation on Claims: Regardless of any statute or law to the contrary, any Dispute must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
H. Survival/Severability: The provisions set forth in this Arbitration Agreement Section shall survive the termination of these Terms of Service. If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (i) the unenforceable or unlawful provision shall be severed from these Terms; (ii) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
Copyright Infringement Notices and Takedown
Tern respects the intellectual property rights of others and is committed to complying with the Digital Millennium Copyright Act of 1998 (the "DMCA"). If you believe that your work has been improperly copied and made available on the Tern Platform, please provide us with the following information to initiate the complaint process under U.S. copyright law:
To be legally sufficient under the DMCA, your infringement notice must comply with these requirements.
We will process notices of alleged infringement received and will take appropriate action as required by the DMCA. The DMCA requires that notifications of claimed copyright infringement should be sent to a Designated Agent who is:
Tern Software Inc.
Attn: Designated Agent
1111B S Governors Ave #6194
Dover, DE 19904
Or via email at support@tern.travel
General
These Terms of Service (as may be revised and amended from time to time according to their respective terms) constitute the entire agreement with respect to your access to the Tern Platform and your use of the Services. Except as expressly provided for herein, these Terms do not confer any rights, remedies, or benefits upon any person or entity other than you and Tern. Tern may assign its rights and duties under these Terms at any time to any third party without notice. You may not assign these Terms or your Tern Account without the express prior written consent of Tern. These Terms shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns. To the extent any portion of these Terms shall be determined to be unenforceable by a court of competent jurisdiction, such portion will be modified by the court solely to the extent necessary to cause such portion to be enforceable, and these Terms as so modified will remain in full force and effect. Any waiver of any provisions contained in these Terms by Tern shall not be deemed to be a waiver of any other right, term, or provision of these Terms. Any rights not expressly granted herein are reserved. Neither these Terms, nor your access to the Tern Platform or your use of the Services, create any partnership, joint venture, employment, or other agency relationship between Tern and you. You may not enter into any contract on our behalf or bind us in any way.
Contacting Us
Tern welcomes any comments or questions you may have regarding these Terms of Service, the Tern Platform, and/or the Services. Please contact us at either:
Tern Software Inc.
Attn: Privacy Team
1111B S Governors Ave #6194
Dover, DE 19904
Or via email at support@tern.travel
