SUBSCRIBER AGREEMENT TERMS AND CONDITIONS (“TERMS AND CONDITIONS”)
The following definitions shall apply to these Terms and Conditions. Capitalized terms used in these Terms and Conditions and not otherwise defined in this document will have the meanings set out in the Agreement.
“BSP” means the billing settlement plan or any similar applicable settlement scheme.
“Business Day” means any day other than Saturday or Sunday which is not a bank or public holiday in the jurisdiction in which Travelport’s registered office is located.
“Charges” means the Monthly Package Fee specified in the Agreement and any further charges and fees that may be payable by Subscriber to Travelport under the Agreement.
“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 the Agreement or otherwise), and marketing concepts, including the terms of the 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.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.
“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;
“Core Service Package” means Travelport Essential, Travelport Advanced, or Travelport Professional, as selected in the Agreement.
“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.
“End User” means any employee or agent of Subscriber or any other person authorized by Subscriber to access and use the Products and Services for and on behalf of Subscriber.
“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 a failure by the 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 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;
“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);
“Improper Segment” means any speculative, duplicative, fraudulent or fictitious reservation or any other reservation deemed by Travelport in its discretion to be an improper use of the Products and Services.
“Ineligible Segment” means a reservation generated by Subscriber for which Travelport receives a limited or low yield from the Vendor and such other booking types 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, Passive Segments and Rail Bookings).
“Message” means any inquiry, request, command or other transaction with the Travelport System generated by Subscriber manually or by way of any automated programs. A single search or request by Subscriber may generate multiple Messages.
“Passive Segment” 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.
“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, the applicable Core Service Package, Optional Services and any other products or services provided by Travelport to the Subscriber under the Agreement.
“Product Data” means data (which may include the identity of the Subscriber) which is extracted from the Travelport System by the Travelport Group Companies, but which does not contain Personal Data.
“Rail Booking” means a reservation resulting from a booking made with a rail Vendor using the Travelport System where a valid ticket has been issued.
“Segment” means an air, car rental, hotel, tour or other travel reservation designated by Travelport that is made by the Subscriber directly in the Travelport System which:
- results in a fee payable and paid by the Vendor to Travelport and/ or a Travelport Group Company;
- is not cancelled;
- is not an Improper Segment; and
- is not an Ineligible Segment.
Vendors may be added, deleted or change their level of participation in the Travelport System at any time without notice. Travelport reserves the right to modify this definition from time to time to reflect commercial agreements between Travelport and Vendors, the introduction of new or revised Vendor offerings, and to specify additional Segment types.
“Subscriber Group Company” means any person or entity Controlling, Controlled by or under common Control with Subscriber, and ‘Subscriber Group’ will be construed accordingly.
“Travelport Advanced” means a Core Service Package that, as of the Effective Date, includes products and services with the following functionalities:
- user interface providing search and booking functionality for air, car, hotel and other travel ancillary content;
- applications to enable traveler digital communications;
- applications to enable the queueing of air bookings to air consolidator(s);
- facilitation of air ticket exchanges; and
- facilitation of the management of unused air tickets,
and such additional products and services that may be agreed between the parties, which may be based on the Subscriber’s country of registration.
“Travelport Essential” means a Core Service Package that, as of the Effective Date, includes products and services with the following functionalities:
- user interface providing search and booking functionality for air, car, hotel and other travel ancillary content;
- applications to enable traveler digital communications; and
- applications to enable the queuing of air bookings to air to consolidator(s),
and such additional products and services that may be agreed between the parties, which may be based on the Subscriber’s country of registration.
“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 Professional” means a Core Service Package that, as of the Effective Date, includes products and services with the following functionalities:
- user interface providing search and booking functionality for air, car, hotel and other travel ancillary content;
- applications to enable traveler digital communications;
- applications to enable the queuing of air bookings to air consolidator(s);
- facilitation of air ticket exchanges;
- facilitation of the management of unused air tickets;
- applications to optimize travel agency operations; and
- applications to manage negotiated air fares,
and such additional products and services as may be agreed between the parties, which may be based on the Subscriber’s country of registration.
“Travelport System” means the global distribution system and related processes, methods, firmware, software and hardware owned and operated by Travelport or its affiliate used to (i) collect, store, process, display, and distribute information concerning air and ground transportation, lodging, and other travel-related goods and services, and (ii) enable users of the Travelport System to, among other things, make reservations for purchase or obtain tickets for such goods and services.
“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.
2. Access to and Use of the Products and Services
2.1 In accordance with and subject to the Terms and Conditions 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 the Travelport System and use the Products and Services 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 until the Effective Date.
2.3 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.
2.4 Subscriber acknowledges and agrees that it:
(a) will, to the extent applicable, install the Products and Services itself;
(b) will take all reasonable precautions to prevent any unauthorized access to the Products and Services;
(c) will not modify, enhance, reverse compile or adapt or alter the whole or any part of the Products and Services;
(d) will not permit the whole or any part of the Products and Services to be combined with or incorporated in any other computer program or software;
(e) will 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 to be permitted by applicable law and provided that the 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 the Agreement shall apply to all such copies as it applies to the Products and Services);
(f) will not enter Passive Segments 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) will 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) will 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 or Subscriber Group Companies will procure that such employees and personnel shall use and access the same in accordance with the provisions of the Agreement only;
(i) will 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) will not directly, indirectly, manually, or through robotic devices access or use, or allow any third party to access or use, the Travelport System to train anyone other than Subscriber’s or Subscriber Group Companies 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) will comply with IATA Codes, the BSP and any applicable rules or policies of the Vendors accessed by the Subscriber;
(l) will be responsible for ensuring its personnel are adequately trained in the Vendor offerings that the Subscriber provides to its customers; and
(m) shall at all times comply with the Payment Card Industry Data Security Standards.
2.5 Travelport may enhance, discontinue, withdraw, modify or replace (collectively, “Update”) any of the Products and Services and/or Optional Services at Travelport’s discretion at any time, using automatic updating technology or otherwise.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.Subscriber will install and implement (at its sole cost), any new releases of software or desktop versions within 30 days after release by Travelport.
2.6 Travelport will have the right to limit and/or interrupt access to the Products and Services by Subscriber in order to carry out scheduled or unscheduled maintenance work or to modify or update the Products and Services.
2.7 Travelport may immediately suspend or limit Subscriber’s or a Subscriber Group Company’s access to specific Vendor content if Travelport is requested by the Vendor to do so.In such case Travelport shall have no liability to Subscriber for any loss, cost, claim, damage, expense or other harm suffered by the Subscriber as a result of such suspension or limitation.
2.8 Travelport may terminate or cease in whole or in part provision of particular content types in the Travelport System at any time.
2.9The 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 first agree to any relevant additional terms and conditions applicable for those Products and Services before being granted access.
2.10 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.
2.11 If Subscriber uses the Products and Services to access third party content, including but not limited to insurance content (whether via a third party application made available by Travelport or otherwise) then Subscriber agrees that Travelport shall have no liability whatsoever to Subscriber with respect to such third party content and/or the third party application (if applicable).Subscriber is responsible for contracting directly with the third-party content provider or the third-party application provider and shall fully indemnify Travelport for any claims, costs, demands or expense that Travelport might incur as a result of the Subscriber’s failure to comply with its obligations in relation to the third party content/application provider.
2.12 If Subscriber’s business model of operations are 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.
2.13 If in Travelport’s reasonable opinion, Subscriber is using or attempting to use the Travelport System at excessive levels (such determination to be made solely by Travelport) then Travelport may (i) communicate with Subscriber and try to establish the reasons for the high usage and how the usage patterns and habits can be modified to reduce the use of the Travelport System to reasonable levels; (ii) reduce or restrict Subscriber’s capability to access the Products and Services; and/or (iii) apply Travelport’s then current standard excess Message fee charges to the Subscriber’s next invoice.
3. Third Party Products
3.1 Subscriber acknowledges and agrees that Travelport has no liability whatsoever with respect to any product, software or service that is not owned by Travelport and is used by the Subscriber in conjunction with the Products and Services (“Third Party Product”).
3.2 Subscriber shall ensure that any Third Party Products meet Travelport’s minimum technical standards for access to and use in association with the Travelport System.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 Travelport System until Travelport is reasonably satisfied that such Third Party Product meets Travelport’s minimum technical standards.
3.3 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 that Subscriber 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.
3.4 Subscriber shall at all times be responsible for its Third Party Products including the obtaining, installation, operation, support and maintenance thereof.
3.5 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.
4. Security Measures
4.1 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, having appropriate 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.
4.2 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.
4.3 Subscriber will cooperate with Travelport in investigating and prosecuting any security breaches that affect or threaten Travelport’s security.
5. Per-Segment Incentives
5.1 Travelport will issue self-billed invoices for all Per-Segment Incentives showing the name, address and VAT number of Subscriber, together with all other details which constitute a full VAT invoice (“Self-Bill Invoice”).
5.2 Subscriber acknowledges and agrees that it will:
(a) accept Self-Bill Invoices raised by Travelport on Subscriber’s behalf during the Term;
(b) not raise invoices for Per-Segment Incentives;
(c) 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
(d) notify Travelport immediately in writing if Subscriber:
- changes its tax registration number;
- changes its bank account details;
- ceases to be VAT registered; or
- becomes VAT registered, in which case it shall provide that number to Travelport immediately.
5.3 Subscriber warrants that it will provide its correct VAT registration number to Travelport prior to signature of the Agreement.
5.4 Subject to Clause 5.5 below, Per-Segment Incentive payments are expressed exclusive of VAT and any other tax.
5.5 Notwithstanding Clause 5.4 above, if the Travelport contracting entity is Travelport International Operations Limited and Subscriber is registered outside of the United Kingdom, Per-Segment Incentive payments 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.
5.6 If Travelport is required by any law to make a deduction or withholding from any amount payable to Subscriber under the 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.
5.7 If Travelport has reasonable grounds to believe Subscriber is in breach of the Agreement then in addition to any other remedies available, Travelport shall have the right to immediately suspend Per-Segment Incentive payments.
5.8 Per-Segment Incentive payments and Segment 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. Subscriber consents to any retroactive adjustment by Travelport of incorrect Segment counts.
5.9 Travelport shall have no liability to make payments to Subscriber for any Segments for which Travelport or a Travelport Group Company has received a valid claim for payment from any other customer of Travelport, whether such customer is a travel agent, developer or other type of business. 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, Subscriber shall repay all payments it has received for those Segments to Travelport within 15 days of receiving notification from Travelport.
5.10 Subscriber shall not be entitled to receive any payments with respect to Segments where the Segment resulted from the Subscriber issuing tickets in connection to bookings made by another travel agent.
6.1 In consideration of the Products and Services provided to the Subscriber by Travelport under the Agreement, Subscriber will pay the Charges within 30 days of the invoice date.
6.2 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.
6.3 Subscriber will reimburse Travelport for any costs incurred by Travelport to collect amounts due under the Agreement, including reasonable legal fees.
6.4 Without prejudice to Clause 12 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.
6.5 Travelport shall be entitled, but not obliged, at any time to set off any Charges or liability of Subscriber (or of any Subscriber Group Company) in each case howsoever arising, to Travelport against any liability of Travelport (or any Travelport Group Company) to Subscriber (in either case howsoever arising and irrespective of the currency of its denomination) and may for such purpose convert or exchange any currency. Travelport shall also be entitled, but not obliged, at any time to set off any charges or liability of Subscriber Group Companies to Travelport against any liability of Travelport to Subscriber in either case howsoever arising including and may for such purpose convert or exchange any currency.
6.6 Except as may be required by applicable law, all amounts payable to Travelport under this Agreement, whether for Charges, Early Termination Fees or otherwise as a result of claims by Travelport against Subscriber under Clause 8 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 deliver to Travelport a certified copy of the tax documents attesting to the collection of such deduction or withholding tax in a timely manner.
6.7 In addition to any other charges or sums payable to Travelport under the Agreement, 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 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), now or hereafter imposed by any local or foreign tax authority, or governmental agency or other similar bodies arising out of or in connection with the 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 6.
7. Warranties and Remedies
7.1 Each of Subscriber and Travelport represents and warrants that it has the requisite authority and power to enter into this Agreement and perform its obligations hereunder.
7.2 Travelport represents and warrants that: (i) it (or a Travelport Group Company) is the owner or authorized licensee of the software contained in or provided with the Travelport System; and (ii) it (or a Travelport Group Company) has the right to provide access to the Travelport System to Subscriber.This warranty will be null and void if Subscriber (a) fails to use the Products and Services in accordance with the Agreement and the guidelines provided to Subscriber by Travelport from time to time; (b) fails to use required Updates; or (c) makes any unauthorized change to the Products and Services.
7.3 Travelport will defend and hold Subscriber harmless against any third party claim due solely to an alleged breach of Clause 7.2(i) or (ii), 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 7.2(i) or (ii), 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.
7.4 No remedy will be available to Subscriber with respect to any downtime or non-performance of any portion of the Travelport System resulting from normal maintenance, repairs or other scheduled downtime, failure of data communications facilities, downtime caused by a third party or Subscriber, or downtime resulting from any other cause.
7.5 The remedies available under this Clause are exclusive of any other remedy, now or hereafter existing at law, in equity, by statute or otherwise for breach of Clause 7.2.
8.1 If Travelport is prevented or delayed from performing its obligations under this Agreement by reason of any act or omission of Subscriber Group Company, then Subscriber shall pay to Travelport all reasonable costs, charges and losses sustained or incurred by Travelport as a result.
8.2 Travelport hereby excludes any liability of any kind relating to any problems of whatever nature which have been caused in the reasonable opinion of Travelport by Subscriber’s failure to comply with its obligations under this Agreement or any act or omission of the Subscriber.
8.3 In no case shall the liability of Travelport to the Subscriber or Subscriber Group Company arising out of or connected with this Agreement exceed the total sum of USD 50,000 (fifty thousand US Dollars) inclusive of all relevant charges and taxes, such sum being expressed in the currency set forth in the Agreement.
8.4 All liability that is not expressly assumed by Travelport in this Agreement is hereby excluded to the fullest extent permitted by law.
8.5 The limitations set out in this Clause 8 will apply regardless of the form of action, whether under statute, in contract, tort, including negligence, or any other form of action.For the purposes of this Clause, a reference to Travelport includes Travelport’s Group Companies, employees, agents, contractors, representatives and suppliers.
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 attorneys’ fees, costs and related expenses, that may be incurred by a Travelport Indemnitee as a result of Subscriber’s misuse of the Products and Services, Subscriber’s modification of the Products and Services, Subscriber’s failure to comply with any of its obligations under this Agreement, Subscriber’s provision of travel services and/or products to Subscriber’s customers or Subscriber’s use of a Third Party Product.
10. Intellectual Property
10.1 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:
- the data stored in or accessed via the Travelport System; or
- any Products and Services, documentation, trademarks or service marks of any of the Travelport Group Companies (or its authorized third party licensors, if applicable); or
- any related materials used in connection with the Travelport System.
10.2 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.
10.3 Subscriber warrants, represents and undertakes that the Travelport Group Companies will have the right to extract, use and send any data that the 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.
10.4 Subscriber acknowledges and agrees that Travelport will have the right to extract Product Data and to disclose (including sell) and send Product Data to third parties.
10.5 Without prejudice to the generality of this clause Subscriber hereby warrants, represents and undertakes that any data supplied by it to Travelport (whether stored on or sent over the Travelport System or on the Products and Services or otherwise pursuant to this Agreement) will not contain anything obscene, offensive or defamatory, or which is in breach of any laws or regulations.
11. Data Protection
11.1 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.
11.2 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, the 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.
11.3 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.
12.1 Either party may immediately terminate this Agreement by giving written notice to the other party (“Defaulting Party”) if:
(a) the Defaulting Party (including in the case of Subscriber, a Subscriber Group Company) commits any material breach of any of the provisions of this Agreement (including a breach of warranty) 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 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) 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
(e) the Defaulting Party ceases, or threatens to cease, to carry on business.
12.2 For the purposes of Clause 12.1(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).
12.3 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 the Per-Segment Incentive Payments until such breach is remedied to Travelport’s satisfaction in an attempt to avoid termination.
12.4 Travelport may, in its sole discretion on written notice to Subscriber, terminate or suspend this Agreement immediately if:
(a) Subscriber fails to remit any payment within five days of Travelport’s written notice;
Subscriber or a Subscriber Group Company is removed from the BSP agency list, Subscriber’s BSP agreement is terminated, or Subscriber becomes ineligible to participate in the local BSP;
(b) if Subscriber or a Subscriber Group Company uses the Products and Services for any improper, fraudulent or illegal use or purpose or allows or enables any third party to do so;
(c) there is a change of Control of Subscriber or a Subscriber Group Company or Subscriber or a Subscriber Group Company merges with, and/or purchases or otherwise acquires another business or entity where the effect of the merger, purchase or acquisition is such that the number of Segments generated by the Subscriber shall substantially increase;
(d) if Subscriber’s or a Subscriber Group Company’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;
(e) Subscriber or a Subscriber Group Company assigns, sells, transfers, restructures or otherwise disposes of the whole, or a part of, its business; or
(f) performance of the Agreement by Travelport or a Travelport Group Company would constitute a violation of any applicable laws or regulations.
12.5 Where Subscriber is located in the European Union or Norway, 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.
12.6 Upon the termination of this Agreement for any reason:
(a) Subscriber and any Subscriber Group Company shall immediately stop accessing the Travelport System and/or the use 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 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; and
(d) notwithstanding any other provision in this Agreement, any outstanding amounts owed by the 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.
12.7 Subscriber’s use of Products and Services following the expiration or termination of the Agreement constitutes Subscriber’s on-going agreement to pay Travelport’s then current fees for such Products and Services.
12.8 In the event the Subscriber requests that Travelport migrate any PNRs, booking files or other records on termination then the Subscriber agrees that it shall pay Travelport’s then current data migration charges and will take all necessary steps to comply with Data Protection Laws.
13.1 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 the 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 the 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.
13.2 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 the Agreement.
13.3 Either party may disclose publicly that the parties have entered into the Agreement and that the other party is a customer or vendor of the other party.
13.4 The parties’ confidentiality obligations under this Clause will survive termination of the Agreement for a period of 3 years; provided, however, a party’s trade secrets will remain confidential indefinitely.
14.1 Travelport shall have the right to assign, subcontract or otherwise delegate all or any of its rights or obligations under this Agreement.
14.2 The Subscriber may not assign or transfer the Agreement, or any part of the 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 will be void at its inception.
14.3 In the event of any permitted assignment, the Agreement shall continue to bind the successors in title and assigns of the relevant parties.
15. Force Majeure
15.1 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.
15.2 Except for the 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 any Force Majeure of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.
15.3 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.
16.1 Any notice permitted or required by this Agreement to be given by the Subscriber must be in English and in writing. Travelport may give notices in local language or in English. Notices may be:
(a) delivered by hand;
(b) sent by pre-paid registered post;
(c) sent by courier; or
(d) sent by email.
16.2 Notices addressed to Subscriber may be sent to the registered office address specified in the Agreement or e-mailed to the email address notified by Subscriber from time to time.Any notice permitted or required to Travelport must be sent to Travelport at the registered address specified in the Agreement, ATTN:Legal Department – Contract Notices or via e-mail to firstname.lastname@example.org.
16.3 Any notice sent by post in accordance with this Clause 16 shall be deemed to have been received on the second Business 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 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.
16.4 The Subscriber must notify Travelport within ten Business Days if there is any change to the Control of Subscriber or the Subscriber’s name, registered office, address, agreed locations or other contact details.
17.1 Relationship of Parties – Nothing in the Agreement is intended or will be construed to create any agency, partnership or joint venture relationship between the parties.
17.2 No Waiver – No failure or delay by either party in exercising any of its rights under the 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 the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision of the 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.
17.3 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.
17.4 No Representation – 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, and any conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law, but nothing in the Agreement shall affect the liability of any party for fraudulent misrepresentation.
17.5 Enforceability – It is the express agreement of Travelport and Subscriber that if any provision of the Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions will not be impaired.
17.6 Attorneys’ Fees – In the event of an action to enforce the Agreement or to seek remedies for a breach of the Agreement, the prevailing party will be entitled to receive from the other party reimbursement of its reasonable attorneys’ fees, expenses and court costs.
17.7 Currency – Unless otherwise indicated, all figures referred to in the Agreement and these Terms and Conditions are in the currency of the country where the Subscriber is registered.
17.8 Counterparts – The 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.
17.9 Survival – Notwithstanding anything to the contrary in the Agreement, provisions which by their nature and intent should survive expiration or termination of the Agreement, including, but not limited to, confidentiality, damages, limitation of liability and software or access rights restrictions will survive.
17.10 Headings – The headings appearing in the Agreement have been inserted as a matter of convenience and in no way define, limit or enlarge the scope of the Agreement or any of the provisions in the Agreement.
18. Entire Agreement
The 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 the Agreement and, as of the Effective Date, supersedes all prior written and oral agreements between Travelport and Subscriber on this subject matter, except for amounts either party may owe the other under a prior agreement.The Agreement may be modified only by written agreement of Travelport and Subscriber or as otherwise expressly stated in the Agreement.
19. Modification of Terms
Travelport may amend these Terms and Conditions from time to time at its discretion.Such changes will be made available through Travelport’s website at the location designated for these Terms and Conditions, currently uat.travelport.com/smb_terms_and_conditions.
20. Compliance with Laws
20.1 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 the Subscriber that relates to its use of the Products and Services.
20.2 The parties agree that they will comply with the anti-bribery provisions of the United States Foreign Corrupt Practices Act 1977, the United Kingdom Bribery Act 2010 and any other associated legislation and with any equivalent legislation in the jurisdictions in which Subscriber operates (or is established) 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 the Agreement.Subscriber shall provide Travelport with any information reasonably requested by Travelport with respect to this Clause.A breach by Subscriber of this Clause shall give Travelport the ability to terminate the Agreement immediately.
20.3 Where Subscriber is located in the European Union or Norway, 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.
21. Governing Law
The Agreement and any disputes arising under or in connection with the Agreement or the breach thereof (whether in contract, tort or otherwise) will be governed by, construed, interpreted and enforced according to the laws of the territory in which the Travelport entity that is party to the Agreement is registered (“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 the Agreement.