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DEMAND PLUS FOR RESELLER CUSTOMERS – TERMS AND CONDITIONS

By activating and/or using Demand Plus, you acknowledge that you have read and agree to these terms and conditions.

1. Definitions and interpretation

1.1

Definitions

In these terms and conditions, unless the context requires otherwise:

Agreement means this agreement constituted between you and SiteMinder comprising the Demand Plus Activation Form, these terms and conditions, and any applicable schedules or addendums.

Authorised Reseller means a person or entity authorised by SiteMinder to resell the Booking Engine.

Booking Engine means SiteMinder’s “Booking Engine” (or “Booking Button”) product, as more particularly described in the product schedule available on the Website.

Business Day means a day that is not a Saturday, Sunday or public holiday.

Completed Stay means a booking at the Property where the Guest has completed the stay (excluding cancellations and no-shows).

Confidential Information of a party means any information marked as confidential or which, by its nature, the other party knows, or ought to know, is confidential (regardless of its form and when it was acquired) and includes trade secrets, technical knowledge, concepts, designs, plans, precedents, processes, methods, techniques, knowhow, innovations, ideas, procedures, research data, financial data, databases, personnel data, computer software and programs, customer and supplier information, correspondence and letters and papers of every description including all copies or extracts of same relating to the affairs or business of the party.

Control in relation to an entity means the capacity to determine the outcome of decisions about the entity’s financial or operating policies.

Consequential Loss means:

  1. loss of revenue, profits or savings (actual or anticipated);
  2. loss of contracts or opportunities;
  3. loss of, or damage to, goodwill or reputation;
  4. loss arising from damage to credit rating or increased financing costs;
  5. loss of data or corruption of data;
  6. loss arising from business interruption or loss or damage resulting from wasted managed time; and
  7. any indirect, special, economic, incidental or consequential loss or damage, howsoever arising, whether based in contract (including under any indemnity), in tort (including negligence), in equity, under the provisions of any law or otherwise.

Customer or “you” means the person or entity purchasing or using Demand Plus.

Customer Software Application means any software used by the Customer, including any property management system or central reservation system, but excluding any SiteMinder Software.

Customer Users means officers, employees, agents, contractors or representatives of the Customer.

Data Protection Requirements means any legislation, regulation, statute or order, which may apply from time to time, relating to the collection, storage or use of Personal Information including (without limitation) the Australian Privacy Act 1988 (Cth), the Australian Privacy Principles, the UK Data Protection Act 2018, the European Union General Data Protection Regulation, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Data Protection (Processing of Sensitive Personal Data) Order 2000.

Demand Plus means SiteMinder’s “Demand Plus” product, being a network of Demand Plus Partners that can advertise and help drive bookings at the Property.

Demand Plus Activation Form means an order form or other written communication, including a digital or online form, between SiteMinder and the Customer in relation to the Customer’s activation and use of Demand Plus.

Demand Plus Ad means an advertisement with a Demand Plus Partner.

Demand Plus Partners means metasearch engines, traffic drivers, channels, travel websites and other platforms on which the Property can be listed.

Effective Date means the date of acceptance of these terms and conditions.

Fault means any fault which renders Demand Plus and/or a Service inoperable.

Fees means:

  1. an amount equal to the booking total, excluding percentage-based taxes and credit card surcharges, multiplied by the percentage commission rate; or
  2. another amount, each as notified to the Customer in writing and published on the Booking Engine user interface.

Force Majeure Event means anything which prevents a party from performing, or delays the performance of, any of its obligations under the Agreement and is beyond the control of the affected party, including (without limitation):

  1. a force of nature (e.g. fire, storm or explosion) or act of God;
  2. any strike, lockout, industrial action, war, sabotage, riot, act of terrorism, denial of service attack, insurrection, civil commotion, national emergency, epidemic, pandemic, quarantine, radiation or radioactive contamination;
  3. any action or inaction by a Government Agency;
  4. a change in law; or
  5. a breakdown of plant, machinery, equipment or telecommunications or shortages of labour, transportation, fuel, power, plant, machinery, equipment or material (including short supply from the regular source or supplier).

Government Agency means any government or public, statutory, governmental, supra-governmental, semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute.

Guest means a guest of the Property.

Hotel Data means all data relating to the Property, including (without limitation) room rates, room types, room availability, rate plans, restrictions, occupancy, Guests, reservations, images and content.

Insolvency Event means, in relation to a party, where:

  1. a receiver, manager, trustee, administrator, other controller or similar official is appointed over any of the assets or undertaking of the party;
  2. the party suspends payment of its debts;
  3. the party is unable to pay its debts when they are due;
  4. the party enters into or resolves to enter into any arrangement, composition or compromise with a creditor;
  5. the party ceases to carry on business;
  6. any action is taken to appoint an administrator;
  7. an application, order or action is made / taken for the winding up or dissolution of the party, otherwise than for the purpose of an amalgamation or reconstruction; or
  8. a party is presumed to be insolvent under any applicable statute, or threatens to do any of (a) – (g).

Intellectual Property Rights means all intellectual property rights, including the following rights:

  1. patents, copyright, rights in circuit layouts, registered and unregistered designs, trade marks, domain names, business names and any right to have confidential information kept confidential; and
  2. any application or right to apply for registration of any of the rights referred to in paragraph (a).

Interest Rate means 9% per annum.

Invoice Currency means the currency determined by SiteMinder, based on the location of the Property the subject of the booking.

Key Details Schedule means the schedule on page 1 of this Agreement.

Licensed Content means all content included in the Booking Engine or otherwise made available by the Customer to SiteMinder for distribution to Demand Plus Partners, including but not limited to Hotel Data.

Partner Terms means any terms imposed by Demand Plus Partners.

PCI DSS means the Payment Card Industry Data Security Standard issued by the Payment Card Industry Security Council.

Personal Information has the meaning given in the Data Protection Requirements.

Property means the building, dwelling or location from which the Customer provides accommodation to Guests, as specified in the Demand Plus Activation Form.

Related Body Corporate means, in relation to any entity, a company that Controls the entity, a company that is under the Control of the entity or is Controlled by the same company that Controls the entity.

Services means the supply of Demand Plus and may also include any of the following:

  1. installation, integration, maintenance, assistance or back up services;
  2. any related documentation and websites (including source code and databases);
  3. help desk systems and support;
  4. other connectivity applications and interfaces;
  5. conversion or adaptation of data and information on the Customer’s systems; and
  6. the preparation, loading, uploading or provision of software, data, text, images, sounds, videos and other content.

SiteMinder means:

  1. for any Customer principally located in Europe, Middle East or Africa – SiteMinder Distribution Limited (a company incorporated in England & Wales No. 07242801);
  2. for any Customer principally located in the USA, Canada, Central and South America – SiteMinder Hospitality Corporation (a company incorporated in Delaware); and
  3. for any other Customer – SiteMinder Limited (a company incorporated in Australia, ACN 121 931 744).

SiteMinder Infrastructure means any property or equipment (including computer hardware and software, electronic interfaces, platforms, databases, text, images, sounds, videos and other content) owned or used by SiteMinder which enable the Customer to access or use Demand Plus or the Services.

SiteMinder Software means all software in Demand Plus and SiteMinder Infrastructure.

Tax means any sales tax, value added tax (VAT), goods and services tax (GST) or similar tax in any applicable jurisdiction.

Term has the meaning given in clause 2.

Website means https://www.siteminder.com/legal/.

1.2

Interpretation

Headings are for convenience only and do not affect interpretation. The following rules of interpretation apply unless the context requires otherwise:

  1. the singular includes the plural and conversely;
  2. a reference to a person includes a body corporate, an unincorporated body, enterprise, firm, trust, joint venture, syndicate or other entity and conversely;
  3. a reference to a clause or schedule is to a clause of or schedule of these terms and conditions;
  4. a reference to a party includes the party’s successors, permitted assigns and Related Bodies Corporate;
  5. a reference to any legislation or part thereof includes any amendment, consolidation or replacement of it, and all regulations and statutory instruments issued under it;
  6. a reference to conduct includes, without limitation, any omission, statement or undertaking, whether or not in writing;
  7. a reference to parties to the Agreement includes any person who executes a deed of accession to it;
  8. if any payment by a party is due on a day which is not a Business Day, the due date will be the next Business Day in the same calendar month or, if none, the preceding Business Day; and
  9. if an obligation must be performed by 2 or more persons, it binds them jointly and individually.

2. Term

The Agreement commences on the Effective Date and continues until terminated by either party providing written notice to the other party, or otherwise in accordance with the terms of the Agreement.

3. Supply of Demand Plus

3.1

Supply

SiteMinder will supply Demand Plus to the Customer for the duration of the Term in accordance with the Agreement.

3.2

Licensed Content

The Customer grants SiteMinder a non-exclusive, royalty-free, worldwide and sub-licensable right to store, copy, distribute, display, publish and otherwise use the Licensed Content for the purposes of providing Demand Plus.

3.3

Booking Engine
  1. The Customer warrants that for the Term it will maintain a valid agreement with an Authorised Reseller for the supply of the Booking Engine at the Property.
  2. The Customer acknowledges that SiteMinder may populate the Booking Engine with content on the Customer’s behalf, notwithstanding the fact the Customer may amend or remove such content.

3.4

Demand Plus

The Customer acknowledges:

  1. SiteMinder may make any and all decisions on behalf of the Customer in relation to the distribution of Licensed Content to Demand Plus Partners (e.g. where and how);
  2. SiteMinder may add or remove Demand Plus Partners from Demand Plus;
  3. Demand Plus Ads have a 30-day attribution window based on the last click;
  4. booking cancellations and no-shows may result in lower rankings; and
  5. SiteMinder has no control over the way in which Demand Plus Ads are displayed, their prominence in any search list or result, or the application of any algorithm or other automated method of determining their placement.

3.5

Conditions to access and use

Access to Demand Plus and the Services is granted subject to the following conditions:

  1. they may only be used by the Customer Users;
  2. they must not be used to provide, in whole or in part, any service or functionality which is similar to Demand Plus or competes with SiteMinder’s business;
  3. the Customer must not reproduce or copy the SiteMinder Software in whole or in part except for backup and archive purposes; and
  4. they must not be used for any purpose other than the purpose for which it is supplied under the Agreement, including (without limitation):
    1. for any improper or unlawful purpose;
    2. to create for the purpose of, or in a manner that transmits, publishes or communicates material which is defamatory, offensive, abusive, indecent, discriminatory, menacing, unwanted, in breach of confidence, illegal or which brings SiteMinder or any of SiteMinder’s agents into disrepute;
    3. in any way which damages or interferes with SiteMinder Infrastructure or the supply of Demand Plus to other SiteMinder customers;
    4. to host or transmit information which contains viruses or other harmful code or data designed to interrupt, damage, destroy or limit the functionality of any software, hardware or equipment;
    5. modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the SiteMinder Software; or
    6. for any benchmarking or competitive purpose or to develop a similar or competitive product.

3.6

Warranties

SiteMinder represents and warrants that:

  1. Demand Plus will be supplied and supported by appropriately qualified and trained personnel acting with due skill, care and diligence;
  2. it holds and has complied with all permits, licenses and other governmental authorisations necessary for conducting, carrying out and continuing its operations and business and it owns, controls or has obtained any and all necessary rights, licenses, permits and clearances required to provide Demand Plus; and
  3. it is PCI DSS compliant and will remain compliant for the duration of the Agreement.

3.7

Warranty limitation
  1. The warranties provided in clause 3.6 are exhaustive and exclude all other warranties (express or implied) to the maximum extent permitted by law.
  2. SiteMinder does not guarantee continuous, uninterrupted access to Demand Plus, SiteMinder Software and Services, and operation of the SiteMinder Software and Services may be interfered with by numerous factors outside of SiteMinder’s control. The Customer is responsible for implementing appropriate security processes, systems and procedures to protect itself from the download of any virus, worms, Trojan horses or other code that has contaminating or destructive qualities.

3.8

Username and password
  1. The Customer will be issued with a username and password to access Demand Plus. The Customer must not disclose the username or password to any person (other than Customer Users) without the authorisation of SiteMinder.
  2. The Customer must maintain adequate security to ensure that no unauthorised person gains access to its username and password.
  3. The Customer is solely liable for any data input into Demand Plus or SiteMinder Infrastructure by a:
    1. Customer User;
    2. person authorised by the Customer or a Customer User to use the username and password; or
    3. person who has used the username and password as a result of the Customer’s failure to maintain adequate security.

3.9

Storage of credit card data
  1. The Customer must not store credit card data, including name, number, expiry details or CVV in any part of Demand Plus or a database which is not specifically designed for the collection or storage of credit card information, e.g. a free text field, where the data is stored unencrypted and freely accessible.
  2. The Customer indemnifies SiteMinder in respect of any loss or damage suffered as a result of, or in connection with, a failure to comply with this clause 3.9.

3.10

Ownership of Property
  1. Where the Customer is the manager of the Property on behalf of a Property owner, the Customer represents and warrants to SiteMinder that it is, and will remain for the duration of the Term, authorised by the Property owner to manage the Property and enter into the Agreement.
  2. SiteMinder may terminate the Agreement if the Customer’s authorisation is terminated by the Property owner for any reason (as evidenced by written notice from the Property owner).

3.11

Suspension or termination for breach

SiteMinder may suspend or terminate access to Demand Plus and the Services in the event of any breach or suspected breach of this clause 3.

3.12

Access to Licensed Content

The Customer acknowledges and agrees that if there is a dispute as to the ownership of the Customer’s business or the Property, in addition to the right to suspend or terminate access to Demand Plus under clause 3.11, SiteMinder may, in its sole discretion, allow the Property owner to download Licensed Content held on behalf of the Customer.

4. Fees and payment

4.1

Fees

The Customer must pay the Fees for each Completed Stay for the duration of the Term.

4.2

Invoicing and payment
  1. SiteMinder will invoice the Customer monthly in arrears for Fees due under the Agreement. The Customer must pay the invoiced Fees by the due date for payment specified in the invoice in cleared funds without set-off, counterclaim or deduction of any kind including in respect of taxes, levies, imports, duties, charges (including intermediary bank charges) or fees.
  2. Fees will be billed in the Invoice Currency. Where bookings have been paid in a currency other than the Invoice Currency, SiteMinder will use Oanda’s foreign exchange rates (or other publicly available rates) to convert the amounts payable so that the Fees are billed in the Invoice Currency.
  3. The Customer may, within the first 7 days of each calendar month, notify SiteMinder of any cancellations and no-shows during the previous calendar month by completing a reservations reconciliation via the SiteMinder extranet (Cancelled Bookings). Cancelled Bookings will not be invoiced.
  4. SiteMinder may query any Cancelled Booking and the Customer must provide all relevant information to support the Customer’s claim.
  5. The Customer will not be entitled to a refund of any portion of the Fees in respect of bookings which have been cancelled or have otherwise not completed following termination of the Agreement.

4.3

Disputed invoices
  1. If the Customer disputes any part of an invoice submitted by SiteMinder, the Customer must notify SiteMinder in writing within 15 days of receipt of the invoice of the reasons for disputing the invoice and pay the undisputed amount on or before the due date for payment. If the Customer does not notify SiteMinder within 15 days of receipt of the invoice, the Customer will be deemed to have accepted the invoice as accurate.
  2. The parties must endeavour to resolve the disputed amount between themselves within 15 days of the notification being given by the Customer. Failing this, the dispute resolution procedure set out in clause 16 applies.

4.4

Failure to pay

If the Customer fails to make a payment due under the Agreement when called upon to do so, SiteMinder may do any one or more of the following either instead of, or in addition to terminating the Agreement in accordance with clause 12.1:

  1. charge the Customer default interest on the overdue amount from the due date for payment up to the date of actual payment at the Interest Rate;
  2. suspend access to Demand Plus until all amounts due have been paid (including any interest); and
  3. charge the Customer an AU$150 reinstatement charge to reactivate any suspended account.

4.5

Tax
  1. All Fees are exclusive of Tax unless stated otherwise by SiteMinder in writing.
  2. If Tax is applicable to any supply made by SiteMinder under the Agreement, SiteMinder may add to the Fees an amount equal to the applicable Tax.
  3. The Customer agrees to pay SiteMinder such Tax charges in the same manner and at the same time as the payment for the relevant Fees.
  4. SiteMinder will issue tax invoices to the Customer for the purposes of Tax.
  5. If required by applicable law, SiteMinder will give the Customer an adjustment note arising from the adjustment event relating to a taxable supply made under, or in connection with the Agreement within 30 days after the date SiteMinder becomes aware of the adjustment event.

4.6

Price increase

SiteMinder may vary the Fees at any time. If SiteMinder wishes to vary the Fees, it must provide the Customer with at least 30 days’ written notice. If the Customer does not accept the new Fees, it must terminate the Agreement prior to the end of the notice period.

5. Customer’s obligations

The Customer must:

  1. maintain the necessary infrastructure to support the provision of Demand Plus and the Services;
  2. ensure that all information and content inputted or uploaded to Demand Plus or SiteMinder Infrastructure is accurate and up to date;
  3. only input, upload, publish or provide SiteMinder with content that it owns all the rights to, or that the rights holder has granted it permission to use for such purposes;
  4. comply with any operational procedures, technical specifications or documentation provided by SiteMinder or Demand Plus Partners, or other reasonable directions given by SiteMinder from time to time in relation to Demand Plus;
  5. comply with any applicable law and the requirements or directions of Government Agencies;
  6. provide SiteMinder with all information, assistance and co-operation reasonably requested by SiteMinder in order to enable SiteMinder to meet its obligations under the Agreement;
  7. not do, or omit to do, anything which the Customer is aware or ought reasonably to be aware, could have an adverse effect on the operation or maintenance of Demand Plus or SiteMinder Infrastructure; and
  8. provide SiteMinder and its contractors, agents and employees with prompt access to the Customer Software Application and to the Customer’s personnel, equipment, data and information as is reasonably required for the purpose of delivering Demand Plus.

6. Maintenance and suspension

  1. SiteMinder may perform scheduled and unscheduled maintenance or perform updates in relation to the SiteMinder Infrastructure or Demand Plus from time to time. SiteMinder will use reasonable efforts to give the Customer notice before undertaking any scheduled maintenance that might impact on the operability of Demand Plus.
  2. SiteMinder may without liability and with immediate effect suspend Demand Plus or a Service or access to the SiteMinder Infrastructure for as long as SiteMinder, acting reasonably, considers it necessary to comply with any law, protect any person, system or asset or equipment from harm, or enable authorised persons to attend to any emergency.

7. Support

The SiteMinder support team will provide basic support to enquiries concerning Demand Plus during the Customer’s local business hours.

8. Faults

  1. The Customer must report Faults to the SiteMinder support team without undue delay.
  2. Before reporting a Fault, the Customer should take all reasonable steps to ensure that the Fault is with Demand Plus and not caused by any of the Customer Software Applications or any Customer content or equipment.
  3. SiteMinder is not responsible for rectifying Faults where the Fault is with the Customer’s Software Application.
  4. If a Fault results in a double or incorrect booking, the Customer is expected to refund the affected guests. To the extent permitted by law, SiteMinder will not be responsible for any gifts or compensation provided to affected guests (including the costs of alternative accommodation).

9. Personal Information and privacy

9.1

Personal Data
  1. For the purposes of this clause 9, “Personal Data” means the Personal Information of a Customer, Customer Users and Guests.
  2. If Personal Data is collected, used, handled, processed and/or transferred under the Agreement by SiteMinder on behalf of the Customer, the Customer is the data controller and SiteMinder is the data processor. The purpose of processing Personal Data by SiteMinder is the performance of Services pursuant to the Agreement.
  3. If Personal Data is collected, used, handled, processed and/or transferred under the Agreement, each party must comply with the applicable Data Protection Requirements and the terms of the Agreement.

9.2

SiteMinder’s obligations

SiteMinder must:

  1. process Personal Data only in accordance with the Customer’s reasonable and lawful written instructions from time to time, for the purposes of performing its obligations under the Agreement and for no other purpose except as otherwise stated in clause 9.4 of the Agreement or as required by law;
  2. implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of processing the Personal Data, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing;
  3. ensure that persons authorised by it to process the Personal Data are under confidentiality obligations in respect of the Personal Data;
  4. if requested, at the Customer’s cost, provide reasonable assistance to the Customer in complying with the rights of data subjects and with the Customer’s statutory obligations relating to data security, data breach notification, data protection impact assessments and related prior consultation procedures, taking into account the nature of processing and the information available to SiteMinder;
  5. promptly notify the Customer after becoming aware of a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised access to or disclosure of Personal Data and SiteMinder and the Customer shall act in good faith in developing agreed public statements and any necessary notifications to data subjects in respect of any of the foregoing provided that nothing in this paragraph prevents a party from complying with its obligations under Data Protection Requirements;
  6. save only to the extent required by law, after expiry or termination of the Agreement, in accordance with clause 12.4, return to the Customer or destroy all Personal Data in the possession or control of SiteMinder;
  7. make available to the Customer such information as is reasonably necessary to demonstrate SiteMinder’s compliance with this clause 9;
  8. at the Customer’s cost, allow the Customer to appoint an independent auditor to audit and inspect SiteMinder’s compliance with this clause 9. Such audit may occur once per calendar year, unless Data Protection Requirements applicable to the Customer require more frequent audit. Such an audit shall be carried out during business hours and the Customer must provide at least 30 days’ notice of any such audit, unless the Customer can demonstrate that it has genuine suspicion that SiteMinder has breached its obligations in this clause 9 in which case the Customer must provide at least 2 Business Days’ notice of any such audit;
  9. not transfer the Personal Data to a country outside the European Union without the authorisation of the Customer or as otherwise provided for in the Agreement unless the relevant territory ensures an adequate level of protection or appropriate standard contractual clauses approved by the EU have been put in place or other appropriate safeguards have been implemented; and
  10. will have the general ability to appoint subcontractors who may process Personal Data in order to perform SiteMinder’s obligations under the Agreement provided that the contracts with such subcontractors shall incorporate terms which are substantially the same as those set out in this clause 9 and which encompass the obligations referred to in Article 28(3) of the European Union General Data Protection Regulation. SiteMinder will notify the Customer of such subcontractors if and when they are appointed or replaced.

9.3

Customer’s obligations
  1. The Customer warrants, represents and undertakes that all instructions given to SiteMinder by the Customer in respect of Personal Data will, at all times, be in accordance with the applicable Data Protection Requirements and will provide such evidence as SiteMinder requests to demonstrate that such instructions are in accordance with the applicable Data Protection Requirements.
  2. The Customer must ensure that any Personal Data it collects is collected and supplied to SiteMinder in a manner compliant with the Data Protection Requirements including by providing all notices and obtaining all consents required under the Data Protection Requirements in order for SiteMinder to process Personal Data fairly and lawfully in connection with the Services and in accordance with the Agreement and must immediately notify SiteMinder on becoming aware of Personal Data becoming inaccurate.
  3. If the Customer requests SiteMinder to transfer the Personal Data outside the European Union, the Customer must ensure that appropriate safeguards are in place to permit the transfer of the Personal Data outside the European Union.

9.4

Use and disclosure of Personal Information

The Customer acknowledges that the collection, use and storage of Personal Data is necessary to enable SiteMinder to perform its obligations under the Agreement and for:

  1. purposes relating to the supply of the Services to the Customer, including:
    1. billing and account management;
    2. development of Demand Plus, other SiteMinder products and the Services;
    3. managing the Customer’s relationship with SiteMinder;
    4. marketing Demand Plus, the Services and other SiteMinder products to the Customer; and
    5. transferring data to and from Demand Plus Partners; and
  2. the disclosure of Personal Information of the Customer, Customer Users and Guests:
    1. to a Government Agency to assist in the investigation of crime or the enforcement of any laws; and
    2. to any third party as required by law.

9.5

Privacy Policy

SiteMinder must at all times comply with its Privacy Policy, available at the Website. If there is any inconsistency between SiteMinder’s Privacy Policy and this clause 9, this clause 9 will prevail.

10. Confidentiality

10.1

Confidentiality obligations

Each party (Recipient) which receives Confidential Information of the other party (Disclosing Party) under the Agreement acknowledges that all Confidential Information provided to it, or to which it is exposed, is confidential to the Disclosing Party.

10.2

Loss suffered

The Recipient acknowledges and agrees that the Confidential Information is, by virtue of its special nature, valuable property of the Disclosing Party and that the Disclosing Party may suffer damage or loss by any disclosure by the Recipient of the Confidential Information.

10.3

Non-disclosure

The Recipient must:

  1. treat all Confidential Information as confidential and not make public or disclose to any other person that Confidential Information unless it has first obtained the written consent of Disclosing Party to do so;
  2. prevent third parties from gaining access to the Confidential Information; and
  3. upon the Disclosing Party’s request or expiry or termination of the Agreement, deliver and surrender to the Disclosing Party all records of Confidential Information held by it.

10.4

Required disclosure

The Recipient may disclose Confidential Information if required to do so by a Government Agency or any law or court order, or the rules of any applicable securities exchange after first giving notice to Disclosing Party and after taking all practicable steps to cooperate with the Disclosing Party to limit the disclosure to the maximum extent permitted by law.

10.5

Permitted disclosure

Each party may disclose Confidential Information to any of its employees, contractors or advisers on a need to know basis as long as each such recipient is bound by obligations of confidence substantially the same as contained in the Agreement.

10.6

Exceptions

The obligations under this clause 10 shall not apply to Confidential Information which (whether before or after execution of the Agreement):

  1. is publicly known and made generally available in the public domain through no breach of the Agreement by the Recipient;
  2. is already in the possession of the Recipient at the time of disclosure by the Disclosing Party as shown by the Recipient’s files and records immediately prior to the disclosure;
  3. is acquired or received by the Recipient from a third party lawfully in possession of such information and without breach of such third party’s obligations of confidentiality to the Disclosing Party; or
  4. is independently developed by the Recipient without use or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Recipient’s possession.

11. Intellectual Property Rights

11.1

Ownership of Intellectual Property Rights
  1. All Intellectual Property Rights which are owned by either party as at the date of the Agreement will at all times remain owned by that party exclusively and nothing in the Agreement may be construed as transferring the ownership of the Intellectual Property Rights of one party to another.
  2. Nothing in the Agreement confers on the Customer any rights, title or interest in, or licence to use, SiteMinder’s Intellectual Property Rights.

11.2

SiteMinder Software

The Customer acknowledges and agree that:

  1. SiteMinder Software is Confidential Information of SiteMinder and the Customer must not use or disclose any Confidential Information without SiteMinder’s prior written consent;
  2. it will not attempt to assign, transfer, lease or rent the SiteMinder Software to any third party;
  3. it will not attempt to modify or create any derivative work of the SiteMinder Software;
  4. it will not remove, modify or obscure any copyright, trade mark or other proprietary rights notices that are contained in or on the SiteMinder Software;
  5. it will not reverse assemble, disassemble, reverse engineer or otherwise attempt to access or derive the source code, the underlying ideas, algorithms, structure or organisation of the SiteMinder Software; and
  6. it will indemnify and hold SiteMinder harmless from all claims, of whatever nature, made by any third party arising from or in connection with any improper, unlawful or unauthorised use of or dealing with the SiteMinder Software, by the Customer.

11.3

Licensed Content

In addition to the license granted in clause 3.2, the Customer grants SiteMinder the right to use Licensed Content for its commercial purposes, on condition that data is only used on an aggregated basis and otherwise in such a way that the identity of the Customer (if an individual), Customer Users and Guests are not readily ascertainable.

12. Termination

12.1

Termination

Either party may terminate the Agreement:

  1. by providing written notice to the other party;
  2. if the other party has committed a material breach of the Agreement and either:
    1. the breach is not remedied within 14 days of the date written notice of the breach is served on the breaching party; or
    2. the breach is not capable of remedy

      3. (for the purposes of this clause 12.1(b), a failure to pay any amount on the due date for payment is a material breach, and a request from SiteMinder’s billing team to make the payment after the due date constitutes notice served under subclause (i));

  3. immediately if the other party suffers an Insolvency Event; or
  4. in accordance with clause 13.2 (Force Majeure Event).

12.2

SiteMinder Termination

SiteMinder may terminate the Agreement immediately if the Customer breaches clause 3.3(a) or any condition in clause 3.5.

12.3

Actions on termination

On termination of the Agreement:

  1. the Customer must cease using Demand Plus and any associated access codes or keys;
  2. SiteMinder may invoice the Customer in respect of the provision of Demand Plus and any Services prior to the date of termination which have not been invoiced; and
  3. all unpaid Fees owing to SiteMinder will become immediately due and payable.

12.4

Retrieval of Hotel Data

If the Customer wants to retain any Hotel Data stored in Demand Plus it must be downloaded prior to termination of the Agreement or requested from SiteMinder within 30 days thereafter. The Customer acknowledges that after such time, SiteMinder will delete the Hotel Data.

13. Force Majeure

13.1

No liability

Where any failure or delay by a party (Affected Party) in the performance of its obligations (excluding payment obligations) under the Agreement is caused, directly or indirectly, by a Force Majeure Event:

  1. the Affected Party must as soon as practicable give the other party written notice of that fact;
  2. the Affected Party is not liable for that failure or delay; and
  3. the Affected Party’s obligations under the Agreement are suspended, to the extent to which they are affected by the relevant Force Majeure Event, for the duration of the Force Majeure Event.

13.2

Termination for Force Majeure Event

If the Force Majeure Event continues for more than 30 consecutive days, while it continues, either party may terminate the Agreement by giving written notice to the other.

14. Limitation of liability

14.1

No Consequential Loss

Unless expressly stated to the contrary in the Agreement, neither party is liable to the other for any Consequential Loss however caused in connection with or related to the Agreement or otherwise in respect of Demand Plus.

14.2

Resupply of Demand Plus

Where legislation implies in the Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of liability under such condition or warranty, the condition or warranty is deemed to be included. The liability of SiteMinder for any breach of such condition or warranty is limited, at the option of the Customer, to one or more of the following:

  1. if the breach relates to Demand Plus:
    1. the replacement of Demand Plus or the supply of an equivalent product;
    2. the repair of Demand Plus;
    3. the payment of the cost of replacing Demand Plus or of acquiring an equivalent product; or
    4. the payment of the cost of having Demand Plus repaired; and
  2. if the breach relates to Services:
    1. the supplying of the Services again; or
    2. the payment of the cost of having the Services supplied again.

14.3

Limitation of liability
  1. SiteMinder’s total aggregate liability in respect of all claims made under the Agreement (including in respect of any claims in tort or negligence) is limited to the total Fees paid by the Customer in the preceding 12 months.
  2. The limitations of liability in this clause do not apply to the indemnity in clause 15, or in relation to any liability arising as a result of:
    1. the death or personal injury of a person, caused in each case by SiteMinder or its employees; or
    2. SiteMinder’s fraudulent or criminal actions.

15. Indemnity

15.1

Indemnity

SiteMinder indemnifies and will hold the Customer harmless against any claim that Demand Plus, or the Customer’s use of Demand Plusthe in accordance with the Agreement, infringes the Intellectual Property Rights of a third party (Indemnity Claim).

15.2

Notification

SiteMinder has no liability in respect of an Indemnity Claim under clause 15.1 unless the Customer complies with the following conditions:

  1. as soon as reasonably practicable after becoming aware of an Indemnity Claim and in any event within 5 Business Days, the Customer must notify SiteMinder in writing, providing details of the Indemnity Claim;
  2. the Customer must make no admission of liability; and
  3. the Customer must fully assign to SiteMinder the right to defend or compromise any claim, acting in its absolute discretion.

16. Disputes

16.1

Dispute resolution prior to litigation
  1. The parties must exhaust the following provisions before initiating any legal proceedings.
  2. When a dispute arises, the disputing party must give notice in writing to the other party setting out in detail the nature of the dispute.
  3. The parties must use reasonable endeavours to resolve the dispute notified under clause (a) by negotiation between a senior manager of each of them.
  4. If senior managers of the parties have not resolved any dispute within 20 Business Days of notification of the dispute, either party may take such additional action as it deems necessary to resolve the dispute, including initiating legal proceedings.

16.2

Interlocutory relief

Nothing in this clause 16 prevents a party from seeking urgent interlocutory relief from a court at any time.

17. General

17.1

No assignment
  1. If the Customer wishes to assign, charge or deal with any of its rights and obligations under the Agreement it must first obtain the prior written consent of SiteMinder, which must not be unreasonably withheld or delayed.
  2. SiteMinder may assign, charge or deal with any of its rights and obligations under the Agreement by providing prior written notice to the Customer.

17.2

Change in Control

If a change in Control occurs in respect of the Customer and the new controller is (a) a competitor to SiteMinder or (b) poses a material threat to SiteMinder’s business or the Customer sells the Property, SiteMinder may terminate the Agreement and the supply of Demand Plus and the Services by providing prior written notice to the Customer.

17.3

Notices
  1. A notice or other communication required or permitted to be given by one party to another must be in writing and in English.
  2. A notice or other communication is taken to have been given:
    1. if delivered personally, immediately upon delivery;
    2. if mailed, on the second Business Day after posting; and
    3. if emailed, on the date sent, unless the recipient is able to demonstrate that the email failed to be delivered.

17.4

Governing law and jurisdiction

The Agreement is governed by the laws of, and the parties submit to, the exclusive jurisdiction of the courts in:

  1. London, United Kingdom, if the Customer is principally located in Europe, the Middle East or Africa;
  2. Dallas, Texas, if the Customer is principally located in the USA, Canada, Central or South America; and
  3. New South Wales, Australia, if the Customer is principally located anywhere else in the world.

17.5

Further assurance

Each party must, from time to time, do all things (including executing all documents) necessary or desirable to give full effect to the Agreement.

17.6

Variation

The Agreement may not be amended or varied except by written agreement.

17.7

Attorneys

Each attorney and any other individual entering into the Agreement on behalf of a party warrants that he or she has full and proper authority to do so and is not aware of any revocation or suspension of the relevant power of attorney or other authorisation.

17.8

Whole agreement

This Agreement:

  1. is the whole agreement between the parties; and
  2. supersedes all oral and written communications by or on behalf of any of the parties in relation to the subject matter of the Agreement.

17.9

No reliance on warranties and representations

In entering into the Agreement, each party acknowledges that:

  1. it has not relied on any warranty or representation (whether oral or written) in relation to the subject matter of the Agreement other than as expressly stated in the Agreement; and
  2. it has relied entirely on its own enquiries in relation to the subject matter of the Agreement.

17.10

Survivability

Each indemnity, in addition to the covenants, conditions and provisions which are capable of having effect after the expiration or termination of the Agreement, will remain in full force and effect.

17.11

Severance

If any part of the Agreement is legally unenforceable, the Agreement does not include it. The remainder of the Agreement continues in full force.

17.12

No merger

Nothing in the Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that a party may have against another party or any other person at any time.

17.13

Consent

Other than when providing consent to assignment under clause 17.1, where the Agreement gives SiteMinder a right or power to consent or approve in relation to a matter under the Agreement, SiteMinder may withhold any consent or approval or give consent or approval conditionally or unconditionally and in its absolute discretion. The party seeking consent or approval must comply with any conditions SiteMinder imposes on its consent or approval.

17.14

Relationship

The parties agree that the Agreement does not create any relationship of partnership or employment, franchise, joint venture or agency and that SiteMinder is an independent contractor.

17.15

No waiver

A delay or failure by a party in exercising a right, power or remedy arising under, or in connection with, the Agreement will not be considered a waiver of such party’s right, power or remedy. Any waiver must be in writing and signed by the party granting the waiver and it is only effective to the extent set out in that waiver.

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