Terms of Use

A note to our customers: Your future travel plans may be affected by COVID-19. Please read the refundability policy closely. Stay safe and find out more here.

Please read these Terms of Service ("Agreement" or "Terms of Service") carefully before accessing www.mobytrip.com (the “Site") in any way. The Site is operated by TripElephant Inc. and its related entities ("us", "we", "our", or the “Operator”). This Agreement is between the Operator and you as a user of this Site (“you” or “User”) and sets forth the legally binding terms and conditions for your use of the Site and its services.

By accessing or using the Site in any manner, including, but not limited to, visiting or browsing the Site, you agree to be bound by these Terms of Service. As sufficient consideration for your assent to this Agreement, you are provided access to the Site, its hotel-booking services and our 24/7 Customer Call Center (the “Services”). You agree not to use the Site or Services if doing so would violate the law(s) of your jurisdiction.

The Site provides you with an online platform through which you can browse different hotel accommodations and services and make reservations with hotel suppliers (i.e., the suppliers of hotel accommodations and other services to whom you are connected through the Site). We do not provide you with hotel accommodations or other hotel services; hotel accommodations and related services are provided by the hotel suppliers. While your use of the Site is subject to these Terms, your stay and the provision of hotel services is subject to the terms and conditions of the applicable hotel supplier.

These Terms apply to your access and use of our services. Our services include, but are not limited to:

By accessing the Site and/or using our services, you agree to be bound by these Terms and our Privacy Policy located here which together are referred to as the “Agreement”. Please read the Agreement carefully. If you do not accept and agree to the Agreement, please do not use or book any reservations through the Site. Operator may at any time change these Terms and your continued use of the Site is conditioned upon acceptance of the updated Terms.

1.0 DISCLAIMER

Operator is not responsible for any failures caused by server errors, failed internet connections, any computer or other technical defect, whether human or technical in nature. No guarantees are made regarding the availability of hotel services including inventory, that a user will always receive the lowest available price, or the validity of any content provided to us by a third-party including hotel suppliers.

The information provided through the Site may include inaccuracies or errors, including pricing errors. Operator does not guarantee the accuracy of, and disclaims all liability for any errors or other inaccuracies relating to the information and description of the hotel properties and other hotel supplier services as displayed on the Site. Operator reserves the right to cancel, to terminate or not to process reservations (including accepted reservations) where the price or other material information on the Site is inaccurate. In such event, we may (if available and in our discretion) offer you the opportunity to keep your pending reservation at the correct price.

Covid-19: We understand this is a stressful time for everyone and, in many countries, a national emergency. In an effort to minimize the spread of Covid-19 some hotels might impose additional restrictions intended to minimize Covid-19 spread and to limit the ability of guests to meet other hotel guests. You might be required to comply with these measures to check in to the hotel and while on the property. These measures could limit the selection of food choices, including completely stop to provide breakfast; not operate pools, not operate the business center, face-covering regulation, proof of recent Covid-19 test results, proof of Covid-19 vaccination, face-covering requirements while on the property, or any other measures as requested by local regulators. As these measures might be related to recent requirements of local authorities, it’s not always possible to reflect that information on the hotel website and in the hotel description shown on our site. By making your reservation you agree that the hotel has the right to implement Covid-19 restrictions to check-in requirements and/or to limit services provided to you, as stated above. Please contact the property directly to require if any additional Covid-19 restrictions are in force prior to making a reservation. Thank you for your patience and understanding.

OPERATOR DOES NOT WARRANT THAT THE SERVICES OR THE SITE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE OR SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS, THE SERVICES AND THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OPERATOR HEREBY DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, SECURITY, RELIABILITY, ACCURACY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, OPERATOR EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO YOU IN CONNECTION WITH YOUR USE OF THE SERVICES OR THE SITE IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY YOU FOR ANY PURPOSE WHATSOEVER.

THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

2.0 USE OF THE SITE

2.1 As a condition of your use of our services, you represent and warrant that:

2.2 You will not yourself or permit others to: i. use or access the Site: o in violation of any applicable law or intellectual property right, o in a manner that threatens the security or functionality of the Site, or o for any purpose or in any manner not expressly permitted in these Terms; ii. use the Site to create, collect, transmit, store, use or process any: o computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; o data or content that you do not have the lawful right to collect, transmit, store, use or process or that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any intellectual property right, privacy right or right of publicity); iii. reverse engineer or modify the Site; iv. remove or obscure any proprietary notices or labels on the Site, including copyright or trademark notices; v. access or use the Site for the purpose of building a similar or competitive product or service; or vi. perform any vulnerability, penetration or similar testing of the Site.

2.3 Operator uses text messaging features as a part of the Site. This is to communicate with you about potential hotel bookings. You agree that Operator and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Site. You may also receive operational text messages about your booking. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.

3.0 MEMBERSHIP

The services are only available to users with a unique identifier, who can authenticate via a secure login. Your identifier is used to create a member profile - along with a unique membership ID - within our system. You agree not to share your membership ID or password, or any other means of accessing your Operator membership with anyone at any time. Hotel availability, services and rates presented to you are exclusively available to you based on your membership ID - and cannot be shared. You are fully responsible for all liability and damages resulting from your failure to maintain that confidentiality and all activities that occur using your account.

4.0 SUPPLIER RULES AND RESTRICTIONS

Operator works with several hotel suppliers. When a hotel room is reserved through the Site with a hotel supplier, the terms and conditions of that particular hotel supplier will also apply to your reservation. If you violate any part of the hotel suppliers’ terms and conditions, we have the right to cancel your reservation and to make changes accordingly. You will be responsible for all fees that arise from making such changes should it be applicable.

You acknowledge that some hotel suppliers may require you to agree to and sign their additional terms and conditions (including a liability waiver) prior to your stay at the hotel property or otherwise participating in the hotel services they offer. You understand that any violation of any such hotel supplier’s additional terms and conditions may result in cancellation of your reservation, you being denied access to the hotel property and/or other services, you forfeiting any monies paid in connection with your reservation, and/or your Operator account being debited for any costs we incur as a result of such violation.

When check-in to hotel you need a driver's license or government-issued ID card and a credit or debit card for any incidental expenses. Incidental expenses charge will be preauthorized during check-in and if incurred will be charged at time of check-out.

5.0 PRICES

The price for the hotel services will be as quoted on the Site from time to time, except in cases of obvious error. Prices are able to change at any time, but changes will not affect reservations already accepted. Despite our best efforts, some of the hotel services listed on the Site may be incorrectly priced. We reserve the right to correct any pricing errors on the Site and in such event, we may (if available and in our discretion) offer you the opportunity to keep your pending reservation at the correct price. We also reserve the right to cancel, to terminate or not to process reservations (including accepted reservations) where the price or other material information on the Site is inaccurate. We are under no obligation to fulfill orders placed at an incorrect (lower) price, even after you have been sent confirmation of your order.

The price quoted on the Site may include, where applicable, fees, tax recovery charges taxes on Operator’s services. Except with respect to tax obligations on the amounts we retain for our services, Operator does not collect taxes for remittance to applicable taxing authorities. The tax recovery charges on prepaid hotel reservations are a recovery of the estimated taxes (e.g. sales and use, occupancy, room tax, excise tax, value added tax, etc.) that Operator pays to the hotel supplier for taxes due on the hotel's rental rate for the room. The hotel suppliers invoice Operator for certain charges, including tax amounts, and are responsible for remitting applicable taxes to the applicable taxing jurisdictions. Taxability and the appropriate tax rate vary greatly by location. The actual tax amounts paid by Operator to the hotel suppliers may vary from the tax recovery charge amounts, depending upon the rates, taxability and other related factors in effect at the time of the actual use of the hotel by our customers.

In addition, your statement may include a transaction fee charged by your card issuer to process the transaction. We are not associated with these additional fees and will not be held liable for any fees relating to the transaction.

6.0 PREPAID OR PAY AT HOTEL

You acknowledge that some reservations require prepayment, and some reservations can be paid later at the hotel property. If you select a prepaid reservation, you will be charged the full amount for the reservation immediately following the submission and acceptance of your reservation. If you select a pay later rate, you will pay the hotel supplier upon arrival in their preferred currency for the full amount. You understand that tax rates and foreign exchange rates could change in the time between making your reservation and your stay at the hotel property, which means the amount you will pay the hotel supplier may differ from the amount reflected in your reservation.

Transaction fees may apply when making a reservation for a hotel property in a foreign country or in a foreign currency. These fees will be applied to the cardholder’s account by the card issuing bank, independent from Operator. If you have any questions about these fees or any exchange rates applied to your order, please contact your credit card issuer.

7.0 SPECIAL REQUESTS

We will do our best to pass on your special requests to the hotel supplier - but we cannot guarantee that the hotel supplier will be able to honor any special requests that you make. You must contact the hotel supplier directly to confirm the availability of any extra items or special requests. It is also your responsibility to verify that the hotel supplier can satisfy any special needs (such as accessibility features) that you may have.

8.0 CHANGES OR CANCELLATIONS

You can cancel your reservation on your email confirmation or by using our Support page. However, cancellation fees may apply in accordance with the reservation terms and conditions. Each booking will have its own unique cancellation policy, which can be found on the final booking step as well as in the confirmation email. If the policy is non-refundable, that means the booking is final sale and will not result in a refund if cancelled. You agree to pay any required cancellation fees when you confirm the booking. You also agree to pay any required change fees to modify your booking. Changes to your booking are not guaranteed and are subject to approval by hotel suppliers. Operator is not liable for any rejected changes to a hotel booking and reserves the right to charge the modification fee regardless.

if your are paying an a different currency, then cancellation, even requested during free cancellation time, may result in outstanding charge to your card due to different conversion rates charged by your card issuer to process the payment and refund transactions. We are not associated with these additional fees and will not be held liable for any fees relating to varying exchange rates or card issuer fees.

We are not responsible for the acts or omissions of any hotel supplier. If a hotel supplier is unable to honor your reservation, Operator will not be liable for any costs incurred due to relocation. If you do not show for the first night of your reservation, but plan to check-in for subsequent nights in the reservation, you must confirm the reservation with Operator no later than the original date of check-in to prevent cancellation of the whole booking. If you do not confirm the booking changes with Operator the whole booking may be cancelled and refunds will only be due to you in line with the cancellation policy of the particular property, as notified in the booking process.

9.0 CURRENCY CONVERTER AND FOREIGN TRAVEL

When paying in a different currency, the conversion rate is determined by your credit card issuing bank and Operator can only provide you with an estimate. In addition, your statement may include a conversion or transaction fee (which may be in a foreign currency) charged by your card issuer to process the transaction. We are not associated with these additional fees and will not be held liable for any fees relating to varying exchange rates or card issuer fees.

Where your reservation is for a hotel property in a foreign jurisdiction, you are responsible for ensuring that you meet foreign entry requirements and that you have all necessary travel documents and that all foreign entry requirements are met. It is also your responsibility to make sure that you meet all health entry requirements, obtain the recommended inoculations, take all recommended medication, and follow all medical advice in relation to your trip. We accept no liability if you are refused entry into any country due to your failure to carry the correct and adequate passport, visa, or other travel documents required by any airline, authority, or country, including countries you may just be transiting through. By coordinating reservations for hotel services in international destinations, we do not make any representation or warranty that travel to such destinations are advisable or without risk. Operator has no liability for any damages or losses that may result from your travel to any destination.

10.0 GOVERNING LAW AND ATTORNMENT

Subject to applicable law, these Terms and any dispute arising from these Terms or in connection with our services will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. Subject to applicable law, any lawsuits arising in connection with these Terms shall be initiated in Toronto, Ontario, Canada, and you irrevocably attorn to the nonexclusive personal jurisdiction and venue of the courts sitting therein. Operator reserves the right to commence legal action in the Courts of Ontario in order to enforce these Terms, including the right to seek injunctive relief or other equitable relief to enforce compliance with these Terms. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent us from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.

11.0 INDEMNIFICATION

You agree to indemnify and hold harmless Operator and its affiliates and its and their respective officers, directors, employees and agents from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature brought by third parties directly or indirectly arising from or in connection with: (i) your breach of these Terms; (ii) your violation of any law or the rights of a third party; or (iii) your use of the Site.

12.0 LIMITATION OF LIABILITY

The content, pricing information and services provided through the Site may include inaccuracies or errors. We do not guarantee the accuracy of any information presented to you. All information regarding hotel suppliers and hotel services provided to you are intended as only general guidelines.

The Site may provide hyperlinks to websites operated by parties other than Operator. Such hyperlinks are provided for your reference only. We do not control such websites and are not responsible for their contents or the privacy or other practices of such websites. Further, it is up to you to take precautions to ensure that whatever links you select or software you download (whether from the Site or other websites) is free of such items as viruses, worms, trojan horses, defects and other items of a destructive nature. Our inclusion of hyperlinks to such websites does not imply any endorsement of the material on such websites or any association with their operators.

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL OPERATOR BE LIABLE TO YOU FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR RELOCATIONS; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

The hotel suppliers providing hotel services are independent contractors, they are not agents or employees of Operator . Operator is not liable for the acts, errors, omissions, representations, warranties, breaches or negligence of any hotel suppliers or for any personal injuries, death, property damage, or other damages or expenses resulting from or while on any hotel property. We have no liability and will make no refund in the event of any delay, cancellation, overbooking, strike, force majeure or other causes beyond our direct control, and we have no responsibility for any additional expenses, omissions, delays or acts of any government or authority.

IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF OPERATOR IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY YOU TO OPERATOR IN CONNECTION WITH THE RESERVATION GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, OPERATOR’S LIABILITY IN SUCH JURISDICTIONS WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

THE LAWS OF CERTAIN JURISDICTIONS LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

13.0 TERMINATION & UPDATES

We reserve the right to discontinue your membership if you act fraudulently or use the Site or our services in a way that does not comply with these Terms or any applicable laws. If we discontinue your membership, you may lose your accumulated credits. Our decision on all questions or disputes regarding Operator membership is final.

14.0 CHANGES TO TERMS AND CONDITIONS

We may change these Terms at any time, with or without notice, including the terms for the Program, Operator membership qualification requirements and associated benefits, currency conversion and the rates accessible to members. The most current version will always be available on the Site. If you do not agree with these Terms, you must stop using our services and the Sites.

15.0 COPYRIGHT AND TRADEMARK NOTICES

All contents of the MobyTrip.com website and the Site are © 2021 ,All rights reserved. Operator and the Operator logo are trade-marks of TripElephant Inc. in the US, Canada and other countries. Other logos and product and company names referenced in the Site are the trade-marks of their respective owners.

16.0 ENTIRE AGREEMENT AND SEVERABILITY

The provisions of these Terms are intended to be severable. If for any reason any provision of these Terms are held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.

These Terms and the Privacy Policy constitute the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect.

17.0 ARBITRATION AGREEMENT

17.1 This Arbitration Agreement facilitates the prompt and efficient resolution of any disputes that may arise between you and Operator . Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial. Please read this Arbitration Agreement carefully. It provides that all disputes between you and Operator shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees).

The term "Dispute" means any dispute, claim, or controversy between you and Operator regarding any aspect of your relationship with Operator, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). "Dispute" is to be given the broadest possible meaning that will be enforced.

THE PARTIES AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT. THE PARTIES AGREE THAT BY ENTERING INTO THESE TERMS, EACH PARTY IS WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. THE PARTIES AGREE THIS AGREEMENT IS SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT (“FAA”).

Nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (b) seek injunctive relief in a court of law in aid of arbitration

17.2 Pre-Arbitration Dispute Resolution

Before initiating any Dispute, you must first give Operator an opportunity to resolve the Dispute by emailing written notification to service@mobytrip.com. That written notification must include (1) your name, (2) your address, (3) a description of the Dispute, and (4) a description of the specific relief you seek. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration.

17.3 Arbitration Procedures

If the Dispute is not resolved as provided above in the Pre-Arbitration Claim Resolution section, either you or Operator may initiate arbitration proceedings. The American Arbitration Association ("AAA"), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator under the applicable consumer rules. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope and enforceability of this Arbitration Agreement. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. In the event that this Arbitration Agreement conflicts with the applicable arbitration rules, this Arbitration Agreement shall govern. Under no circumstances will class action procedures or rules apply to the arbitration. Because your contract with Operator, the Terms of Use, and this Arbitration Agreement concern interstate commerce, the FAA governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Operator must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.

17.4 Arbitration Award

The arbitrator may award any relief that would be available pursuant to applicable law. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Such award by the arbitrator will be final and binding on the parties, except as provided by applicable law, including but not limited to the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

17.5 Location of Arbitration

Any required arbitration hearing may be conducted, at your option, in (a) the county, parish, or province in which you reside; (b) Toronto, Canada; or (c) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.

17.6 Payment of Arbitration Fees and Costs

Operator will pay (or reimburse) all arbitration filing fees and arbitrator’s costs and expenses upon your written request. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA rules or JAMs rules, whichever is applicable. In that case, you agree to reimburse Operator for all monies previously disbursed by it that are otherwise your obligation to pay under the applicable rules. If you prevail in the arbitration and are awarded an amount that exceeds the last written settlement amount offered by Operator before the arbitrator was appointed, Operator will pay you: (i) the amount awarded by the arbitrator and (ii) your reasonable attorney’s fees incurred during the arbitration proceedings. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

17.7 Class Action Waiver

Any Disputes arising out of or relating to your use of Operator and/or any purchase you make on or through Operator, any information you provide via Operator, and/or these Terms (including the formation, performance, or alleged breach) will not be subject to any class action or representative status. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action). Neither you, nor any other Member of Operator and/or user of Operator services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding with respect to the matters set forth in the first sentence of this paragraph. You agree that this Class Action Waiver is material and essential to the arbitration of any dispute between you and Operator and is non-severable from the Arbitration Agreement. If any portion of this Class Action Waiver is limited, voided, or cannot be enforced, then the Arbitration Agreement shall be null and void. You understand that by agreeing to this Class Action Waiver, you may only pursue Dispute against Operator in an individual capacity and not as a plaintiff or class member in any purported class action or representative proceeding.

17.8 Limitation of Procedural Rights

You understand and agree that, by entering into this Arbitration Agreement, you and Operator are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this Arbitration Agreement, you and Operator might otherwise have a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). By using the Operator website, product or services, or otherwise accepting these Terms, you are entering into this Arbitration Agreement, and you give up those procedural rights. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration. The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.

17.9 Severability

If any clause within this Arbitration Agreement, other than the Class Action Waiver clause above, is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect.

17.10 Continuation

This Arbitration Agreement shall survive the termination of your contract with Operator and your use of the Operator website, products and services.

17.11 OPT-OUT

If you do not wish to resolve Disputes by binding arbitration, you may opt out of the provisions of this Section 17.0 within 30 days after the date that you agree to these Terms by sending a letter to TripElephant Inc, Legal department, suite 200, 232 Merton Str, Toronto, ON, M4S 1A1, Canada. In order to be effective, the letter must specify: your full legal name, the email address associated with your account on the Operator service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Operator receives your Opt-Out Notice, this Section 17.0 will be void and you are agreeing that any Dispute arising out of these Terms will be resolved as set forth in Section 12.0. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.

17.12 MODIFICATIONS

If Operator makes any future change to this arbitration provision, other than a change to Operator 's address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Operator 's address for Notice of Arbitration, in which case your account with Operator will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

18.0 INTELLECTUAL PROPERTY

The Site and its original content, features and functionality are owned by the Operator and are protected by international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. Except for a single copy made for personal use only, you may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any documents or information from this site in any form or by any means without prior written permission from us or the specific content provider, and you are solely responsible for obtaining permission before reusing any copyrighted material that is available on this Site. Any unauthorized use of the materials appearing on this Site may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.

Last updated September 9, 2021.