In this Agreement, where the context so admits, the following words and expressions shall have the following meanings:
In this Agreement (including the introduction and schedules) unless the context otherwise requires:
Following the Effective Date, TI shall set-up the Service for you in respect of the Product(s) which you are licensed to access and use under this Agreement, as set out in Ordering Document.
With effect from the effective date, TI shall:
Subject to full payment of the applicable fees and subject to the other provisions of this Agreement, You are granted a non-exclusive, non-transferable licence, for the term of this Agreement, to access and use the Product(s) and Service for up to the number of Properties set out in the Ordering Document and in accordance with any other restrictions there set out. Without prejudice to clause 3.2, you may not sub -license the right to access and/or use any Product or the Service to any third party. You are licensed to access and use only the Product(s) set out in the Ordering Document and may do so only by means of the Service. Except as expressly set out in this Agreement, all rights in and to the Product(s), Service (including the TI Content but excluding Customer Data and Customer Materials) and Software are reserved to TI.
Only you are licensed to access and use the Product(s) and Service and solely for your internal business purposes. Use by you includes use by:
provided that, in each of these cases, the person concerned is accessing and using the Product(s) and Service exclusively on your behalf, for the above purposes.
You shall not:
You understand that the Product(s), the Service and/or Software may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by TI and/or content providers who provide content to the Products(s) and/or the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service.
As part of our commitment to providing a high-quality, fast and reliable service to all our clients, You understand that the Product(s), the Service and/or Software includes a fair usage restrictions set by TI . There is no fixed limit on the TI software usage. However, you may be in breach of this policy if we feel that your activities are so excessive that other customers are detrimentally affected, or we feel your activity could be construed as unfair usage of the functionality.
TI reserves the right to use your reservation-level Customer Data in an anonymized and aggregated form for development and product improvement purposes.
You shall designate one contact and one alternate as the responsible party for communication with TI during the term of this Agreement (Your “Point of Contact”). Your Point of Contact shall have the authority to bind you, except that another duly authorised representative of you may change your Point of Contact by giving written notice to TI in accordance with clause 16.2.
You shall ensure that each Authorised User shall, as a condition of being granted access to any Product and/or the Service, be required by your Point of Contact to acknowledge the obligations on you under this Agreement respecting authorised use (and restrictions on use) of the Product(s) and Service and agree to comply with the same. You shall immediately notify TI in the event that you become aware of any breach of the terms of this Agreement or Transparent Intelligence’s Privacy and Security Policies by any User.
You shall be responsible for all access to and use of the Product(s) and Service by Users. You shall be responsible for ensuring the security and confidentiality of all log-on identifiers, including usernames and passwords, assigned to, or created by, you or any User in order to access or use any Product and/or the Service ("ID") you acknowledge and agree that you will be solely responsible for all activities that occur under such ID. You shall promptly notify TI upon becoming aware of any unauthorised access to or use of any Product and/or the Service, and provide all reasonable assistance to TI to bring an end to such unauthorised access or use.
During use of the Service, you and/or Users may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity (and any terms, conditions, warranties or representations associated with such activity), is solely between you and/or the relevant User (as the case may be) and the applicable third party. TI and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and/or the relevant User (as the case may be) and any such third party. TI does not endorse any third party or any sites on the Internet that are linked through the Service. TI provides links and access to third parties only as a matter of convenience, and in no event shall TI or its licensors be responsible for any advice, content, products, or other materials on or available from such companies or sites.
The data sourced by TI from data partners will only be shared, by TI to its clients and partners, in an aggregated form. Aggregated data means high-level data that is composed from a multitude or combination of other more individual data.
Examples of data aggregation: average occupancy, average daily rates, average length of stay, average booking window, etc.
An aggregate data set must contain at least 3 “non-affiliated” data sources. By data source TI refers to one of its data partners, which could be a property management system, a channel management software, an OTA or a property management company. A "non-affiliated" data source means any partner that does not share with any of the other sources of the market the same owner, the same management or management company, the same manager or the same management team.
TI’s aggregations only output relative numbers (averages, percentages, quartiles, deciles, etc.) and no absolute numbers. See examples in Rule 1.
TI does not reveal the names of the partners whose data have been used in a specific data aggregation.
If any of the warranties in clause 6.1 is breached, you must notify TI as soon as possible. You must give TI a reasonable time to fix the problem and (if necessary) to make available a corrected version of the Product(s) and/or Service (as the case may be) or a reasonable way to work around the problem that is not materially detrimental to you, or to re-perform any relevant services. This will be done without any additional charge to you.
In the event TI is unable to provide the Service and Product or unable to deliver the required data, you will be compensated. After the first seven (7) days of unavailability, for each additional day of unavailability you will receive two (2) days automatic extension of the Term of the agreement. You will have the right to cancel the contract if the unavailability continues for twenty nine (29) days and TI will reimburse you for the remaining months.
As our company grows our commitment will be to review and improve these services level agreement.
TI shall use good faith efforts to provide comprehensive and accurate Service; provided, however, TI cannot assure that all rankings, price, demand, extranet details, and other information will be found or delivered.
From time to time delivery of the Service and Product may be delayed due to scheduled or unscheduled maintenance or factors beyond Transparent Intelligence’s control, and failure to deliver the Services and Product in such event or events shall not constitute a breach of the Agreement.
TI shall ensure that its provision of the Product(s) and Service to its customers generally, and you shall ensure that your use of the Product(s) and Service, complies, in all respects, with all applicable national, international and regional laws, statutes, ordinances, rules, regulations, administrative interpretations, orders, injunctions, judgments, directives, decisions, decrees (including all codes of practice and guidance issued by any governmental, regulatory or other competent authority) ("Applicable Laws").
You shall pay the annual licence fees, as set out in the Ordering Document. Upon mutual signature of this Agreement, TI shall invoice you for the licence fees in advance (cfr. Initial Term), commencing on the Effective Date.
The licence fees are subject to review and increase by TI upon 30 days' notice, provided that no such increase shall apply prior to the end of the Initial Term.
Save as the context requires or as otherwise provided in this Agreement, all amounts referred to in this Agreement are exclusive of value added tax (VAT) or other applicable sales tax which, where chargeable by TI, shall be payable by you at the rate and in the manner prescribed by law.
Invoices are payable, in full, without deduction, set off or withholding of any kind. Invoices are due as set out in the Ordering Document. In the event of any dispute as to the amount of an invoice, you shall pay the amount in full pending the resolution of any dispute and TI shall make any adjustment due immediately upon such resolution.
Subject to clause 9.2, each party shall:
Either party may disclose the other's Confidential Information to the extent required by law or by any court, tribunal, regulator or other authority with competent jurisdiction to order its disclosure (but only to the extent of such requirement).
You acknowledge and agree that the Product(s), Service (including the TI Content but excluding Customer Data and Customer Materials) and Software and the terms of this Agreement including, in particular, the pricing, constitute Confidential Information of TI.
Nothing in this Agreement shall cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other.
TI and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in Transparent Intelligence’s brands, trade marks and logos, the Product(s), the Service (including the TI Content but excluding Customer Data and Customer Materials) and the Software. Except as expressly permitted by this Agreement, you may not use any of TI’s Intellectual Property Rights without TI’s prior written consent.
You shall promptly bring to the attention of TI any improper or wrongful use of any Intellectual Property Rights of TI which comes to your notice. You shall assist TI in taking all steps to defend TI’s Intellectual Property Rights, but not institute legal proceedings of your own accord.
You and/or your licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in the Customer Data and Customer Materials. You grant TI, free of charge, a non-exclusive, worldwide royalty-free licence to use the Customer Data and Customer Materials only to such extent as is necessary to enable TI to provide the Service and to perform its obligations under this Agreement. You warrant that you own the Customer Data and Customer Materials and/or are otherwise entitled to grant the foregoing licence. If this Agreement is terminated, the foregoing licence will automatically terminate.
TI shall indemnify you against all damages and costs finally awarded against you by a court of competent jurisdiction and/or amounts paid by you further to a final settlement approved by TI, together with associated legal fees reasonably incurred by you, as a result of any claim by a third party that the access and use, in accordance with this Agreement, by you of any Product and/or the Service infringes the Intellectual Property Rights of any third party. The foregoing indemnity shall not apply in respect of any claim to the extent such claim arises as a result of:
If your access or use, in accordance with the terms of this Agreement, of any Product and/or the Service is, or in TI’s reasonable opinion is likely to become, enjoined as a result of a claim for which TI is obliged to indemnify you further to clause 10.1, then TI shall, at its sole option, and at its own cost and expense, make all reasonable efforts, as soon as reasonably possible to:
The indemnity in clause 11.1 shall be conditional upon:
You shall indemnify TI against all loss or damage that it incurs or suffers as a result of:
Nothing in this Agreement limits or excludes either party's liability:
Subject to clause 12.1, TI shall not be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any:
Subject to clauses 12.1 and 12.2, TI’s total liability arising out of or relating to this Agreement or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited, in respect of each 12-month period calculated from the Effective Date (each a “Contract Year”), to the total of all amounts payable by you under this Agreement during such Contract Year.
This Agreement shall commence on the Effective Date and shall, unless sooner terminated in accordance with its terms, continue for an initial term of the duration set out on the Ordering Document ("Initial Term") and thereafter renew automatically for successive terms of equivalent duration (each a "Renewal Term") unless and until terminated by either party giving the other not less than 30 days’ prior notice to that effect (such notice to expire at the end of the Initial Term or any subsequent Renewal Term only).
Either party may terminate this Agreement, at any time, by giving the other written notice if the other:
For the purposes of this clause 12.2, in order for it to be possible to remedy a breach it must be possible to take steps so as to put the other party into the same position which (save as to the date) it would have been in if the breach had never occurred.
Without prejudice to clause 13.1, TI may, in addition, and without liability, terminate this Agreement, or alternatively, may suspend access to and use of any Product and/or the Service, by giving you written notice if:
Upon termination of this Agreement for any reason:
The termination of this Agreement for any reason will not affect:
Neither party will be liable to the other for any breach of this Agreement which arises because of any circumstances which the defaulting party cannot reasonably be expected to control (which shall include interruption or failure of the Internet or of any network, telecommunications, power supply or infrastructure, or any provider of any of the foregoing but, for the avoidance of doubt, shall not include shortage or lack of available funds), provided that the defaulting party:
You may not sub-license or assign, sub-contract or delegate any or all of your rights or obligations under this Agreement without the prior written consent of TI.
All notices and consents relating to this Agreement (but excluding any proceedings or other documents in any legal action) must be in writing. Notices must be sent to the address of the recipient set out in the Ordering Document or otherwise notified by the relevant party in accordance with this Agreement. Notices shall be sent by hand, by first class recorded delivery or registered post or other form of certified or registered mail, and shall be treated as having been delivered:
Unless the parties expressly agree otherwise in writing, if a party:
If any provision of this Agreement is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of any other provision of this Agreement or this Agreement as a whole. If any provision of this Agreement is so found to be ineffective or unenforceable but would be effective or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it effective and enforceable.
All variations to this Agreement must be agreed, set out in writing and signed on behalf of both parties before they take effect.
Except to the extent that this Agreement expressly provides otherwise, nothing in this Agreement shall or is intended to create a partnership or joint venture between the parties, constitute one party as agent of the other or give either party authority to make or enter into commitments, assume liabilities or pledge credit on behalf of the other party. Neither party may act as if it were, or represent (expressly or by implying it) that it is, an agent of the other or has such authority.
This Agreement sets out all of the terms that have been agreed between the parties in relation to the subjects covered by it, and supersedes all previous agreements between the parties relating to such subjects. Provided always that nothing in this clause will operate to limit or exclude any liability for fraud or fraudulent misrepresentation, no other representations or terms shall apply or form part of this Agreement and each party acknowledges that it has not been influenced to enter this Agreement by, and shall have no rights or remedies (other than for breach of contract) in respect of, anything the other party has said or done or committed to do, except as expressly recorded in this Agreement.
This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to its conflicts of laws rules. Foreign laws do not apply, but TI is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its Intellectual Property Rights.