Terms and Conditions
|Products and Services
Terms and Conditions
The following definitions shall apply to these Terms and Conditions and this Agreement. Capitalized terms used in these Terms and Conditions and not otherwise defined in these Terms and Conditions will have the meanings set out in the other attachments to this Agreement.
“Airline Channel Agreement” means a written agreement between Subscriber and an Airline Channel Participant setting out, amongst other things, Subscriber’s access to Airline Channel Content and granting Subscriber the right to book Airline Channel Content.
“Airline Channel Content” means those fares and other content which Subscriber and each Airline Channel Participant have agreed between them in the relevant Airline Channel Agreement which may be booked via either ATPCO only or ATPCO and NDC API.
“Airline Channel Participant” means an airline Vendor with which Subscriber maintains a valid and in-force Airline Channel Agreement.
“Airline Channel Territory” means, in respect of each Airline Channel Participant, all Subscriber points of sale unless, in relation to any Airline Channel Participant, territories are referred to in the Commercial Terms Attachment (if any), in which case it shall be limited to those specified countries for the applicable Airline Channel Participant(s).
“Airline Channel Segment” means a Segment booked on an Airline Channel Participant in the Airline Channel Territory.
“BSP” means the billing settlement plan or any similar applicable settlement scheme.
“Charges” means the charges set out in the Products and Services Attachment and any further charges and fees that may be payable by Subscriber to Travelport.
“Confidential Information” means, with respect to either party, the proprietary business or technical information of that party, including any know-how, data, drawings, specifications, software, listings, source code, object code, financial information, business plans, reports on controls, proposals, information disclosed in responses to requests for proposals or quotes, information disclosed in the course of negotiations or contractual discussions between the parties (whether in relation to this Agreement or otherwise), and marketing concepts, including the terms of this Agreement and renewal offers, regardless of the form in which such information is communicated or maintained and whether or not such information constitutes a trade secret.
“Control” means, in relation to a body corporate or undertaking, the power of a person to secure that its affairs are conducted in accordance with the wishes of that person by means of the holding of shares or the possession of voting power in or in relation to that or any other body corporate or undertaking; or by virtue of any powers conferred by the articles of association or any other document regulating the affairs of or interests in that or any other body corporate or undertaking; and, in relation to a partnership, means the right to a share of more than one-half of the assets, or of more than one-half of the income, of the partnership and “Controlled” and “Controlling” shall be construed accordingly.
“Consideration” means the total value of all and any payments made by Travelport to Subscriber in accordance with or in connection with this Agreement (excluding any Per-Segment Incentive and Productivity Incentive) and the total value of any discounts to Charges given by Travelport to Subscriber under or ancillary to this Agreement (including but not limited to discounts to product, training, excess Message or service centre support charges) which are all made available to Subscriber in advance in anticipation and consideration of Subscriber complying with its obligations under this Agreement and continuing to generate Segments throughout the Term.
“DA” means Device Address which is the Travelport-assigned alpha numeric address for accessing the Travelport System.
“Data Controller” has the meaning set out in the Data Protection Laws and where no such definition is provided it shall mean the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data.
“Data Protection Laws” means all applicable laws in connection with the use, processing and disclosure of Personal Data.
“Data Subject” has the meaning set out in the Data Protection Laws and where no such definition is provided it shall mean an individual about whom information is processed.
“Fair Usage Criteria” requires (i) Subscriber to generate a volume of Segments such that, in Travelport’s reasonable opinion, Subscriber is likely to achieve its Segment Commitments and/or Segment Goal or is using commercially reasonable efforts to do so; (ii) Subscriber to not generate Look-to-Book Ratios that, in Travelport’s reasonable opinion, are excessive (iii) if using a Travelport API, Subscriber’s Look-to-Book Ratio to not exceed the Look-to-Book Ratio level assigned to Subscriber in the Products and Services Attachment; and (iv) that, in Travelport’s reasonable opinion, any Messages generated via the Travelport System are in response to a customer inquiry with the genuine intention of placing a booking on the Travelport System or for the purposes of reasonable system testing.
“Force Majeure” means, in relation to either party, a cause beyond the reasonable control of that party including but not limited to natural disasters, armed conflict, terrorist attacks, strikes, work stoppages, fire, acts of government, computer worms or viruses (but not due to a failure by Subscriber to implement adequate virus protection), acts or omissions of any telecommunications or other supplier or any power failure, power surge or breakdown in equipment (but not contributed to or otherwise caused by Subscriber) and, in relation to Travelport only, further including any cause beyond its, or any Travelport Group Company’s, reasonable control affecting the proper performance of the Travelport System.
“Included Subscriber Group Company” means a Subscriber Group Company that the parties mutually agree in writing is subject to this Agreement.
“Intellectual Property Rights” means copyright and all other intellectual property rights (including, without limitation, patents, trademarks, service marks, designs, domain names, database rights, moral rights (whether registered or unregistered) and any other similar protected rights in any country).
“Ineligible” means a reservation generated by Subscriber as may be designated by Travelport (in its sole discretion) from time to time as being ineligible under this Agreement (including, but not limited to Passives).
“Look-to-Book Ratio” means, in any given time period, the ratio determined by dividing (x) the number of Shopping Messages generated by Subscriber, by (y) the number of Segments generated by Subscriber, whether the Segments are generated via the Travelport API, terminal access method or otherwise via the Travelport System.
“Message” means any inquiry, request, command or other transaction with the Travelport System generated by Subscriber manually or by way of any automated programs.
“NDC API Segment” means a Segment transacted via the API of an airline Vendor that provides content to Travelport via both ATPCO and APl and does not have a current airline channel arrangement with Travelport.
“Passive” means a reservation booked outside of the Travelport System with a Vendor, or through a booking application, which is then placed into the Travelport System.
“Personal Data” has the meaning set out in the applicable Data Protection Laws.
“PNR” means a passenger name record created in the Travelport System that includes a reservation for travel-related goods and services.
“Products and Services” means all products, software (including new releases), functionality and features, support, the Travelport System, Travelport API and any other products or services provided by Travelport to Subscriber under this Agreement.
“Product Data” means data (which may include the identity of Subscriber) which is extracted from the Travelport System by the Travelport Group Companies, but which does not contain Personal Data.
“Segment” means a reservation made by Subscriber in the Territory directly in the Travelport System which:
(a) results in a fee payable and paid by the Vendor to Travelport and/ or a Travelport Group Company, which is not subsequently clawed back;
(b) is not cancelled;
(c) is not speculative, duplicative, fraudulent or fictitious or deemed by Travelport, in its discretion, to be an improper use of the Products and Services; and
(d) is not Ineligible.
“Segment Goal” means, where applicable and as the context requires, the Annual Segment Goal and/or the Term Segment Goal.
“Segment List” means the list, as may be updated by Travelport from time to time and which may be made available to Subscriber upon request, specifying Ineligibles and other Segment types that are not eligible to receive Per-Segment Incentive to the extent that it is relevant and where such Ineligible or Segment type comprise at least 10% of Subscriber’s average annual Segment volumes.
“Shopping Message” means any shopping Message determined as such by Travelport, including Travelport API generated shopping or flex shopping transaction request, and terminal generated fixed date shopping transaction request FQBB / FQBBK / FQB / FS, made to the Travelport System by Subscriber whether manually or by way of any automated programs. The number of Shopping Messages will be determined solely by Travelport in accordance with Travelport’s standard methodology and records.
“Sub Agent” means a sub agent that the parties mutually agree in writing is subject to this Agreement.
“Subscriber Group Company” means any person or entity Controlling, Controlled by or under common Control with Subscriber, and ‘Subscriber Group’ will be construed accordingly.
“Term Segment Commitment” means, where applicable, the volume of segments set out on the row titled term segment commitment of the Segment Commitment table in the Commercial Terms Attachment.
“Term Segment Goal” means, where applicable, the volume of segments set out on the row titled term segment goal of the Segment Goal table in the Commercial Terms Attachment.
“Ticketed Passive” means a Passive for which a valid ticket has been issued using the Travelport System.
“Travelport API” means the API or combination of APIs elected for use by Subscriber.
“Travelport Group Company” means any person or entity Controlling, Controlled by or under common Control with Travelport, and ‘Travelport Group’ will be construed accordingly.
“Travelport System” means the global distribution system and related processes, methods, firmware, software and hardware owned and operated by Travelport or a Travelport Group Company used to (i) collect, store, process, display, and distribute information concerning travel-related goods and services; and (ii) enable users to, among other things, make reservations for, purchase or obtain tickets for such goods and services.
“VAT” means value-added tax, goods and services tax, sales tax, consumption tax or any other tax of a similar nature as applicable in the relevant jurisdiction.
“Vendor” means a vendor of travel-related products and/or services of any sort, including but not limited to an airline, hotel, rail operator, tour company, car rental company, travel insurance or cruise operator or other content provider that may participate in the Travelport System or make its content available via the Products and Services at any time.
“Year” means the period of 12 months from the Effective Date and from each anniversary of the Effective Date thereafter.
2. Access to and Use of the Products and Services
2.1 In accordance with and subject to this Agreement and any operating instructions given from time to time by Travelport, Travelport grants to Subscriber a limited, revocable, non-exclusive, non-transferable right to access and use the Products and Services in the Territory for the purpose of operating Subscriber’s travel business. Travelport (or its authorized third party licensor, if applicable) will at all times retain all right, title and interest in and to the Products and Services and to any Intellectual Property Rights in respect thereof.
2.2 If Subscriber gains access to the Products and Services prior to the Effective Date and where Subscriber does not have a right to access the Products and Services granted under a pre-existing subscriber agreement, then Subscriber agrees that it shall be subject to the obligations set out herein as if such access had occurred subsequent to the Effective Date but Subscriber acknowledges no Per-Segment Incentives will be payable on and Travelport will not count Segments generated prior to the Effective Date.
2.3 Subscriber acknowledges and agrees that it will:
(a) to the extent applicable, install the Products and Services itself;
(b) prevent any unauthorized access to the Products and Services;
(c) not modify, enhance, reverse compile or combine or incorporate in any other computer program or software the whole or any part of the Products and Services;
(d) not make any copies of the Products and Services or any part thereof including any documents relating to them (except as is reasonably necessary for security purposes or as required by applicable law and provided that Subscriber reproduces and includes on all such copies any copyright or trademark notices or any other indication of the rights of Travelport, any Travelport Group Company or any other person. Such copies shall be the property of Travelport and this Agreement shall apply to all such copies as it applies to the Products and Services);
(e) not copy, store, archive, sell, or create a database of data or information obtained via the Products and Services (including the Travelport API), in whole or in part, directly or indirectly, except that Subscriber may store such data or information in a secure, non- public, temporary cache, for a period not to exceed sixty (60) days, solely for the purpose of using such data or information to support a traveler’s specific request;
(f) not enter Passives into the Travelport System when no corresponding space is reserved within the transporting Vendor’s internal reservation system and Subscriber will remove all passive bookings from the Travelport System if the corresponding space is cancelled by any means with the applicable Vendor;
(g) not use the Products and Services in such a way that, in Travelport’s reasonable opinion, has or is likely to have an adverse effect on Travelport, including but not limited to making excessive Message transactions (such determination to be made solely by Travelport); accessing the Travelport System outside normal commercial use; making or submitting excessive cancellations, creating any data which is excessive in size and content; or submitting multiple or repeat bookings which in Travelport’s opinion, constitute an excessive use of the Travelport System;
(h) not provide, sub-license or otherwise make available the Products and Services to any third party or person other than Subscriber’s employees, agents or other personnel and Subscriber will procure that such employees and personnel shall use and access the same in accordance with the provisions of this Agreement only;
(i) ensure that the Products and Services are not used to transfer, provide access to or redistribute any data to any third party; or for any other purpose not authorized by Travelport;
(j) not directly, indirectly, manually, or through robotic devices access or use, or allow any third party to access or use, the Travelport System and the Products and Services to train anyone other than Subscriber’s employees or agents; or transact, create, process, or service any reservations outside the Travelport System; or develop, test, market, use, or permit any third party to use any software applications, including without limitation, booking engines, corporate booking programs, metasearch engines, products providing flight information, fares and pricing tools, caching products, travel agent desktop tools, airline hosting applications, or any technology, product or service;
(k) comply with IATA Codes, the BSP and any applicable rules or policies of the Vendors accessed by Subscriber; and
(l) at all times comply with the Payment Card Industry Data Security Standards.
2.4. Travelport may withdraw, modify or replace (collectively, “Update”) any or all of the Products and Services at any time. Subscriber’s use of an Update constitutes Subscriber’s agreement to Travelport’s terms and conditions pertaining to such use including the fees, if any, for such usage. Travelport may limit and/or interrupt Subscriber access to the Products and Services to carry out scheduled or unscheduled maintenance work or Updates. Subscriber will install and implement (at its sole cost) any Updates within 30 days of release by Travelport.
2.5. Travelport may immediately suspend or limit Subscriber’s access to specific Vendor content upon request by the Vendor. In such case Travelport shall have no liability to Subscriber for any loss, cost, claim, damage, expense or other harm suffered by Subscriber as a result of such suspension or limitation.
2.6. Travelport may terminate or cease in whole or in part provision of particular content types in the Travelport System at any time.
2.7. The Products and Services (or any part thereof) may be provided pursuant to a license agreement between Travelport and a third party software provider and in such cases, Subscriber must agree to any relevant additional terms and conditions applicable to those Products and Services before being granted access.
2.8. Products and Services may be provided with preconfigured workflows and rules which may be revised by Subscriber. If Subscriber requests consulting and configuration services from Travelport then Subscriber agrees to pay Travelport’s then current fees for such services as shall be notified to Subscriber at such time.
2.9. If Subscriber’s business/operating model is such that it may make bookings in one currency and issue tickets in another currency then Subscriber authorizes Travelport to undertake the required currency conversion at the applicable rate of the Travelport System and any risk with respect to the currency conversion (including but not limited to change in currency rates and agency debit memos) shall remain with Subscriber.
2.10. Subscriber will use the Products and Services in a fair and reasonable manner and will adhere to the Fair Usage Criteria. If, in Travelport’s reasonable opinion, Subscriber is using or attempting to use the Products and Services at excessive levels (such determination to be made solely by Travelport) or Subscriber does not adhere to the Fair Usage Criteria then Travelport may (i) communicate with Subscriber to establish the reasons for the high usage and how the usage patterns and habits can be modified to reduce the use of the Products and Services to reasonable levels; (ii) reduce or restrict Subscriber’s capability to access any or all of the Products and Services; and/or (iii) apply excess Message fee charges to Subscriber’s next invoice.
2.11. Notwithstanding any other clauses in this Agreement, Subscriber agrees that it must not use the Travelport System to make any air Segment bookings inside Mainland China.
3.1. Within 30 days following the end of each calendar month, Travelport will calculate the number of reservations generated by Subscriber during a calendar month and send to Subscriber a calculation showing such reservations which qualify for payment under this Agreement in such month.
3.2. If Subscriber is eligible to receive payment under this Agreement, following the delivery of the calculation by Travelport in Clause 3.1:
(a) Subscriber shall issue a valid tax invoice (which must be received by Travelport within 3 months of the date Subscriber receives the applicable calculation) for the amount set out in the calculation and Travelport will make payment within 60 days following receipt of the invoice; or
(b) Travelport will issue a self-billed invoice for the payments to be made to the Subscriber showing the name, address and tax number of Subscriber, together with all other details which constitute a valid tax invoice (“Self-Bill Invoice”) and will make payment within 60 days of the end of such calendar month. For the avoidance of doubt, Subscribers located in the United States are deemed to receive Self-Bill Invoices.
3.3. Notwithstanding anything to the contrary set out in the Commercial Terms Attachment (if any), Travelport may at its discretion include in the Self-Bill Invoice any Customer Loyalty Payments, Funds, Productivity Incentive and/or any other incentive or payment due or earned by Subscriber.
3.4. In the event that Travelport issues Self-Bill Invoices to Subscriber, Subscriber acknowledges and agrees that it will:
(a) provide its correct VAT registration number (if any) to Travelport prior to signature of this Agreement;
(b) accept Self-Bill Invoices raised by Travelport on Subscriber’s behalf during the Term;
(c) not raise invoices for payments it is eligible for;
(d) notify Travelport in writing within 15 days from receipt of the invoice issued by Travelport, if, for whatever reason, Subscriber rejects that invoice. If Travelport does not formally receive such notice, the invoice will be deemed to have been accepted by Subscriber; and
(e) notify Travelport immediately in writing if Subscriber:
(i) changes its tax registration number;
(ii) changes its bank account details;
(iii) ceases to be VAT registered; or
(iv) becomes VAT registered, in which case it shall provide that number to Travelport immediately.
3.5. If Per-Segment Incentive is based on annual Per-Segment Incentive Level tiering, Per-Segment Incentive Payments will be paid at the tier rate corresponding with the number of Segments generated by Subscriber in that Year to date. Each time, during a Year, the total number of Segments generated by Subscriber means the Per-Segment Incentive should be paid at a higher rate based on the Per-Segment Incentive Level achieved by Subscriber, then Travelport shall calculate and credit Subscriber with the additional amount owing for Segments previously generated.
3.6. If Travelport pays and/or counts a reservation made by the Subscriber as a Segment but such reservation is subsequently cancelled and/or fails to meet the criteria required for it to qualify as a Segment (as defined under this Agreement), then the Subscriber shall repay any incentive received in relation to such reservation and agrees that such reservation shall be excluded for the purposes of any Segment counts under this Agreement and agrees to retroactive calculations, including of incentives, resulting from such revised Segment count. This Clause 3.6 will survive termination of this Agreement.
3.7. Travelport may make payments in any currency. All currency conversions will be made at the Reuters mid spot rate of exchange on the day of payment or such other rate of exchange as may be used by Travelport in its discretion.
3.8. If the Travelport contracting entities are Travelport International Operations Limited and Travelport LP, payment for any Per-Segment Incentives for Segments which are generated in the United States of America or Canada will be made by Travelport LP, and payment for any Per-Segment Incentives for Segments which are generated in any other Territory will be made by Travelport International Operations Limited.
3.9. Subject to Clause 3.10 below, payments made by Travelport under this Agreement are expressed exclusive of VAT and any other tax.
3.10. Notwithstanding Clause 3.9 above, if a Travelport contracting entity is Travelport International Operations Limited and Subscriber is registered outside of the United Kingdom, all payments made by Travelport under this Agreement are expressed inclusive of VAT and any other tax and Travelport shall have no obligation to pay any amounts except as required by the relevant local laws and subject to the issuance and receipt of a valid tax invoice.
3.11. If Travelport is required by any law to make a deduction or withholding from any amount payable to Subscriber under this Agreement, Travelport shall pay the amount net of the required deduction or withholding. Travelport shall pay the required amount deducted or withheld to the relevant governmental authority and from time to time, upon request, provide Subscriber such evidence of the relevant deduction or withholding as Subscriber may reasonably require.
3.12. If Travelport has reasonable grounds to believe Subscriber is in breach of this Agreement then in addition to any other remedies available, Travelport shall have the right to immediately suspend any and all payments to Subscriber until the breach has been remedied to Travelport’s reasonable satisfaction.
3.13. Per-Segment Incentive payments and Segment calculations will be based on Travelport’s books and records. Subscriber consents to any retroactive adjustment by Travelport of incorrect Segment counts. Subscriber may dispute the value of any payments or Segment counts in writing within 30 days of Travelport’s calculation, providing to Travelport, on demand, its records of all Segments in respect of which it is claiming payments together with records evidencing the total number of Segments generated.
3.14. If Subscriber’s Segment Commitment is based on Subscriber generating a percentage share of its total reservations on the Travelport System, Travelport shall determine Subscriber’s total number of GDS reservations and percentage share generated on the Travelport System using industry-standard marketing information data tapes (MIDT) (or other industry-standard data of comparable reliability) and based on Travelport’s records and standard method of calculation in place from time to time.
3.15. Travelport shall have no liability to make payments to Subscriber for any Segments for which (i) Travelport or a Travelport Group Company has received a valid claim for payment from any other customer of Travelport; or (ii) the Segment resulted from Subscriber issuing tickets in connection to bookings made by another travel agent. Such Segments shall not be included for any Segment counts, including calculation of Segment Commitments or the Term Segment Commitment, Segment Goal, Per-Segment Incentive tiering, Productivity Incentive Target or any other thresholds relating to one off or advance payments. Subscriber agrees to indemnify Travelport and any Travelport Group Company for all and any costs, claims, losses, liabilities and expenses (including legal expenses) that Travelport (or a Travelport Group Company) may incur as a result of a claim from another Travelport customer for payment of Per-Segment Incentives linked to Segments for which Travelport has already made payment to Subscriber. In addition, Travelport shall offset all payments received by Subscriber for those Segments from Subscriber’s next invoice.
3.16. Subscriber acknowledges that Vendors may be added, removed or change their level of participation in any of the Products and Services, including the Travelport System. Travelport reserves the right to (i) modify the definition of Segment and/or any Segment or reservation type; (ii) add or remove Vendors and/or Segment types to or from the Segment List; (iii) establish additional segment types; and/or (iv) reduce incentives paid on and/or cease to count specified Vendor content, each from time to time.
3.17. Where a Per-Segment Incentive rate is identified as being for a specific classification of Segment, such as air; car; hotel; rail; cruise; or tour, then such Per-Segment Incentive rate only applies to eligible Segments within that classification. Subscriber shall only be entitled to Per-Segment Incentives where such incentives are explicitly set out and identified in the Commercial Terms Attachment.
3.18. Rail Segments, cruise Segments and tour Segments shall neither be eligible for any Per-Segment Incentive nor be included for the purposes of any Segment count under this Agreement unless they are specifically expressed in the Per-Segment Incentive table in the Commercial Terms Attachment as eligible for payment and/or count.
4.1. Charges are invoiced monthly in arrears unless stated otherwise in the Products and Services Attachment. In consideration of the Products and Services provided to Subscriber by Travelport under this Agreement, Subscriber will pay the Charges within 30 days of the invoice date.
4.2. The Charges are expressed exclusive of any applicable VAT or other tax, for which Subscriber shall be additionally liable.
4.3. If, in the Products and Services Attachment, product quantity is subject to change on a month to month basis (including, but not limited to, calculation on a per DA, PCC, licence, user or transaction basis) the product quantity calculations will be based on Travelport’s books and records in accordance with Travelport’s standard method of calculation in place from time to time.
4.4. Any products and services supplied by Travelport to Subscriber for which a charge is not expressly listed in this Agreement shall be charged by Travelport at its standard rates in place at the time of supply.
4.5. Subscriber agrees that Travelport may introduce a charge for:
(a) new products and/or services;
(b) Products and Services for which it has not previously charged;
(c) Passives, which shall apply regardless of whether such Passives are subsequently cancelled, deleted or removed from the Travelport System;
(d) access to certain Vendor content, including introducing a charge per booking made on certain Vendors through the Travelport System; and/or
(e) excessive cancelled bookings,
at any time provided not less than 30 days’ prior written notice is given to Subscriber, or on such lesser notice period as may be specified elsewhere in this Agreement.
4.6. Subscriber may dispute a Travelport invoice in writing no later than 30 days after the invoice date. Subscriber waives any right to dispute an invoice after such period has expired.
4.7. Subscriber agrees that Travelport may engage third parties to recover outstanding invoices and may provide Subscriber’s details to such third parties. Subscriber shall be liable for all costs incurred by Travelport in enforcing payment of its invoices, including legal costs, collection agency costs and court fees. Subscriber consents to Travelport undertaking on-going credit monitoring and financial due diligence reviews of Subscriber during the Term.
4.8. Without prejudice to Clause 16 Subscriber’s past due balances will accrue interest at a rate of 1½% per month compounded (19.56% per year) or the maximum rate permitted by law, whichever is less, from the due date until payment is made in full.
4.9. Travelport shall be entitled, but not obliged, at any time to set off (i) any Charges or liability of Subscriber to Travelport against any liability of Travelport (or any Travelport Group Company) to Subscriber; and (ii) any charges or liability of Subscriber Group Companies or sub agents to Travelport against any liability of Travelport (or any Travelport Group Company) to Subscriber, and may in each case convert or exchange any currency for such purpose.
4.10. Except as may be required by applicable law, all amounts payable to Travelport under this Agreement, whether for Charges, shortfall, Claw Back or otherwise as a result of claims by Travelport against Subscriber under Clause 11 or otherwise, are net of any deductions or withholding taxes of any kind. If Subscriber is required by any applicable law to make a deduction or withholding from or in respect of any amount payable under this Agreement to Travelport, the amount paid shall be increased to the extent necessary to ensure that, after making all required deductions, Travelport receives an amount equal to the sum that would have been received had no such deductions or withholdings been required and Subscriber shall then pay the amount due to the relevant tax authority in a timely manner. Upon request, Subscriber shall promptly deliver to Travelport a certified copy of the tax documents attesting to the collection of such deduction or withholding tax.
4.11. Subscriber will pay when due, or, at Travelport’s election, reimburse and indemnify and hold Travelport and its owners harmless from and against, all sales, use, excise, real property, withholding, digital services and other taxes and any and all domestic and foreign duties or import, export, or license fees, howsoever designated (together with any related interest or penalties not arising from fault on the part of Travelport), imposed by any tax authority, or governmental agency or other similar bodies arising out of or in connection with this Agreement. Subscriber will reimburse Travelport for all such taxes, fees and charges within 30 days of the date of Travelport’s invoice for such amounts. Upon request of Travelport, Subscriber will provide reasonable assistance to Travelport in the filing of any documents or the making of any statement in connection with the recovery of any taxes referred to in this Clause 4.11.
4.12. Notwithstanding the currency set out in this Agreement, Travelport may bill the Charges in any currency. All currency conversions will be made at the Reuters mid spot rate of exchange on the day of invoice or such other rate of exchange as may reasonably be used by Travelport in its discretion.
5. Airline Channel Content
5.1. If Travelport agrees to provide Subscriber access to Airline Channel Content this Clause 5 will apply.
5.2. Subscriber represents and warrants that it has entered into Airline Channel Agreement(s) with the Airline Channel Participant(s) to access and book Airline Channel Content on such Airline Channel Participant(s).
5.3. Subscriber shall provide Travelport with as much advance notice as is reasonably possible of entry into a new airline channel agreement or termination or expiry of an existing Airline Channel Agreement. If Subscriber enters into a new Airline Channel Agreement, Subscriber shall comply with Travelport’s requirements relating to such new Airline Channel Content, including entering into such documentation as may be required by Travelport in its sole discretion, at least 15 days prior to new Airline Channel Content being made available to Subscriber on the Travelport System. New Airline Channel Content will first be made available to Subscriber on the first of a month.
5.4. Where applicable, an Airline Channel Participant will provide Travelport with a comprehensive list of Subscriber IATA numbers, name identifiers and PCCs (collectively “Identifiers”) and the ability to book Airline Channel Segments will be limited to those Identifiers. Subscriber will be responsible for ensuring that applicable Airline Channel Participants have a complete list of related Identifiers and the Identifiers only apply to the Airline Channel Territory.
5.5. Travelport may terminate a Subscriber’s ability to book Airline Channel Segments on any Airline Channel Participant(s) on written notice.
6. Group Companies and Sub Agents
6.1. The terms of this Agreement shall not apply to Subscriber Group Companies or sub agents unless otherwise agreed in writing. The inclusion of any Included Subscriber Group Companies or Sub Agents shall be subject to Travelport’s written consent and subject to that company having met any prior contractual obligations under any previous agreements with Travelport or a Travelport Group Company.
6.2. If the parties agree to include Included Subscriber Group Companies and/ or Sub Agents under this Agreement, references to Subscriber shall also be construed to include reference to such Included Subscriber Group Companies and/ or Sub Agents as appropriate, except in respect of each party’s respective payment obligations.
6.3. For the avoidance of doubt, the parties agree that only Segments generated by Subscriber, Included Subscriber Group Companies and/ or Sub Agents shall be included for the purposes of Per-Segment Incentive payments and calculation of Segment counts provided that such Included Subscriber Group Companies and/ or Sub Agents are not in breach of the terms of this Agreement, or any other agreement with a Travelport Group Company.
6.4. Subscriber shall procure the compliance of the Included Subscriber Group Companies and/ or Sub Agents with the terms and conditions of this Agreement as if they were each a party to this Agreement. For the purposes of this Agreement any action or breach by an Included Subscriber Group Company and/ or Sub Agent shall be deemed to be the action or breach of Subscriber.
6.5. Without prejudice to any other rights Travelport may have, Travelport may immediately withdraw an Included Subscriber Group Company’s or Sub Agent’s access to any or all of the Products and Services should it be in breach of this Agreement, any agreement between Travelport or a Travelport Group Company and that Included Subscriber Group Company or Sub Agent, or if it ceases to be an Included Subscriber Group Company or Sub Agent (as defined in this Agreement). If access is withdrawn, Subscriber will procure that all use of the Products and Services by such Included Subscriber Group Company or Sub Agent ceases immediately.
6.6. Unless otherwise agreed in writing, Subscriber shall be liable for any and all charges, expenses or fees incurred by Included Subscriber Group Companies and Sub Agents.
6.7. Subscriber acknowledges and agrees that Travelport shall be under no obligation to accept any request for additional Subscriber Group Companies or sub agents to be added as Included Subscriber Group Companies or Sub Agents and any such decision shall be at Travelport’s discretion.
6.8. If an Included Subscriber Group Company ceases to be a Subscriber Group Company, (“Former Included Company”) then Travelport shall cease including Segments generated by that Former Included Company for the purposes of this Agreement, from the date on which such company ceased to be a Subscriber Group Company. Subscriber shall advise Travelport as soon as reasonably possible prior to such a change. If Travelport has already made any payments relating to Segments generated by a Former Group Company, Subscriber shall promptly repay such amount within 15 days of Travelport’s request for repayment.
6.9. Where Subscriber facilitates access to the Travelport System to Included Subscriber Group Companies and/or Sub Agents and/or any third party, Subscriber shall complete all necessary due diligence on such person or entity to ensure that such provision of access shall not constitute a violation of any applicable trade, embargo or economic sanctions laws and regulations implemented at the local, regional, and international level. Subscriber shall continually monitor the status of each entity or person to which it has facilitated access and in the event that such entity’s or person’s status changes, resulting in its continued usage constituting a violation of sanctions laws and regulations, it shall immediately inform Travelport and take all steps necessary to terminate access. Furthermore, such due diligence should include assessment of the Included Subscriber Group Companies and/or Sub Agents and/or any third party’s compliance with anti-bribery and anti-corruption laws, including but not limited to, United States Foreign Corrupt Practices Act 1977, the United Kingdom Bribery Act 2010, the United Kingdom Criminal Finances Act 2017 or any other applicable anti-bribery or anti-corruption law.
7.1. If Subscriber elects to use a Travelport API, this Clause 7 shall apply.
7.2. Subscriber will pay to Travelport the API Charges set out in the Products and Services Attachment based on the Look-to-Book Ratio level assigned to Subscriber in the Products and Services Attachment or as may be amended from time to time in accordance with the Products and Services Attachment. Certain system entries or requests may generate multiple Messages. Messages will be measured on a calendar month basis in accordance with Travelport’s standard methodology and records. Subscriber may not carry allowed Messages forward or backward to any other calendar month.
7.3. Subscriber will receive credentials to access the API administrative portal. Through this portal, Subscriber may self-service the activation of available suppliers. The API administrative portal is updated with the Vendors available through the Air Content Hub / Service (“ACH/S”) and Rail Content Service (“RCS”). Subscriber will pay the applicable charges for self-activated content.
7.4. Subscriber represents that it is authorized to make reservations and book Vendor content in the ACH/S, RCS and any other content hub available via the Travelport API. Travelport may evaluate Subscriber’s credentials to book such Vendor(s) and refuse access to Subscriber if Subscriber’s credentials are not validated to Travelport’s reasonable satisfaction. Subscriber will comply with any rules and restrictions that may be imposed by Vendor’s on Vendor content made available through the Travelport API.
7.5. Subscriber will not, without Travelport’s prior written consent, allow third party access to the Travelport API, or transfer or redistribute to any third party any data, or copy of any data, accessed through use of the Travelport API. Should Travelport permit Subscriber to allow a third party developer to access and use the Travelport API on Subscriber’s behalf, Subscriber waives the right to assert any claim against Travelport related to such third party’s access and will indemnify and hold Travelport harmless from all liabilities, costs and expenses (including reasonable legal fees) resulting from or related to such third party developer’s access and use of the Travelport API. Travelport may withdraw its authorization to allow a third-party developer’s access to Subscriber’s Travelport API credentials upon 90 days’ prior written notice to Subscriber.
7.6. Subscriber acknowledges that Travelport has the right to evaluate each website and/or application, at any time, to certify that it conforms to Travelport’s requirements for resource consumption and may charge certification fees. If Subscriber makes material modifications to its website or application, then Travelport may invalidate credentials, re-perform its certification tests, issue new credentials and charge additional certification fees (each as appropriate).
7.7. Subscriber may activate, set up, or modify content or shopping levels via the API administrative portal or by request to Travelport. Activation or change is effective once Subscriber receives new credentials and subject to Travelport’s standard charges in place from time to time.
7.8. Subscriber will provide Travelport with prior written notice of: (i) any event that may have a material increase on the number of Messages made by Subscriber through the Travelport API, including, but not limited to, new code or changes to existing code launched by Subscriber, Subscriber’s entrance into new markets and Subscriber’s advertising/marketing campaigns; and/or (ii) Subscriber’s intention to include its PCC(s) in meta-searches operated by third parties. If Subscriber fails to provide such prior written notice, Travelport may suspend or limit Subscriber’s access to the Products and Services or any part thereof until Travelport resolves any system capacity issues caused by Subscriber’s unanticipated increase in Message volume.
7.9. Travelport will provide its standard help desk support to Subscriber for the Travelport API. Support fees set out in the Products and Services Attachment entitle Subscriber to 40 hours of support per Year. Should Subscriber engage a third party developer approved by Travelport to develop an application for Subscriber for use in conjunction with the Travelport API, the third party developer will instead provide support to Subscriber.
7.10. The Travelport API is Travelport’s standard offering. If Subscriber downloads additional features and functionality from the Travelport download site, accessible only through use of the login information provided by Travelport, Subscriber will pay Travelport’s standard charges in place at the time.
7.11. Travelport may, in addition to any other remedies available, immediately suspend or terminate Subscriber’s access to the Travelport API if, in Travelport’s reasonable belief, Subscriber is in breach of this Clause 7 or where the actions or usage by Subscriber of the Travelport API causes or is reasonably likely to cause adverse disruption to the Travelport System, or where Subscriber has not remedied the breach a reasonable time after receiving notice from Travelport specifying the breach and requiring it to be remedied.
8. Third Party Products
8.1. Subscriber acknowledges and agrees that Travelport has no liability whatsoever with respect to any product, content (including insurance content), software or service that is not owned by Travelport and is used by Subscriber in conjunction with the Products and Services (“Third Party Product”).
8.2. Subscriber is responsible for contracting directly with Third Party Product providers as required and shall fully indemnify Travelport for any claims, costs, demands or expense that Travelport might incur as a result of Subscriber’s failure to comply with its obligations in relation to Third Party Products.
8.3. Any support or assistance provided by Travelport in connection with Third Party Products, software and/or equipment shall be entirely at Subscriber’s risk and Travelport shall have no liability to Subscriber with respect to such support or assistance. Travelport shall have no liability or responsibility for upgrading any Third Party Products which may be provided together with any Products and Services.
8.4. Subscriber shall ensure that any Third Party Products meet Travelport’s minimum technical standards for access to and use in association with the Products and Services. If, in Travelport’s reasonable opinion, any Third Party Product does not meet Travelport’s minimum technical standards, Travelport will notify Subscriber of the reasons in writing and may suspend access to the Products and Services until Travelport is reasonably satisfied that such Third Party Product meets Travelport’s minimum technical standards.
8.5. If Subscriber’s use of a Third Party Product adversely affects the use of the Travelport System by any other party, then Travelport may require Subscriber to immediately discontinue its use of such Third Party Product until Subscriber can demonstrate that it has resolved the adverse effect to Travelport’s reasonable satisfaction.
8.6. Subscriber shall at all times be responsible for its Third Party Products including the obtaining, installation, operation, support and maintenance thereof.
8.7. Subscriber warrants that it has obtained all necessary consents, approvals and licenses for the use of the Third Party Products and the use of such Third Party Products will not violate any Intellectual Property Rights belonging to any third party.
9. Security Measures
9.1. Subscriber will implement and maintain appropriate security measures for its operations in accordance with technological developments and evolving security needs against the destruction, loss or unauthorized alteration of the Products and Services. Appropriate security measures include, without limitation, establishing a security policy for its computer network, preventing unauthorized access to its computer systems, implementing administrative security controls, installing firewalls in its computer network, protecting its computer resources from insider abuse, administrative procedures to ensure that computer system access is given to only authorized users and is promptly withdrawn from terminated employees or other persons who are no longer authorized, establishing a single point of contact for responses to security incidents, adhering to current payment card industry security requirements, and monitoring the effectiveness of its computer network security.
9.2. Subscriber will not, and will not assist others in efforts to, subvert, compromise, or otherwise interfere with the operations or security of any communications network or computing facility of Travelport.
9.3. Subscriber will cooperate with Travelport in investigating and prosecuting any security breaches that affect or threaten Travelport’s security.
10. Warranties and Remedies
10.1. Each party represents and warrants that it has the requisite authority and power to enter into this Agreement and perform its obligations hereunder.
10.2. Travelport represents and warrants that it (or a Travelport Group Company): (i) is the owner or authorized licensee of the software contained in or provided with the Products and Services; and (ii) has the right to provide access to the Products and Services to Subscriber. This warranty will be null and void if Subscriber: (i) fails to use the Products and Services in accordance with this Agreement and the guidelines provided to Subscriber by Travelport from time to time; (ii) fails to use required Updates; or (iii) makes any unauthorized change to the Products and Services.
10.3. Travelport will defend and hold Subscriber harmless against any third party claim due solely to an alleged breach of Clause 10.2, provided that Subscriber gives Travelport prompt written notice of the claim, Travelport has sole authority to defend or settle the claim, and Subscriber reasonably cooperates in Travelport’s defense of the claim. If Travelport is found to be in breach of Clause 10.2, Travelport will, at its option and expense, modify or replace the component of the Products and Services causing the breach, or obtain the right for Subscriber to continue to use the component of the Products and Services, as applicable.
10.4. The remedies available under this Clause 10 are exclusive of any other remedy, now or hereafter existing at law, in equity, by statute or otherwise for breach of Clause 10.2.
11.1. In no event will a party be liable for any indirect, incidental, consequential, special, punitive or exemplary damages or losses, or loss of use, loss of or damage to records or data, cost of procurement of substitute goods, services or technology, loss of anticipated savings, loss of goodwill, loss of contracts, loss of revenue and/or profits, sustained or incurred and whether or not such damages were foreseen or unforeseen.
11.2. If Travelport is prevented or delayed from performing its obligations under this Agreement by reason of any act or omission of Subscriber, then Subscriber shall pay to Travelport all reasonable costs, charges and losses sustained or incurred by Travelport as a result.
11.3. In no case shall the liability of Travelport to Subscriber arising out of or connected with this Agreement exceed the total sum of USD 150,000 (one hundred and fifty thousand US Dollars) inclusive of all relevant charges and taxes.
11.4. All liability that is not expressly assumed in this Agreement is hereby excluded to the fullest extent permitted by law.
11.5. The limitations set out in this Clause 11 will apply regardless of the form of action, whether under statute, in contract, tort, including negligence, or any other form of action.
11.6. For the purposes of this Clause 11, a reference to Travelport includes Travelport and the Travelport Group Companies, and its and their employees, agents, contractors, representatives and suppliers.
12. No Representations
12.1. Except as expressly provided in this Agreement, Travelport makes no representation or warranty of any kind, and to the maximum extent permitted by law, expressly disclaims and excludes all conditions, warranties, representations, undertakings and terms, whether implied, statutory, or arising out of custom, course of dealing or usage of any of the Products and Services or any Third Party Products and services, including warranties of merchantability or fitness for a particular purpose. Without limiting the generality of the foregoing, Travelport makes no representation or warranty (i) that the Products and Services will meet Subscriber’s requirements or will be uninterrupted or error-free; (ii) with respect to any content, Vendor, service or any other information provided to Subscriber in the Travelport System; and (iii) with respect to the continued availability of any Vendors or content in the Travelport System or any Products and Services.
12.2. Each party acknowledges and agrees that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, but nothing in this Agreement shall affect the liability of a party for fraudulent misrepresentation.
Subscriber will indemnify, defend, and hold harmless the Travelport Group, as well as its affiliates and their respective officers, directors, employees, agents, successors, and assigns (each a “Travelport Indemnitee”) from and against any and all third party losses, costs, damages, claims, demands, expenses and liabilities, including reasonable legal fees, costs and related expenses, that may be incurred by a Travelport Indemnitee as a result of Subscriber, Subscriber Group Company or Sub Agent’s (i) misuse of the Products and Services; (ii) modification of the Products and Services; (iii) failure to comply with any obligations under this Agreement; (iv) provision of travel services and/or products to Subscriber, Subscriber Group Company or Sub Agent’s customers; (v) use of a Third Party Product; or (vi) provision of access to any Products and Services to a third party.
14. Intellectual Property
14.1. Except as expressly provided in this Agreement, Subscriber acknowledges and agrees that it does not acquire any Intellectual Property Rights, proprietary rights or other rights, title or interest in, or to:
(a) the data stored in or accessed via the Products and Services; or
(b) any Products and Services, documentation, trademarks or service marks of any of the Travelport Group Companies (or authorized third party licensors, if applicable); or
(c) any related materials used in connection with the Products and Services.
14.2. Subscriber agrees and acknowledges that it shall have no right to use for any purpose any trademark (whether in word and/or logo device form) or any other Intellectual Property Rights of Travelport without the prior written consent of Travelport and then only in such form and upon such terms as Travelport may from time to time specify in writing.
14.3. Subscriber warrants, represents and undertakes that the Travelport Group Companies will have the right to extract, use and send any data that Subscriber enters into the Travelport System, to the participating Vendor in the relevant transaction. Subscriber further warrants, represents and undertakes that the Travelport Group Companies will not be in breach of any applicable and relevant laws (including but not limited to Data Protection Laws) by such use and processing of this data.
14.4. Subscriber acknowledges and agrees that Travelport has the right to use and extract Product Data and to disclose (including sell), send, and otherwise make available Product Data to third parties.
14.5. Without prejudice to the generality of this Clause 14 Subscriber hereby warrants, represents and undertakes that any data supplied by it to Travelport will not contain anything obscene, offensive or defamatory, or which is in breach of any applicable laws or regulations.
15. Data Protection
15.1. The parties acknowledge that in order to perform the purpose and obligations set out in this Agreement, they must transfer Personal Data between them. The parties acknowledge and agree that in performing their obligations set out herein Subscriber is acting as a Data Controller and that, unless notified otherwise by Travelport, Travelport is acting as a Data Controller.
15.2. The parties shall each comply with the Data Protection Laws. Without limiting the generality of the foregoing:
(a) the parties each shall implement and maintain appropriate technical and organizational measures to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and which provide a level of security appropriate to the risk represented by its processing of Personal Data and the nature of the data to be protected. Each party will have in place procedures so that any third party it authorizes to have access to the Personal Data, including processors, will respect and maintain the confidentiality and security of the Personal Data. Each party shall maintain adequate records of its processing activities and make available such records to the other to the extent necessary for compliance or regulatory purposes.
(d) Subscriber will be the primary point of contact for any Data Subject requests. Each party shall reasonably assist the other in handling and responding to any such request. Specifically, where a Data Subject has requested for their data to be ported or deleted, Subscriber shall take all steps necessary to verify the legitimacy of the request, identify and advise Travelport of the applicable record to be ported or deleted, and coordinate the transfer or deletion with third parties.
(e) Subscriber shall not do, or cause or permit to be done, anything that may cause or otherwise result in a breach by Subscriber, Travelport or any third party of the Data Protection Laws. Subscriber shall provide notification to each Data Subject, in accordance with the Data Protection Laws, that it is a Data Controller and of the data processing activities conducted pursuant to this Agreement. It shall also advise each Data Subject that it is the primary point of contact for any Data Subject requests.
15.3. Travelport may use and disclose information included in PNRs created by Subscriber or other Personal Data as required by applicable laws or regulations, in support of government or law enforcement security initiatives, according to customary practices, and as reasonably necessary in the performance of its obligations under this Agreement.
15.4. To the extent that Personal Data is transferred outside of the European Economic Area or the United Kingdom to a Travelport Group entity located in a territory that does not have a positive adequacy rating, such transfer shall be protected under the Travelport Group’s intra-group agreement incorporating the EU Standard contractual clauses for the transfer of Personal Data to third countries (controller to controller transfers). In the event that a transfer cannot be protected under this mechanism then Subscriber shall, at Travelport’s request, enter into the EU Standard contractual clauses for the transfer of Personal Data to third countries (controller to controller transfers) with Travelport or a Travelport Group Company. In the latter case, should the EU Standard contractual clauses be superseded then Subscriber agrees to execute the replacement version as soon as practicable with Travelport or a Travelport Group Company and, in any event, prior to the expiry of any transitional period set.
16.1. Either party may immediately terminate this Agreement by giving written notice to the other party (“Defaulting Party”) if:
(a) the Defaulting Party commits any material breach of any of the provisions of this Agreement (including a breach of warranty or a failure to achieve any Segment Commitment or Segment Goal) and, if the breach is capable of remedy, fails to remedy it within 30 days after being given a written notice setting out in reasonable detail the breach and requiring it to be remedied;
(b) an encumbrancer takes possession of, or (if the Defaulting Party is a company) an administrative receiver, bankruptcy trustee, or other similar person is appointed over, any of the property or assets of the Defaulting Party;
(c) the Defaulting Party makes any voluntary arrangement with any of its creditors; or the Defaulting Party (if a company) has an administrator appointed; or any person takes any steps (including filing documents with any court of competent jurisdiction or giving notice of intention to appoint an administrator) for the purpose of placing the Defaulting Party in administration;
(d) the Defaulting Party (if an individual or firm) has a bankruptcy order made against him or it, or (if a company) becomes insolvent, goes into liquidation (except for the purposes of amalgamation or reconstruction and so that the resulting company effectively agrees to be bound by or assume the obligations imposed on the Defaulting Party under this Agreement) or seeks formal protection against creditors under any applicable law.
16.2. For the purposes of Clause 16.1(a), a breach shall be considered capable of remedy if the Defaulting Party can comply with the provision in question in all respects other than as to the time of performance (unless the time of performance is of the essence).
16.3. If Subscriber is the Defaulting Party, then Travelport may, in its sole discretion, among other actions, first suspend access to any or all of the Products and Services and/or suspend any payments due under this Agreement until such breach is remedied to Travelport’s satisfaction in an attempt to avoid termination.
16.4. Travelport may, in its sole discretion on written notice to Subscriber, terminate or suspend (which shall include suspension of Travelport’s payment obligations) this Agreement immediately if:
(a) Subscriber fails to remit any payment within five days of Travelport’s written notice;
(b) Subscriber is removed from the BSP agency list, Subscriber’s BSP agreement is terminated, or Subscriber becomes ineligible to participate in the local BSP;
(c) Subscriber’s BSP ticketing authority is removed on Vendors equivalent to 50% or more of Subscriber’s Segment volume in the preceding calendar month;
(d) Subscriber uses the Products and Services for any improper, fraudulent or illegal use or purpose or allows or enables any third party to do so;
(e) there is a change of Control of Subscriber or Subscriber merges with, and/or purchases or otherwise acquires another business or entity;
(f) Subscriber’s registration with IATA terminates, is suspended or expires for any reason, Subscriber or a Subscriber Group Company fails to comply with the IATA Codes or IATA invokes prejudiced collection of funds measures against Subscriber or a Subscriber Group Company;
(g) Subscriber or a Subscriber Group Company assigns, sells, transfers, restructures or otherwise disposes of the whole, or a part of, its business;
(h) Subscriber ceases to carry on business or in Travelport’s reasonable opinion threatens to cease to carry on business; or
(i) performance of this Agreement by Travelport or a Travelport Group Company would constitute a violation of any applicable laws or regulations.
16.5. Where Subscriber is located in the European Union or Norway and qualifies under Article 6(2) of Regulation (EC) No 80/2009 on a Code of Conduct for computerized reservation systems, either party may terminate this Agreement by giving the other party at least three months’ written notice, such notice not to expire before the first anniversary of the Effective Date.
16.6. Travelport may, on written notice to Subscriber, terminate this Agreement, or suspend payment of any amounts due, immediately if in any calendar week Subscriber fails to generate an amount of Segments which equates to:
(a) the Term Segment Commitment, if Subscriber is subject to a Term Segment Commitment, divided by the total number of weeks in the Initial Term multiplied by 0.2; or
(b) the Segment Goal in the applicable Year, if Subscriber is subject to a Segment Goal, divided by 52 multiplied by 0.2.
16.7. Upon the termination of this Agreement for any reason:
(a) Subscriber shall immediately stop using of the Products and Services and return the Products and Services and any other information or documentation provided by Travelport;
(b) Subscriber shall become immediately liable for any sum or Charges payable to Travelport (including shortfall and Claw Back) and Travelport may immediately exercise any set off;
(c) the rights granted under this Agreement shall immediately terminate and each party shall consent to the cancellation of any formal rights granted to it, or of any registration of it in any register, under or pursuant to this Agreement;
(d) any amounts not validly invoiced by Subscriber within the applicable period set out in Clause 3.2 and/or the Commercial Terms Attachment (if any) shall cease to be due and/or payable and Subscriber waives any and all rights to claim for such amounts or receive any payment for them; and
(e) notwithstanding any other provision in this Agreement, any outstanding amounts owed by Subscriber to Travelport shall be paid within 30 days of the date of notice by Travelport of its calculation of any such amounts, at or following termination.
16.8. Subscriber’s use of Products and Services following the expiration or termination of this Agreement constitutes Subscriber’s on-going agreement to pay Travelport’s then current fees for such Products and Services.
16.9. If Subscriber requests that Travelport migrate any PNRs, booking files or other records on termination then Subscriber agrees to pay Travelport’s then current data migration charges and will take all necessary steps to comply with Data Protection Laws.
17.1. Each party agrees that all Confidential Information disclosed to it by the other will be held in strict confidence, will be used only for purposes of this Agreement, will be kept in as secure a location and with as stringent precautions as the receiving party uses for its own similar information, will be provided only to those employees and agents of the receiving party who require such access for purposes of this Agreement, and will not be disclosed to any unauthorized person except with the prior written consent of the disclosing party or as may be required by applicable laws or regulations or a relevant regulatory authority.
17.2. The parties agree that Subscriber’s Confidential Information may be disclosed by Travelport to Travelport Group Companies provided Travelport uses its reasonable commercial endeavors to procure that such entities will not do anything which, if done by Travelport, would be in breach of this Agreement.
17.3. Either party may disclose publicly that the parties have entered into this Agreement and that the other party is a customer or vendor of the other party.
17.4. The parties’ confidentiality obligations under this Clause 17 will survive termination of this Agreement for a period of 3 years; provided, however, a party’s trade secrets will remain confidential indefinitely.
17.5. Confidential Information does not include any information that (i) at the time of disclosure by the disclosing party was already rightfully known by the receiving party without any obligation of confidentiality; (ii) is or becomes generally available to the public other than through any wrongful act or omission by the receiving party; (iii) is developed by the receiving party independently of any confidential information it may have received from the disclosing party; or (iv) the receiving party receives from a third party free to make such disclosure without breach of any legal obligation.
18.1. Travelport may assign, subcontract or otherwise delegate all or any of its rights or obligations under this Agreement.
18.2. Subscriber may not assign or transfer this Agreement, or any part of this Agreement, whether by merger, asset sale, transfer of ownership interests, operation of law or otherwise, without the prior written consent of Travelport, which will not be unreasonably withheld. Any purported assignment or transfer that does not comply with this Clause 18.2 will be void at its inception.
18.3. In the event of any permitted assignment, this Agreement shall continue to bind the successors in title and assigns of the parties (as applicable).
19. Force Majeure
19.1. If any act of Force Majeure occurs in relation to either party which affects or may affect the performance of any of its obligations under this Agreement, it shall immediately notify the other party in writing of its nature and extent.
19.2. Except for Subscriber’s payment obligations hereunder, neither party will be deemed to be in breach of this Agreement, or otherwise be liable to the other party, by reason of any delay in performance, or the non-performance, of any of its obligations under this Agreement, to the extent that the delay or non-performance is due to Force Majeure of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly. Payments other than Per-Segment Incentive (if any) shall not be payable by Travelport to Subscriber during a Force Majeure period, however Subscriber shall still be liable to pay Travelport any Charges and shortfall and Claw Back that is or becomes due during a Force Majeure period.
19.3. If the performance by either party of any of its obligations under this Agreement is prevented or delayed by Force Majeure for a continuous period in excess of 30 days, the other party shall be entitled to terminate this Agreement with immediate effect by giving written notice to the party so affected.
20.1. Any notice permitted or required by this Agreement must be in English and in writing. Notices may be:
(a) delivered by hand;
(b) sent by pre-paid registered post or courier to a party’s registered office address or such other address as may be notified from time to time; or
(c) sent by email.
20.2. Any notice permitted or required to Travelport must be sent to Travelport at the registered address specified in this Agreement, ATTN: Legal Department – Contract Notices or via e-mail to firstname.lastname@example.org.
20.3. Any notice sent by post in accordance with this Clause 20 shall be deemed to have been received on the third day after being posted. Any notice delivered by hand or sent by email shall be deemed to have been received on the day of delivery where such delivery takes place before 5:00 pm on a standard day of business in the territory of the recipient (“Business Day”), or on the following Business Day where delivery takes place on a day not being a Business Day or after 5:00 pm on a Business Day.
20.4. Subscriber must notify Travelport within ten days if there is any change to the Control of Subscriber or Subscriber’s name, registered office, designated address, agreed locations or other contact details.
21.1. Relationship of Parties – Nothing in this Agreement is intended or will be construed to create any agency, partnership or joint venture relationship between the parties.
21.2. No Waiver – No failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, or otherwise prejudice, affect or restrict the rights or remedies of that party in relation to the other party, and no waiver by either party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision of this Agreement. No waiver by a party shall be effective unless it is in writing and signed by the party making such waiver, and then only to the extent specifically stated in such writing.
21.3. Rights and Remedies – Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law, in equity or otherwise in this Agreement.
21.4. Enforceability – It is the express agreement of Travelport and Subscriber that if any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions will not be impaired.
21.5. Legal Fees – In the event of an action to enforce this Agreement or to seek remedies for a breach of this Agreement, the prevailing party will be entitled to receive from the other party reimbursement of its reasonable legal fees, expenses and court costs.
21.6. Counterparts – This Agreement may be executed in more than one counterpart and shall come into force once each party has executed such a counterpart in identical form and exchanged it with the other party.
21.7. Survival – Notwithstanding anything to the contrary in this Agreement, provisions which by their nature and intent should survive expiration or termination of this Agreement, including, but not limited to, confidentiality, damages, limitation of liability and software or access rights restrictions will survive.
21.8. Headings – The headings in this Agreement have been inserted as a matter of convenience and in no way define, limit, modify or enlarge the scope of this Agreement or any of the provisions in this Agreement.
21.9. Governing Language – This Agreement is executed in the English language. If any part of this Agreement is translated into any language other than English, then it is agreed that the non-English language version is for reference purposes only and the English language version shall prevail. To the extent permitted by applicable law, the parties hereby waive any rights they may have as a result of this Agreement not being executed in a non-English language as may be required by applicable law.
21.10. Date and Time – Date and time is a reference to date and time in the capital city of the country where Subscriber’s registered office is located. A period dating from a given day or the day of an act or event, is to be calculated exclusive of that day.
22. Entire Agreement
This Agreement may be executed by electronic signature and, together with these Terms and Conditions and any other attachments, constitutes the entire agreement and understanding of the parties regarding the subject matter of this Agreement and, as of the Effective Date, supersedes all prior written and oral agreements between the parties on this subject matter, except for amounts a party may owe the other under a prior agreement and any provisions of a prior agreement expressed to survive termination thereof. This Agreement may be modified only by written agreement or as otherwise expressly stated in this Agreement.
23. Compliance with Laws
23.1. Subscriber acknowledges and agrees that Travelport may amend any terms of this Agreement to the extent that such amendments are necessary to comply with any legislation or regulations applicable to this Agreement or Travelport.
23.2. Subscriber will comply with, and will not do or omit to do anything that may cause Travelport to violate, any applicable law, regulation, act or order of government, regulatory or supervisory body applicable to Travelport, its affiliates, distributors, and Subscriber that relates to its use of the Products and Services.
23.3. The parties agree that they will comply with the United States Foreign Corrupt Practices Act 1977, the United Kingdom Bribery Act 2010, the United Kingdom Criminal Finances Act 2017 and any other associated legislation and with any equivalent legislation applicable to Subscriber all as may be updated from time to time. Subscriber agrees that it shall disclose immediately to Travelport if any government official or state-owned entity acquires any direct or indirect ownership interest in Subscriber or in this Agreement. Subscriber shall provide Travelport with any information reasonably requested by Travelport with respect to this Clause 23.3. A breach by Subscriber of this Clause shall give Travelport the ability to terminate this Agreement immediately. Subscriber agrees that if Subscriber becomes aware or has reason to know of the existence of any payment or transfer (or offer of promise of payment or transfer) that would violate the United States Foreign Corrupt Practices Act 1977, the United Kingdom Bribery Act 2010, the United Kingdom Criminal Finances Act 2017 or any other applicable anti-bribery or anti-corruption law, such offer, promise, payment or transfer will be immediately disclosed to Travelport’s Legal Department
23.4. Where Subscriber is located in the European Union or Norway, Travelport and Subscriber will comply with Regulation (EC) No 80/2009 of the European Parliament and of the Council of 14 January 2009 on a Code of Conduct for computerised reservation systems and repealing Council Regulation (EEC) No 2299/89 as amended from time to time.
23.5. A reference to legislation or a legislative provision in this Agreement is a reference to it as amended, extended or re-enacted from time to time. A reference to legislation or a legislative provision in this Agreement shall include all subordinate legislation made from time to time under that legislation or legislative provision.
24. Governing Law
This Agreement and any disputes arising under or in connection with this Agreement or the breach thereof (whether in contract, tort or otherwise) will be governed by, construed, interpreted and enforced according to the laws of: (i) the territory in which Travelport is registered; or (ii) England, where Travelport International Operations Limited is a contracting entity (“Governing Territory”). Each party hereby consents to the non-exclusive jurisdiction of the courts of the Governing Territory to resolve any dispute arising out of this Agreement.
Terms and Conditions – Content Access
A. Content Continuity Program / Super Access Product Content Access
1. To the extent Subscriber participates in the Content Continuity Program and/or the Super Access Product with respect to Segments generated in the Travelport System, Subscriber will pay Travelport the relevant Content Access Charge set out in the Products and Services Attachment for each Segment it generates on Vendors participating in the Content Continuity Program and/or the Super Access Product (as applicable). Notwithstanding the foregoing, the Content Access Charge payable by Subscriber pursuant to this Clause will not exceed the Segment incentive payable to Subscriber for any Segment on such Vendor.
2. For the purpose of this Agreement:
“Content Continuity Program” means the program through which Travelport provides Subscriber content and protection against service fees of designated Participating Airlines. Travelport may modify the Content Continuity Program in its discretion at any time. The Content Continuity Program is only available in the United States.
“Participating Airlines” means the airlines that have opted to participate in the Content Continuity Program and the Super Access Product, which are Delta Air Lines (DL), United Airlines (UA), American Airlines (AA), Alaska Airlines (AS), Virgin America (VX), JetBlue Airways (B6). Travelport may revise the list of Participating Airlines in its discretion at any time.
“Super Access Product” means the product through which Travelport provides Subscriber content and protection against service fees of designated Participating Airlines. Travelport may modify the Super Access Product in its discretion at any time. The Super Access Product is only available in the United States.
B. Southwest Content Access
1. To the extent Southwest Airlines (WN) expressly permits Subscriber access to its fares and other content through the Travelport System (as and in such Subscriber points of sale as notified to Travelport by Southwest Airlines), Subscriber will pay Travelport the relevant Content Access Charge set out in the Products and Services Attachment for each Southwest Segment it generates in the Travelport System. Notwithstanding the foregoing, the Content Access Charge payable by Subscriber pursuant to this Clause will not exceed the Segment incentive payable to Subscriber for any Southwest Segment.
2. For the purpose of this Agreement:
“Southwest Segment” means an air Segment generated on Southwest Airlines (WN).
C. Air New Zealand Content Access
1. Travelport has secured a waiver of the Air New Zealand global distribution system surcharge for selected subscribers in Australia and New Zealand. To the extent Subscriber accesses the un-surcharged Air New Zealand content via the Travelport System, Subscriber will pay Travelport the relevant Content Access Charge set out in the Products and Services Attachment for each Air New Zealand Segment it generates in the Travelport System.
2. For the purpose of this Agreement:
“Air New Zealand Segment” means an air Segment generated on Air New Zealand (NZ) for any Air New Zealand Designated Route.
“Air New Zealand Designated Route” mean an Air New Zealand flight which has both its origin and destination in New Zealand, or between New Zealand and any of: Australia; the Cook Islands; Fiji; Norfolk Island; Tonga; Western Samoa; Vanuatu; New Caledonia; Tahiti; Honolulu; or Denpasar.
D. Cuba Content Access
1. Where Subscriber elects to receive access to Cuba Content:
1.1. Travelport will grant Subscriber a limited, non-exclusive, non-transferable right to access and book Cuba Content via the PCCs and/or IATA codes identified by Subscriber to Travelport in writing from time to time.
1.2. Subscriber will comply with the Cuba Regulations and ensure it will not do or omit to do anything that may cause Travelport to violate the Cuba Regulations.
1.3. For each traveler for whom Cuba Content is booked by Subscriber, Subscriber will: (i) ensure each such traveler is an authorized traveler under the Cuba Regulations; and (ii) obtain a Cuba Certification from each such traveler in the form required by the Cuba Regulations, which may be obtained via an online process. Subscriber will retain records of each Cuba Certification for a period of not less than 5 years from the date of booking the applicable Cuba Content or the date of travel, whichever is later.
1.4. Within 5 days following Travelport’s written request, Subscriber will deliver Travelport documentation evidencing its compliance with these Cuba Content Access terms and the Cuba Regulations to Travelport’s reasonable satisfaction. Travelport may terminate Subscriber’s access to Cuba Content where Subscriber fails to provide the requested documentation under this Section D (Cuba Content Access) within 5 days of Travelport’s request.
2. For the purpose of this Agreement:
“Cuba Certification” means a certification of compliance with the Cuba Regulations, which will set forth the applicable traveler’s name and residential address and include a certification that the traveler is a citizen or permanent resident of the United States or otherwise subject to US jurisdiction and is traveling to Cuba pursuant to one of the categories of travel-related transactions authorized by the Cuba Regulations.
“Cuba Content” means products and services available through the Travelport System related to authorized travel to, from and within Cuba.
“Cuba Regulations” means the Cuban Assets Control Regulations, as more specifically set forth in 31 Code of Federal Regulations of the United States (CFR) Part 515, as amended or supplemented from time to time.
Terms and Conditions – Products and Services
A. Travelport Hotel API – RESTful/JSON API microservices, Hotel Content Plus, or Hotel and Car Content
1. If Subscriber elects to use either the hotel capability accessible through Travelport RESTful/JSON API microservices, Hotel Content Plus, or Hotel and Car Content, Subscriber acknowledges and agrees that the following terms in this Section A (Travelport Hotel API – RESTful/JSON API microservices, Hotel Content Plus, or Hotel and Car Content) will also apply to Subscriber:
1.1. If Travelport requests Subscriber cease displaying any component of the Car and Hotel Products, Subscriber will comply with the request in the timeframe specified by Travelport.
1.2. Subscriber will not directly or indirectly: (i) download and/or host any images or source files acquired via the Image Link URL on its own platform or servers (except as otherwise permitted in this Section A (Travelport Hotel API – RESTful/JSON API microservices, Hotel Content Plus, or Hotel and Car Content)), or (ii) fail to refresh or update content and information provided by the Car and Hotel Products no less frequently than weekly via Travelport.
1.3. If Subscriber elects to subscribe to Image Link, Subscriber acknowledges that it will receive access to images from multiple sources, including Leonardo Content (as defined below) and images sourced by Travelport from other sources. Travelport will provide Subscriber a subscription to the Leonardo Content during the Term subject to the Leonardo Terms set forth in Clause 2 below; provided that Travelport may terminate Subscriber’s subscription if no longer made available to Travelport from Leonardo (as defined below in Clause 2) or if Leonardo increases the charges to Travelport for Leonardo Content.
1.4. Subscriber will display all images provided by Travelport associated with each hotel and use best efforts to display such images at the highest reasonable resolution.
2. In addition, by using the hotel capability accessible through Travelport RESTful/JSON API microservices, Hotel Content Plus, or Hotel and Car Content, Subscriber acknowledges and agrees to be bound by the following Leonardo Terms and will indemnify, defend and hold harmless Travelport and each Travelport Indemnitee from and against any claim, damages, expenses, or loss (including without limitation reasonable attorney fees) related to Subscriber’s access or use of the Image Link or failure to comply with the Leonardo Terms:
2.1. GENERAL. These terms and conditions in this Clause 2 (“Leonardo Terms”) are applicable to Subscriber’s utilization of Leonard Content (as defined in this Clause 2) to be provided to Subscriber by Travelport pursuant to this Agreement. By and as a condition of utilizing any Leonardo Content, Subscriber agrees to these Leonardo Terms. Terms defined in these Leonardo Terms shall have the meaning ascribed to them for the purposes of these Leonardo Terms only. SUBSCRIBER’S FAILURE TO ABIDE BY THESE LEONARDO TERMS WILL RESULT IN VOIDANCE OF SUBSCRIBER’S INDEMNIFICATION ENTITLEMENT IN THE EVENT OF ANY ACTION BROUGHT AGAINST SUBSCRIBER IN CONNECTION WITH ITS USE OF LICENSED CONTENT (AS DEFINED IN THIS CLAUSE 2).
2.2. DEFINITIONS. As used in these Leonardo Terms, the following terms will have the following respective meanings:
(a) “Content Feed” means any feed of Hotel content provided by Travelport to Subscriber containing Leonardo Content (and/or URL links thereto).
(b) “Digital Brochure” means the Leonardo multi-media digital brochure that displays Leonardo Content relating and/or contextual to each Leonardo Hotel that subscribes to Leonardo’s Digital Brochure distribution service and is provided to Subscriber as part of a Content Feed.
(d) “Hotel” means an individual hotel property.
(e) “Images” means, collectively, digital static images such as photos, logos, and static map or floor-plan images (including any accompanying textual information and metadata such as category, captions, and descriptions) depicting, relating or contextual to Hotels.
(f) “Intellectual Property” means all (i) patents, patent applications, patent disclosures, inventions (whether patentable or not) and improvements thereto, (ii) trademarks, service marks, logos, trade names, corporate names, Internet domain names, and registrations and applications for registration thereof, together with all goodwill associated therewith; (iii) copyrights and copyrightable works (including computer programs) and registrations and applications for registration thereof; (iv) computer software, data, and documentation; (v) trade secrets and confidential business information (including ideas, formulas, compositions, inventions (whether patentable or unpatentable and whether or not reduced to practice), know-how, production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, financial, marketing, and business data, pricing and cost information, business and marketing plans, and proprietary rights; (vi) waivable or assignable rights of publicity and waivable or assignable moral rights; and (vii) all other forms of intellectual property, such as data and databases.
(g) “Leonardo Content” means Images and Digital Brochures relating to Leonardo Hotels.
(h) “Leonardo Hotel” means a Hotel for which Leonardo provides Travelport with a feed of, and license to, Hotel content, which Travelport provides as part of a Content Feed and sub-licenses to Subscriber pursuant to these Leonardo Terms.
(i) “Leonardo” means Leonardo Worldwide Corporation, a Canadian company that, among other things, distributes and licenses Leonardo Content.
(j) “Licensed Content” means any Leonardo Content that is included as part of a Content Feed or otherwise provided by Travelport to Subscriber. For clarity, any Licensed Content that is removed by Travelport from a Content Feed, as contemplated in Clause 2.5(a)(iv) of these Leonardo Terms, will cease to be Licensed Content 20 days following such removal.
(k) “Sub-License” has the meaning ascribed thereto in Clause 2.4 of these Leonardo Terms.
(l) “Subscriber Channels” means Subscriber and any other online travel or travel related entity that is wholly owned by Subscriber and utilizes Licensed Content in accordance with these Leonardo Terms.
2.3. NOTICE OF USE OF LEONARDO CONTENT TO LEONARDO.
(a) Subscriber must provide Leonardo’s insurance broker with a written email notice of its intent to use Licensed Content in accordance with these Leonardo Terms. The notice shall be sent to Leonardo’s insurance broker at Conor.Paterson@marsh.com, with a copy to Travelport at DMCA@travelport.com; and shall: (i) reference these Leonardo Terms; (ii) include the name of each Subscriber Channel which will utilize the Licensed Content; and (iii) provide the name and contact details for a Subscriber contact person.
(b) IF SUBSCRIBER FAILS TO PROVIDE SUCH NOTICE AND/OR FAILS TO NAME ANY SUBSCRIBER CHANNEL THEREIN, THEN LEONARDO SHALL NOT BE REQUIRED TO INDEMNIFY SUCH SUBSCRIBER OR SUBSCRIBER CHANNEL, AS APPLICABLE, PURSUANT TO CLAUSE 2.7 OF THESE LEONARDO TERMS AGAINST ANY CLAIM, DAMAGES, COSTS AND EXPENSES INCURRED BY SUCH SUBSCRIBER OR SUBSCRIBER CHANNEL AS A RESULT OF ANY SUIT OF A THIRD PARTY AGAINST SUCH SUBSCRIBER OR SUBSCRIBER CHANNEL ALLEGING ANY COPYRIGHT OR SIMILAR THIRD PARTY RIGHT INFRINGEMENT.
2.4. LEONARDO CONTENT SUB-LICENSE. Subject to the conditions set forth in Clause 2.5 of these Leonardo Terms, Travelport may provide to Subscriber, as part of a Content Feed, Leonardo Content for use on the Subscriber Channels and, to the extent so provided, Travelport will grant Subscriber a non-exclusive, revocable, limited, royalty-free, fully paid-up, worldwide sub-license (the “Sub-License”) to use, publicly display, publicly perform, and otherwise feature, such Leonardo Content on the Subscriber Channels.
2.5. SUB-LICENSE CONDITIONS.
(a) The Sub-License is subject to the following conditions:
(i) Leonardo Content Hosting & Display. The Leonardo Content will be hosted by Leonardo on its AWS cloud servers, and Subscriber Channels may only display the Leonardo Content by linking to such Licensed. With the exception of thumbnail versions of Images and textual information and metadata, Subscriber Channels may not copy or download onto their own servers any of the Leonardo Content.
(ii) Subscriber Channels Utilization of Leonardo Images. For any Hotel for which Travelport provides Subscriber with Image Licensed Content as part of the Content Feed, Subscriber Channels will either:
(A) display all such Images for such Hotel, other than duplicate Images of a smaller resolution; or
(B) display a subset of such Images; provided, however, if requested by Travelport, Subscriber will provide Travelport with an explanation of the methodology used by Subscriber Channels in selecting the Images displayed by such Subscriber Channels so that Leonardo may communicate the same to Leonardo Hotels.
(iii) Display of Digital Brochures. Where the Licensed Content for a Leonardo Hotel includes a Digital Brochure Link, Subscriber Channels may display such Hotel’s Digital Brochure as follows:
(A) By placing the Digital Brochure Link (which may be named “Hotel Digital Brochure”, “Visual Tour”, “Multimedia Tour” or similar) on the webpage in a reasonably visible position in proximity to where the Images for the applicable Hotel are displayed so an online user can click on it; and
(B) Displaying the Digital Brochure either directly within such Subscriber Channel’s web pages or as a pop-up or Lightbox page overlay.
(iv) Updating of Licensed Content. Subscriber and Subscriber Channels will update all Licensed Content (giving effect to any additions and/or deletions thereto) no less frequently than every 30 days.
(v) Licensed Content to Be Used in Conjunction with Travelport Hotel Inventory. Subscriber Channels may only use Licensed Content for a given Hotel in conjunction with the display of such Hotel’s inventory, rates and availability information provided by Travelport.
(vi) No Onward Distribution. Subscriber may not onward distribute the Licensed Content (or related URL links) to any website or channel that is not a Subscriber Channel.
(vii) Non-Competition. In any event, any Licensed Content may not be used in any manner that is directly competitive to Leonardo’s visual content distribution business or distributed to, or used for, or in the promotion of, any business which is, or any company or other entity whose business is, directly competitive to that of Leonardo.
(viii) No Other Rights to Licensed Content. Except for the Sub-License provided in Clause 2.4 of these Leonardo Terms, neither Travelport nor Leonardo will transfer or license to Subscriber or Subscriber Channels any right, title or interest in or to any Licensed Content, and nothing contained in these Leonardo Terms will be construed as conferring upon Subscriber or any Subscriber Channel, by implication, operation of law or otherwise, any other license or other right in or to such Licensed Content.
(b) If Subscriber and/or any Subscriber Channel fail to abide by the conditions of Clause 2.5(a) of these Leonardo Terms, Leonardo and/or Travelport shall have the right to require Subscriber and Subscriber Channels to delete and cease utilizing all Licensed Content.
2.6. DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE.
(a) Subscriber and any Subscriber Channel utilizing the Licensed Content are strongly advised to avail themselves of the copyright infringement safe harbor under the Digital Millennium Copyright Act (“DMCA”) by:
(i) Publishing an “Online Service Provider” copyright policy on its website(s) in accordance with the DMCA which will include a description of the manner in which a person or entity can submit a claim for copyright infringement to such Subscriber Channel;
(ii) and registering with the U.S. Copyright Office an agent to receive notifications of claimed infringement in accordance with the DMCA; and
(iii) Complying with the requirements of the DMCA with respect to any claimed copyright infringements.
(b) IF SUBSCRIBER OR A SUBSCRIBER CHANNEL FAILS OR ELECTS NOT TO MEET THE REQUIREMENTS OF CLAUSE 2.6(a) OF THESE LEONARDO TERMS, LEONARDO SHALL NOT BE REQUIRED TO INDEMNIFY SUBSCRIBER OR SUCH SUBSCRIBER CHANNEL PURSUANT TO CLAUSE 2.7 OF THESE LEONARDO TERMS FOR ANY CLAIM, DAMAGES, COSTS AND EXPENSES INCURRED BY SUBSCRIBER OR SUBSCRIBER CHANNEL AS A RESULT OF ANY SUIT OF A THIRD PARTY AGAINST THEM ALLEGING ANY COPYRIGHT OR SIMILAR THIRD PARTY RIGHT INFRINGEMENT UNDER UNITED STATES LAW.
2.7. LEONARDO INDEMNITY. Leonardo will indemnify, hold harmless and defend Subscriber and Subscriber Channels and their respective officers, directors, employees and agents (the “Subscriber Indemnified Parties”) for, from, and against any and all claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by the Subscriber Indemnified Parties as a result of any suit of a third party against the Subscriber Indemnified Parties arising from any claim that any Licensed Content or the distribution and display thereof on the Subscriber Channels violates any third party right, including, without limitation, any copyright, property, or privacy right in such Licensed Content, provided, in each case, that Subscriber promptly notifies Leonardo in writing of any such claim and that Leonardo will have the right to control and defend or settle any such claim at Leonardo’s expense and with Leonardo’s choice of counsel. At Leonardo’s request, the Subscriber Indemnified Parties will cooperate with Leonardo, in defending or settling such claim and the Subscriber Indemnified Parties may join in defense with counsel of their choice at their own expense.
2.8. LEONARDO THIRD PARTY RIGHTS. BY UTILIZING ANY LEONARDO CONTENT SUBSCRIBER AGREES THAT LEONARDO SHALL BE A THIRD PARTY BENEFICIARY OF THESE LEONARDO TERMS AND, AS SUCH ENTITLED TO TAKE ANY STEPS TO ENFORCE SUCH LEONARDO TERMS IF BREACHED BY SUBSCRIBER AND/OR SUBSCRIBER CHANNELS.
2.9. GOVERNING LAW. Notwithstanding any provision in this Agreement stating otherwise, these Leonardo Terms shall be deemed to have been made in and shall be construed in accordance with the laws of the State of New York and the parties agree that any claims, disputes or questions arising out of or in relation to the Car and Hotel Products or the Leonardo Content may be submitted to the jurisdiction of the courts of the State of New York.
3. For the purpose of this Agreement:
“Car and Hotel Database” means the Travelport product granting Subscriber access to certain corollary information relative to car rental and hotel services distributed through the Travelport System as more specifically defined in the table below.
|Hotel and Car Content – Level 1||Hotel Content: Property File, Property File Expanded, PC File 2, Vendor File, Change File, Property Information, Images|
|Hotel Property List File: Hotel code and chain code ID, property name, property address, city, city code, state code, postal code, country code, GDS and phone number (if available)|
|Car Content: Car Location Complete File, Image URLs|
|Hotel and Car Content – Level 2||Hotel Content: Property Information, Images, Latitude/Longitude, Northstar Crown Ratings|
|Hotel Property List File: Hotel code and chain code ID, property name, property address, city, city code, state code, postal code, country code, GDS and phone number (if available)|
|Car Content: Car Location Complete File, Image URLs, Latitude/Longitude File|
|Hotel and Car Content – Level 3||Hotel Content: Property File, Property File Expanded, PC File 2, Vendor File, Change File, Latitude/Longitude File, Property Information, Images, Latitude/Longitude, Northstar Crown Ratings, Multiple Languages|
|Hotel Property List File: Hotel code and chain code ID, property name, property address, city, city code, state code, postal code, country code, GDS and phone number (if available)|
|Car Content: Car Location Complete File, Image URLs, Latitude/Longitude File|
“Car and Hotel Products” means the Car and Hotel Database, the Image Link Annual Subscription, and all content, accesses, data, specifications, and associated products and services and information provided to Subscriber under this Agreement.
B. Cruise and Tour Product
1. If Subscriber elects to use the Cruise and Tour Product, Subscriber acknowledges and agrees that the following terms in this Section B (Cruise and Tour Product) will also apply to Subscriber:
1.1. Subscriber acknowledges that some of the services provided by Travelport in connection with the Cruise and Tour Product may be provided by Revelex, Travelport’s third party service provider(s). Subscriber grants Travelport and any of its third party service providers access to the location(s) and assigned pseudo city code designations for the purpose of creating and/or modifying passenger name records in the Travelport System.
1.2. Subscriber must promptly notify Travelport if Subscriber discovers or suspects any unauthorized use of Cruise and Tour Product, or if Subscriber knows or suspects that any TCT User ID or password has been lost or stolen or become known to any unauthorized person. If Travelport, in its sole and absolute discretion, considers a TCT User ID or password to be insecure or to have been used inappropriately, then Travelport may immediately cancel the TCT User ID or password and will provide written notice to Subscriber.
1.3. To the extent Subscriber provides access to Cruise and Tour Product to any TCT User, Subscriber is responsible for all acts and omissions of each TCT User in its access or use of Cruise and Tour Product.
1.4. Subscriber will use best efforts to (i) manage the usage of the Cruise and Tour Product Licenses and (ii) suspend any unneeded Cruise and Tour Product Licenses. If Subscriber is granted any discount for Cruise and Tour Product, Travelport will evaluate the productivity of each Cruise and Tour Product License and if (1) a Cruise and Tour Product License is not logged into for one calendar month and/or (2) a Cruise and Tour Product License is not used to make a Cruise and Tour Product Booking for two consecutive calendar months, Travelport may deactivate such Cruise and Tour Product License and may implement its automated suspension tool for deactivation.
1.5. Travelport, in its sole discretion at any time, may terminate, permit, or deny Subscriber’s or any TCT User’s access and use of Cruise and Tour Product.
2.1. License Grant. Subject to the payment of the applicable charges, and the other terms and conditions set forth in this Agreement and this Section B (Cruise and Tour Product), Travelport shall grant to Subscriber a limited, restricted, non-exclusive, non-transferable, revocable license to access Cruise and Tour Product which Revelex has authorized Travelport to resell (for the purposes of this Section B (Cruise and Tour Product), the “Licensed Services”), and certain related documentation (for the purposes of this Section B (Cruise and Tour Product), “Documentation”) solely for the use of Subscriber during the term of this Agreement.
2.2. Restrictions. Subscriber may not: (a) use the Licensed Services other than solely for Subscriber’s business purposes; (b) copy, reproduce, modify, translate, transmit, reverse engineer, disassemble or decompile or otherwise attempt to derive the source code of any Licensed Service; (c) license, sublicense, sell, resell, lease, loan, transfer, assign, distribute, rent or otherwise make available the Licensed Services to or for the benefit of any person other than Subscriber and TCT Users pursuant to the terms and conditions of this Section B (Cruise and Tour Product); (d) modify or create derivative works based upon any portion of the Licensed Service or Documentation; (e) remove, alter, obscure, destroy or attempt to circumvent any trademarks, notices, proprietary codes, means of identification, digital rights management information, or terms and conditions agreements on, in or in relation to the Licensed Services; or (f) use access to the Licensed Services for purposes of creating competing products and/or services.
2.3. Ownership. Title to the Licensed Services and Documentation remains with Travelport or Travelport’s respective licensors, as the case may be. The Licensed Services and Documentation constitute proprietary information and a trade secret of Travelport or its licensors, as applicable, whether or not any portion of the Licensed Services is or may be copyrighted or patented. One authorized user may use the Licensed Services for each license granted and copy the related Documentation for use by Subscriber in connection with the Licensed Services (for the purposes of this Section B (Cruise and Tour Product), an “Authorized User”), provided that all copies and partial copies of such Documentation shall include Travelport’s copyright notices or those of any applicable licensors or suppliers, as applicable. Except as expressly permitted in this Section B (Cruise and Tour Product) or required by law, the Subscriber may not (a) copy, reproduce, modify, alter, merge, supplement, adapt, translate, transmit, reverse engineer, reverse assemble, reverse compile, decompile, disassemble or otherwise attempt to derive the source code (or any of the underlying ideas, algorithms, models, processes, techniques, interfaces, design, architecture or know-how) of the Licensed Services, (b) distribute, publish, transfer, sublicense, sell, resell, lease, loan, transfer, assign, or otherwise make the Licensed Services or Documentation available to other persons or entities other than Authorized Users, (c) modify or create derivative works of any of the Licensed Services or Documentation, (d) remove, alter, obscure, destroy or attempt to circumvent any copyrights, trademarks notices, proprietary codes, means of identification, or digital rights management information with respect to the Licensed Services or Documentation; (e) use access to the Licensed Services for purposes of creating a competing service.
2.4. Right to Suspend Licensed Services. Travelport reserves the right, in its sole discretion, to decline provision of service to Subscriber and to immediately suspend, without notice, access to the Licensed Services of Subscriber and/or its users who (i) is in violation of this Agreement; (ii) poses a threat to the security or operation of the Licensed Services and/or the Revelex systems; (iii) posts or provides any sexually explicit or otherwise inappropriate content to the Licensed Services; or (iv) exposes Travelport or its third party service provider(s) to potential damages. In the event Travelport elects to suspend the Licensed Services pursuant to this Clause, Travelport shall use commercially reasonable efforts to provide notice to Subscriber in advance.
2.5. Term and Termination. Subscriber’s (and its TCT Users’) right to access and use Cruise and Tour Product shall not extend beyond the term of Travelport’s reseller agreement with its or its third party service provider(s). If either party materially defaults in its performance of this Section B (Cruise and Tour Product), and such default remains uncured more than thirty (30) calendar days after written notice of the default is received by the breaching party, the non-breaching party may terminate Subscriber’s (and its TCT Users’) right to access and use Cruise and Tour Product upon fifteen (15) calendar days’ prior written notice to the breaching party. Travelport may terminate Subscriber’s (and its TCT Users’) right to access and use Cruise and Tour Product for its own convenience upon sixty (60) days’ notice to Subscriber.
2.6. Compliance with Laws. Subscriber shall only use the Licensed Services and the Documentation in a manner that complies with all applicable laws, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
2.7. No Warranty. THE LICENSED SERVICES AND DOCUMENTATION ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. TRAVELPORT AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO THE CONTENT OF INFORMATION PASSING THROUGH THE LICENSED SERVICES AND THROUGH THE HOST COMPUTERS AND NETWORK HUBS OF TRAVELPORT’S RESPECTIVE LICENSORS AND AS TO ANY SERVICES PROVIDED TO SUBSCRIBER, OR ANY OTHER MATTER WHATSOEVER, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES REGARDING THE CONDITION OF THE LICENSED SERVICES, ITS MERCHANTABILITY, TITLE/NON-INFRINGEMENT, OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. TRAVELPORT DOES NOT WARRANT THAT THE LICENSED SERVICES SHALL MEET ALL OF SUBSCRIBER’S BUSINESS REQUIREMENTS OR SHALL OPERATE IN A PARTICULAR COMPUTER ENVIRONMENT OR THAT THE OPERATION OF THE LICENSED SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE.
2.8. Limitation of Liability. IN NO EVENT SHALL TRAVELPORT, OR ITS AGENTS, CONTRACTORS, LICENSORS, SUPPLIERS OR, TRAVLEPORT’S THIRD PARTY SERVICE PROVIDER(S) BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, LOST DATA, DELAYS, LOST PROFITS, LOSS OF REVENUE OR ANY OTHER ECONOMIC LOSS, COST OR EXPENSE ARISING FROM OR RELATED TO THIS AGREEMENT, THIS SECTION B (CRUISE AND TOUR PRODUCT) AND/OR THE LICENSED SERVICES AND DOCUMENTATION, WHETHER ARISING OUT OF CONTRACT, WARRANTY, TORT, NEGLIGENCE OR OTHERWISE, EVEN IF TRAVELPORT OR THE SUBSCRIBER OR ITS AGENTS CONTRACTORS, LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER CLAUSES IN THIS AGREEMENT, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF TRAVELPORT OR ITS AGENTS, CONTRACTORS, LICENSORS OR SUPPLIERS UNDER THIS SECTION B (CRUISE AND TOUR PRODUCT), WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT, NEGLIGENCE OR OTHERWISE, EXCEED THE PORTION OF THE REVENUES RECEIVED BY SUCH PERSON (WITHOUT DUPLICATION) UNDER THIS SECTION B (CRUISE AND TOUR PRODUCT) FOR THE DEFECTIVE LICENSED SERVICES IN THE MONTH PRECEDING THE DATE THE CAUSE OF ACTION ARISES.
2.9. Indemnification. Subscriber shall indemnify, defend and hold Travelport and its agents, contractors, licensors suppliers and Travelport’s third party service provider(s) and the officers, directors and employees and agents of each of the foregoing, harmless from any losses, damages, fines and expenses (including reasonable attorneys’ fees) arising out of or relating to Subscriber’s use of the Licensed Services.
3. For the purpose of this Agreement:
“Cruise and Tour Product” means the Travelport Cruise & Tour product, a customized, web-based shopping and booking system powered by the technology of Revelex.
“Cruise and Tour Product Booking” means a reservation using Cruise and Tour Product that is not subsequently cancelled and that is consumed by the traveler. Travelport will determine the number of Cruise and Tour Product Bookings based on Travelport’s books and records.
“Cruise and Tour Product License” means a license to access Cruise and Tour Product provided by Travelport pursuant to this Agreement.
“Revelex” means Revelex Corporation, a Florida corporation (with principal offices at 6405 Congress Avenue, Suite 120, Boca Raton, Florida 33487) focused on providing travel technology solutions.
“TCT User” means any employee or agent of Subscriber or any other person authorized by Subscriber to access and use Cruise and Tour Product for and on behalf of Subscriber.
“TCT User ID” means each unique user identification log-in together with the corresponding password assigned by Travelport to Subscriber to permit Subscriber’s TCT Users to access and use Cruise and Tour Product in accordance with the terms of this Agreement.