1. Definitions and interpretation
In this Agreement, where the context so admits, the following words and expressions shall have the following meanings:
"Business Day" means each day which is not a Saturday or Sunday or a bank or public holiday in England;
"Customer Data" means all data, information and material input or uploaded to any Product or transmitted through the Service by You and/or any User;
“Customer Materials” means any material provided or made available by or on behalf of You to OTA Insight for the purposes of incorporation into any Product and/or the Service for You, but excluding Customer Data;
"Confidential Information" means all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of this Agreement), including all information relating to that other's or its Group Members' business, operations, systems, processes, products, trade secrets, know how, contracts, finances, plans strategies or current, former or prospective clients, customers, partners or suppliers (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential, but excluding information which:
a) is available to the public other than because of any breach of this Agreement;
b) is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or
c) is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others.
"Group Member" means at the relevant time, in relation to any entity, an entity which, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that entity, where “control” means holding, directly or indirectly, a majority of the voting rights in it, or the power to direct or cause the direction of its management, policies or operations, whether through holding of voting rights, by contract or otherwise;
“Initial Term” has the meaning set out in clause 12.1;
"Intellectual Property Rights" means patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action);
"Ordering Document" means the ordering document to which these terms and conditions are attached;
“OTA Insight Content” means all data, information and material owned by or licensed to OTA Insight or any of its Group Members and comprised within any Product and/or the Service, but excluding Customer Data and Customer Materials;
"Product(s)" means the OTA Insight product(s) set out in the Ordering Document;
"Properties" means hotels or other similar guest properties owned and/or operated by You and/or any of Your Group Members;
“Renewal Term” has the meaning set out in clause 12.1;
"Service" means the service to be provided by OTA Insight consisting of provision of access to the Product(s) on a software as a service (SaaS) basis;
“Software” means any software owned by or licensed to OTA Insight or any of its Group Members and which forms part of, or is used in the provision of, any Product or the Service.
In this Agreement (including the introduction and schedules) unless the context otherwise requires:
a) reference to a person includes a legal person (such as a limited company) as well as a natural person;
b) clause headings are for convenience only and shall not affect the construction of this Agreement;
c) reference to "including" or any similar terms in this Agreement shall be treated as being by way of example and shall not limit the general applicability of any preceding words; and
d) reference to any legislation shall be to that legislation as amended, extended or re-enacted from time to time and to any subordinate provision made under that legislation.
2. Provision of Service
2.1 Following the Effective Date, OTA Insight 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.
2.2 With effect from the effective date, OTA Insight shall:
a) procure that the Service is enabled for You in live production use; and
b) for the remainder of the term of this Agreement: (i) procure the hosting of the Product(s); and (ii) support and maintain the Product(s) and Service.
3. Grant of licence and scope of authorised use
3.1 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 OTA Insight Content but excluding Customer Data and Customer Materials) and Software are reserved to OTA Insight.
3.2 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:
a) Your employees;
b) any contract staff who are working for You; and
c) any other person working with, or on behalf of, You;
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.
3.3 You shall not:
a) except as expressly permitted by this Agreement, permit any third party to access or use any Product or the Service or use the same on behalf of any third party (which includes operating any form of facility on behalf of any third party or operating a software bureau or similar service);
b) copy, translate, modify, adapt or create derivative works from any Product or the Service;
c) create Internet "links" to the Service or "frame" or "mirror" any OTA Insight Content on any other server or wireless or Internet-based device;
d) attempt to discover or gain access to the source code for the Software or reverse engineer, modify, decrypt, extract, disassemble or decompile the Software (except strictly to the extent that You are permitted to do so under applicable law in circumstances under which OTA Insight is not lawfully entitled to restrict or prevent the same), including in order to:
i) build a competitive product or service;
ii) build a product using similar ideas, features, functions or graphics of the Service; or
ii) copy any ideas, features, functions or graphics of the Service;
e) attempt to interfere with the proper working of any Product, the Service or Software and, in particular, must not attempt to circumvent security, licence control or other protection mechanisms, or tamper with, hack into or otherwise disrupt any Product, the Service or Software or any associated website, computer system, server, router or any other internet-connected device;
f) amend or remove any copyright notice, trade mark or other proprietary marking on, or visible during the operation or use of, any Product, the Service or Software; or
use the Service to:
i) upload, store, post, email, transmit or otherwise make available any content that infringes any Intellectual Property Rights or data protection, privacy or other rights of any other person, is defamatory or in breach of any contractual duty or any obligation of confidence, is obscene, sexually explicit, threatening, inciteful of violence or hatred, blasphemous, discriminatory (on any ground), knowingly false or misleading, or that does not comply with all applicable laws and regulations or is otherwise impersonate any person or entity or otherwise misrepresent Your relationship with any person or entity;
ii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Customer Data transmitted through the Service;
iii) engage in any fraudulent activity or further any fraudulent purpose;
iv) provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organisation(s) designated by the government of the United Kingdom or any foreign government as a foreign terrorist organisation;
v) attempt to gain unauthorised access to any Product or the Service or its related systems or networks; and/or
and shall not permit any Authorised Use or other third party to do any of the foregoing.
4. Administrator, Users and Customers
4.1 You shall designate one contact and one alternate as the responsible party for communication with OTA Insight during the term of this Agreement (Your “System Administrator”). Your System Administrator shall have the authority to bind You, except that another duly authorised representative of You may change Your System Administrator by giving written notice to OTA Insight in accordance with clause 15.2.
4.2 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 System Administrator 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 OTA Insight in the event that You become aware of any breach of the terms of this Agreement or OTA Insight’s Privacy and Security Policies by any User.
4.3 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 OTA Insight upon becoming aware of any unauthorised access to or use of any Product and/or the Service, and provide all reasonable assistance to OTA Insight to bring an end to such unauthorised access or use.
5. Third party interactions
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. OTA Insight 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. OTA Insight does not endorse any third party or any sites on the Internet that are linked through the Service. OTA Insight provides links and access to third parties only as a matter of convenience, and in no event shall OTA Insight or its licensors be responsible for any advice, content, products, or other materials on or available from such companies or sites.
6.1 OTA Insight warrants that:
a) it has the right to enter into this Agreement and to provide the Service as contemplated by this Agreement;
b) the Product(s) and Service shall, under normal operating conditions, substantially conform to the functionality described in the specification set out in the Ordering document.
c) the support and maintenance services shall be performed with reasonable care and skill.
6.2 If any of the warranties in clause 6.1 is breached, You must notify OTA Insight as soon as possible. You must give OTA Insight 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 OTA Insight is unable to provide the Service and Product or unable to deliver the required data, You will be compensated. For each 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 fourteen (14) days and OTA Insight will reimburse You for the remaining months.
6.3 OTA Insight shall use good faith efforts to provide comprehensive and accurate Service; provided, however, OTA Insight cannot assure that all hotel rankings, price, demand, extranet details, and other information will be found or delivered.
6.4 From time to time delivery of the Service and Product may be delayed due to scheduled or unscheduled maintenance or factors beyond OTA Insight’s control, and failure to deliver the Services and Product in such event or events shall not constitute a breach of the Agreement.
6.5 OTA Insight 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").
7. Fees, invoicing and payment
7.1 You shall pay the annual licence fees, as set out in the Ordering Document. Upon mutual signature of this Agreement, OTA Insight shall invoice You for the licence fees in advance (cfr. Initial Term), commencing on the Effective Date.
7.2 The licence fees are subject to review and increase by OTA Insight upon 30 days' notice, provided that no such increase shall apply prior to the end of the Initial Term.
7.3 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 OTA Insight, shall be payable by You at the rate and in the manner prescribed by law.
7.4 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 OTA Insight shall make any adjustment due immediately upon such resolution.
8. Confidentiality and publicity
8.1 Subject to clause 8.2, each party shall:
a) keep confidential all Confidential Information of the other party which it receives in connection with this Agreement;
b) apply to it no lesser security measures and degree of care than those which it takes in protecting its own Confidential Information and in any event no less than that which a reasonable person or business would take in protecting its own confidential information;
c) only use such Confidential Information as strictly necessary for the performance of, or exercise of its rights under, this Agreement;
d) not disclose such Confidential Information to any third party (other than its professional advisers, officers, employees, agents, contractors and sub-contractors on a 'need to know' basis as strictly required for the purposes of this Agreement and subject to each such person being bound by an obligation of confidentiality equivalent to this clause 8); and
e) promptly, upon request and, in any event, upon termination of this Agreement (for whatever reason), return to the other party all materials (in whatever form) incorporating, embodying or recording any such Confidential Information in its possession or control and, if requested by the other party, certify in writing that it has done so.
8.2 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).
8.3 You acknowledge and agree that the Product(s), Service (including the OTA Insight 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 OTA Insight.
9. Intellectual Property Rights
9.1 Nothing in this Agreement shall cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other.
9.2 OTA Insight and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in OTA Insight's brands, trade marks and logos, the Product(s), the Service (including the OTA Insight Content but excluding Customer Data and Customer Materials) and the Software. Except as expressly permitted by this Agreement, You may not use any of OTA Insight's Intellectual Property Rights without OTA Insight's prior written consent.
9.3 You shall promptly bring to the attention of OTA Insight any improper or wrongful use of any Intellectual Property Rights of OTA Insight which comes to Your notice. You shall assist OTA Insight in taking all steps to defend OTA Insight’s Intellectual Property Rights, but not institute legal proceedings of Your own accord.
9.4 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 OTA Insight, 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 OTA Insight 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.
10.1 OTA Insight 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 OTA Insight, 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:
a) the use or combination of any Product and/or the Service with equipment, software, material or services not supplied by OTA Insight or of which OTA Insight was not aware;
b) modification to any Product and/or the Service carried out by anyone other than OTA Insight;
c) OTA Insight complying with any design, specification or instructions provided by You or on Your behalf;
d) any Customer Data and/or Customer Materials; or
10.2 If Your access or use, in accordance with the terms of this Agreement, of any Product and/or the Service is, or in OTA Insight's reasonable opinion is likely to become, enjoined as a result of a claim for which OTA Insight is obliged to indemnify You further to clause 10.1, then OTA Insight shall, at its sole option, and at its own cost and expense, make all reasonable efforts, as soon as reasonably possible to:
a) procure for You the continuing right to access and use such Product and/or the Service (as the case may be), in accordance with this Agreement, without infringement; or
b) replace or modify such Product and/or the Service with software and/or services of substantially equivalent specification so as to avoid the infringement; and provided OTA Insight does so, it shall have no further liability to You in respect of the infringement claim.
10.3 The indemnity in clause 10.1 shall be conditional upon:
a) Your promptly notifying OTA Insight in writing of any claim which is subject to the indemnity;
b) Your ensuring that no admission as to liability or any settlement or compromise of any such claim is made without the prior written consent of OTA Insight; and
c) OTA Insight being entitled, upon request and at its cost and expense, to assume exclusive conduct of such claim (which shall include the right to conduct any proceedings or action in relation to, negotiate the settlement of, and to conduct all discussions and dispute resolution efforts in connection).
10.4 You shall indemnify OTA Insight against all loss or damage that it incurs or suffers as a result of:
a) any Customer Data or OTA Insight’s use and/or possession, in accordance with this Agreement, of any Customer Materials; and/or
b) any claim by a third party as a result of Your use of any Product and/or the Service.
11.1 Nothing in this Agreement limits or excludes either party's liability:
a) for death or personal injury caused by its negligence;
b) for fraudulent misrepresentation or for any other fraudulent act or omission;
c) to pay sums properly due and owing to the other in the normal course of performance of this Agreement; or
d) for any other liability which may not lawfully be excluded or limited.
1.2 Subject to clause 11.1, OTA Insight shall not be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any: (a) loss of profit; (b) loss of sales, turnover, revenue or business; (c) loss of customers, contracts or opportunity; (d) loss of or damage to reputation or goodwill; (e) loss of anticipated savings; (f) loss of any software or data; (g) loss of use of hardware, software or data; (h) loss or waste of management or other staff time; or (i) indirect, consequential or special loss; arising out of or relating to this Agreement.
1.3 Subject to clauses 11.1 and 11.2, OTA Insight'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.
12. Term and termination
12.1 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).
12.2 Either party may terminate this Agreement, at any time, by giving the other written notice if the other:
a) materially breaches any term of this Agreement and it is not possible to remedy that breach;
b) materially breaches any term of this Agreement and it is possible to remedy that breach, but the other fails to do so within 30 days of being requested in writing to do so; or
c) becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an is order made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 28 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.
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.
12.3 Without prejudice to clause 12.1, OTA Insight 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:
a) any invoiced amount (not then-currently being disputed in good faith) is outstanding beyond the due date for payment;
b) any provision of clause 3.3 is breached; and/or
c) You are in persistent or repeated breach of any of Your obligations under this Agreement (whether or not it is the same obligation that is breached and whether or not such breaches are remedied).
13. Consequences of termination
13.1 Upon termination of this Agreement for any reason:
a) You shall immediately cease to access, and discontinue all use, of the Product(s) and Service; and
b) all amounts payable to OTA Insight by You shall become immediately due and owing. For the avoidance of doubt, no refund of fees paid in advance shall be due in respect of any unexpired portion of the then-current term; and
13.2 The termination of this Agreement for any reason will not affect:
a) any accrued rights or liabilities which either party may have by the time termination takes effect; or
b) the coming into force or the continuation in force of any of its provisions that expressly or by implication are intended to come into force or continue in force on or after the termination. Without prejudice to the foregoing, clauses 1, 6, 7, 8, 9, 10, 11, 13 and 15 shall survive termination of this Agreement.
14. Force majeure
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:
a) notifies the other in writing as soon as reasonably practicable about the nature and extent of the circumstances and likely breach;
b) uses reasonable efforts to mitigate the effects of the circumstances and breach so as to minimise or avoid the breach;
c) uses reasonable efforts to resume performance as soon as reasonably practicable; and
d) could not have avoided the breach by taking steps that it ought reasonably to have taken in light of the matters known to it before the circumstances arose.
15.1 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 OTA Insight.
15.2 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 sent by air mail if posted to or from a place outside the United Kingdom), and shall be treated as having been delivered:
a) if sent by hand, when delivered; and
b) if sent by certified or registered mail, two days after the date of posting (or, if sent by air mail, seven days after the date of posting).
15.3 Unless the parties expressly agree otherwise in writing, if a party:
a) fails to exercise or delays exercising or only exercises partially any right or remedy provided under this Agreement or by law; or
b) agrees not to exercise or to delay exercising any right or remedy provided under this Agreement or by law; then that party shall not be deemed to have waived and shall not be precluded or restricted from further exercising that or any other right or remedy.
15.4 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.
15.5 All variations to this Agreement must be agreed, set out in writing and signed on behalf of both parties before they take effect.
15.6 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.
15.7 A person who is not a party to this Agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
15.8 It is a condition of this Agreement that, in pre-contract negotiations and in the exercise of its rights or the performance of its obligations under this Agreement, each party shall at all times ensure that it complies with the terms of the Bribery Act 2010 and that it does not commit (or procure the commission of) any breach of that Act.
15.9 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.
15.10 This Agreement is governed by English law. Both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with this Agreement or its subject matter, but OTA Insight is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its Intellectual Property Rights.