Reseller Terms
1. Parties and Term
1.1.(Parties) An Agreement is entered into between the applicable SiteMinder contracting entity and Reseller on the terms of the Order, these Reseller Terms, the DPA and the applicable Services Schedules.
1.2.(Agreement Term) This Agreement commences on the date on which the first Order under this Agreement is executed by both parties and continues until the last Order entered under this Agreement has expired, unless terminated by either party under these Reseller Terms.
1.3. (Order Term) Each Order commences on the Order Commencement Date and continues for the Order Implementation Period (if any), the Order Initial Term and each Order Renewal Term, unless terminated earlier under this Agreement. Each Order will automatically renew for successive Order Renewal Terms, unless a party gives notice of non-renewal at least six (6) months before the expiry of the then-current term.
2. Appointment
2.1.(Appointment) Subject to Reseller’s compliance with this Agreement, SiteMinder appoints Reseller as an authorised, non-exclusive reseller for the limited purposes of marketing and selling the Services to End Users in the Territory for the relevant Order Term. Reseller may market itself as an ‘Authorised Reseller’ of the Services.
2.2.(Nominated Representative) Reseller agrees that SiteMinder is entitled to rely on any instruction from the Nominated Representative regarding all matters related to this Agreement.
2.3.(No Right to Use) Nothing in this Agreement grants Reseller any right to use or access any Service for its own use. Such use or access will be governed by a separate agreement. This clause does not apply to use of the Services for testing, training or demonstration by Reseller.
2.4.(Appointment Not Exclusive) Subject to clause 2.5, SiteMinder may itself or through others, market, sell or service the Services in the Territory and elsewhere.
2.5.(Non-Compete) Reseller acquires and resells the Services on the condition that SiteMinder does not actively solicit an End User to whom Reseller already supplies the Services to acquire those Services directly from SiteMinder, or to cease dealing with Reseller. SiteMinder supplies the Services on the condition that Reseller does not: (a) actively solicit an existing SiteMinder customer to acquire the same or similar services from Reseller, or induce that customer to cease dealing with SiteMinder; or (b) use the Services, or any information obtained from them, to benchmark against a competing product or service, or to design, develop or market (or assist any person to design, develop or market), a product or service that competes with the Services.
2.6.(Partners) SiteMinder reserves the right to add or remove a Partner from the Services. SiteMinder is not liable for any act or omission of the Partner.
3. Reseller Obligations
3.1.Reseller must:
(a)(Sales and Conduct) use commercially reasonable efforts to promote and sell the Services in the Territory; not restrict, discourage or limit End User adoption of the Services; conduct its business professionally and in a manner that reflects favourably on SiteMinder; and not engage in deceptive, misleading, unethical or detrimental practices;
(b)(Scope of Appointment) not actively market or sell the Services outside the Territory; not appoint or authorise any third party, including an Affiliate, to resell or sublicence them; and not, without SiteMinder’s prior written consent, actively market, solicit or sell them to a group of five or more (5+) associated or commonly owned hotels, which SiteMinder reserves to itself;
(c)(Branding and Marketing) comply with the Branding Guidelines; use only marketing materials supplied or approved by SiteMinder; obtain SiteMinder’s prior written approval before publishing SiteMinder branding; co-brand the applicable solution as “[Reseller product] powered by SiteMinder”; and clearly identify SiteMinder as the developer and provider of the Services;
(d)(Reseller Support) where the Order specifies Reseller Provided Support, provide the support to End Users as set out in Item 1 of the Support Schedule;
(e)(Access and Information) give access to any personnel or systems SiteMinder reasonably requires; provide any information, data and consumer disclosures SiteMinder reasonably requires; and ensure that all such information, data and consumer disclosures are accurate, complete, kept up to date, and either owned by Reseller or used with the right permissions;
(f)(Directions and Policies) comply with SiteMinder’s reasonable directions, the Reseller Policies, the Services Schedules and Operating Procedures, as notified to Reseller from time to time;
(g)(Forecasts) provide forecasts requested by SiteMinder;
(h)(Authorisations, Capabilities and Consents) maintain all required Authorisations and appropriately trained and certified personnel; and provide the information, access, consents and licences reasonably required for SiteMinder to perform this Agreement;
(i)(Systems and Integration) at its cost, provide and maintain all systems, facilities, equipment, infrastructure, connectivity and integrations required to resell and support the Services, including integration with Reseller systems, End User systems and third-party products, and ensure that its environment remains compatible with SiteMinder’s notified requirements;
(j)(Updates) implement all updates, patches, enhancements, releases and modifications notified by SiteMinder within thirty (30) days, or any shorter reasonable period specified by SiteMinder. SiteMinder is not liable for any incompatibility, degradation, error, outage or security vulnerability caused or contributed to by Reseller’s failure to do so;
(k)(Fault and Error Reporting) promptly report to SiteMinder’s support teams any failure of the Services to operate in accordance with the Services Schedules, including any pricing error; and procure that, for any pricing error, End User takes all action necessary to rectify the error, including promptly notifying affected Guests, arranging refunds, rebooking at the correct rate, or cancelling the booking. For the avoidance of doubt, SiteMinder has no liability to compensate End User or affected Guests;
(l)(Security) maintain appropriate technical and organisational measures to reduce the risk of fraud and protect the Services, SiteMinder’s systems, credentials, Personal Data and Confidential Information against unauthorised access, use, modification, disclosure, loss or damage;
(m)(End User Arrangements) ensure each End User is legally bound by the SiteMinder End User Terms and Conditions, as updated from time to time, without amendment by Reseller; provide any Reseller End User Agreement to SiteMinder on request; and promptly notify SiteMinder of any known or suspected breach or unauthorised use. SiteMinder may enforce those terms directly against the End User;
(n)(Use Restrictions) not use, and not permit any person to use, the Services (including any services of Partners): (i) unlawfully or fraudulently; (ii) in a way that disrupts, infringes or is defamatory, deceptive, harmful or damages the Services or SiteMinder systems; (iii) for the benefit of any person, country or organisation that is embargoed or blocked by any Government Agency; (iv) to initiate or facilitate peer-to-peer money transmissions or intercompany transactions; (v) to act as a pass-through agent without adding any additional value to Guests; or (vi) to accept payments for services not delivered or deliverable;
(o)(Unauthorised Use) not, and not permit any person to: (i) modify, adapt, reverse engineer, decompile, disassemble or create derivative works from the Services; (ii) restrict any features of the Services; or (iii) circumvent, scrape or obtain unauthorised access to the Services; and
(p)(Compliance with law and PCI DSS) comply with, and be solely responsible for complying with PCI DSS and all applicable laws, including Competition Laws, consumer law, tax, invoicing and business record-keeping laws, sanctions, export control, anti-money laundering, modern slavery and anti-bribery laws (including any laws relating to the operation of Reseller’s business); respond to any request from a Government Agency for information, data, records or reports relating to its business; maintain its own records and backups of any data it is legally required to keep (including data generated through the Services); and promptly notify SiteMinder of any non-compliance, proceeding or regulatory action relating to the Services, or any material complaint in relation to the Services.
4. SiteMinder Obligations
4.1.SiteMinder will:
(a)(Supply of Services) provide the Services and End User access in accordance with this Agreement and the applicable Services Schedules;
(b)(Account Manager) provide an account manager for the relationship with Reseller;
(c)(SiteMinder Support) where the Order specifies SiteMinder Provided Support, provide the support to Reseller, as set out in Item 2 of the Support Schedule;
(d)(Scheduled Maintenance and Upgrades) use reasonable efforts to schedule maintenance windows in a way that minimises disruption. The Services may be interrupted periodically for maintenance or upgrades, which will not exceed one hour each week; and
(e)(Compliance with Laws and PCI DSS) comply with PCI DSS and applicable laws in connection with this Agreement.
4.2.(Service Change or Discontinuance) SiteMinder may update or modify a Service at any time, provided the update or modification does not materially reduce the overall functionality of that Service. SiteMinder may discontinue a Service or make a change that materially reduces its overall functionality, by giving Reseller at least thirty (30) days’ prior written notice (or such shorter notice as is reasonable where the change is required by law, a Partner or for security reasons). If such a change or discontinuation materially and adversely affects Reseller, Reseller may terminate the affected Order by written notice before the change takes effect, and SiteMinder will refund any Fees prepaid for the period after termination. Subject to clause 14.4, SiteMinder has no liability arising from a discontinuation. If any Service is discontinued, the Fees for that Service will accrue on a pro rata basis up to and including the date of discontinuation. Notwithstanding this clause 4.2, Reseller acknowledges that the functionality of the services provided by Partners may be updated or changed from time to time, without notice to Reseller.
5. Use of End User Data
5.1.(Use for Performance) Reseller acknowledges that the collection, use, disclosure, modification, sharing and storage of End User data, information and content (including the Personal Data of End Users and Guests) is necessary to enable SiteMinder, its Affiliates and Partners to perform their obligations under this Agreement, including for: (a) billing and account management; (b) product and service delivery and development; (c) managing Reseller’s relationship with SiteMinder and Partners; (d) marketing the Services and other services; (e) compliance with the law; and (f) investigating crime or enforcing the law.
5.2.(Commercial Purposes) Reseller grants SiteMinder the right to use all data relating to End User Properties, for its commercial purposes, including room rates, room types, room availability, rate plans, restrictions, occupancy, Guest data, reservations, images and content, on the condition that data is only used on an aggregated basis and otherwise in such a way that the identity of any individual is not readily ascertainable.
6. Artificial Intelligence
6.1.(SiteMinder’s use of AI) Reseller acknowledges that: (a) SiteMinder develops the AI Systems and may make them available under its own name; and (b) Services may include AI Systems (whether developed by SiteMinder, Partners or other third parties) which may generate content, provide recommendations and insights, interact with End Users or Guests through conversational interfaces, and make or support automated decisions.
6.2.(Reseller’s use of AI) If Reseller supplies any AI System as part of the Services, Reseller may itself become the provider of that AI System under applicable law. Reseller must notify SiteMinder in writing before supplying an AI System in connection with the Services.
6.3.(Outputs) Outputs generated by AI Systems are probabilistic and may be inaccurate, incomplete or unsuitable for a particular End User’s circumstance. Neither Reseller nor any End User may rely on any output as the sole basis for a decision. Outputs do not constitute professional, legal, financial, tax or pricing advice.
6.4.(Representations) Reseller must not make any representation, warranty or statement about the AI Systems, their capabilities, accuracy or performance, except as expressly set out in the applicable Services Schedule.
7. Fees
7.1.(Fees) For each Order, Reseller must pay the Fees in the Currency, for the duration of the applicable Order. Unless otherwise set out in the Order, any additional set-up fees specified in the Order are one-off fees, payable on creation of each End User account.
7.2.(Taxes) All amounts owing under this Agreement are exclusive of applicable taxes (which are Reseller’s responsibility unless stated otherwise in writing). If required by applicable law, SiteMinder will give Reseller an adjustment note arising from the adjustment event relating to a taxable supply made under, or in connection with this Agreement, within twenty (20) Business Days after the date SiteMinder becomes aware of the adjustment event.
7.3.(Price Increases) SiteMinder may increase the Fees from time to time following the Order Initial Term by providing at least thirty (30) days’ written notice to Reseller. If Reseller does not accept the new Fees, it may terminate the affected Order, by written notice to SiteMinder, given before the new Fees take effect.
7.4.(Minimum Fee) In each measurement period specified in the Order, Reseller must pay the greater of: (a) accrued Fees for Services supplied; or (b) the applicable Minimum Fee set out in the Order. Where a Minimum Property Count is specified, the Minimum Fee is calculated by multiplying the Minimum Property Count with the applicable fees set for the Room Banding specified in Schedule 1 to the Order, for each period in the measurement period. SiteMinder will invoice Reseller for any shortfall. If no Minimum Fee is specified for a period, the previous period’s Minimum Fee applies. After the first nine (9) months of the Order Term, SiteMinder will review Reseller’s progress to meet the Minimum Fee for the first year of the Order Term. If Reseller has not achieved 60% of the Minimum Fee by month nine (9) of the first year of the Order Term, SiteMinder may terminate this Agreement on twenty (20) Business Days’ notice. Before exercising the termination right in this clause, SiteMinder will meet with Reseller to discuss in good faith the relationship going forward.
8. Profit Sharing
8.1.(Profit Share) For:
(a)(Channels Plus) Channels Plus, for each fortnight during the applicable Order Term if:
(i) an OTA collects the Channels Plus Revenue:
(A)SiteMinder will invoice the OTA the Channels Plus Revenue less the OTA Commission, calculated for that fortnight; and
(B)SiteMinder will pay Reseller the Channels Plus Profit Share (if any) within five (5) Business Days of receipt from the OTA;
or
(ii)Reseller collects the Channels Plus Revenue, calculated for any fortnight; SiteMinder will invoice Reseller and Reseller must pay SiteMinder the Channels Plus Revenue less the Channels Plus Profit Share (if any), calculated for that fortnight;
(b)(Demand Plus) Demand Plus, Reseller must pay SiteMinder, for each fortnight of the applicable Order Term, the Demand Plus Revenue less the Demand Plus Profit Share calculated for the relevant fortnight; and
(c)(Dynamic Revenue Plus) Dynamic Revenue Plus, Reseller must pay SiteMinder, for each fortnight of the applicable Order Term, Dynamic Revenue Plus Revenue less the Dynamic Revenue Plus Profit Share, calculated for the relevant fortnight.
8.2.(Notice of RRP) For:
(a)Channels Plus, for each fortnight during the applicable Order Term:
(i)SiteMinder will notify Reseller of the RRP for Channels Plus no later than five (5) days following the end of a fortnight during the applicable Order Term; and
(ii)the RRP for Channels Plus will be based on the RRP List for Channels Plus and the volume of usage of the service applicable to the immediately preceding fortnight;
(b)Demand Plus, the RRP for Demand Plus will be based on the RRP List for Demand Plus and SiteMinder will notify Reseller of the RRP for Demand Plus no later than five (5) days following the end of the first fortnight during the applicable Order Term, and thereafter where there are any changes to the RRP; and
(c) Dynamic Revenue Plus:
(i)SiteMinder will notify Reseller of the RRP for Dynamic Revenue Plus no later than five (5) days following the beginning of a fortnight during the applicable Order Term; and
(ii)the RRP for Dynamic Revenue Plus will be based on the RRP List for Dynamic Revenue Plus and the volume of usage of that service applicable to that fortnight.
8.3.(Worked Examples) Annexure C contains worked examples illustrating how profit share is paid under clause 8.1. Examples are illustrative only, use assumed figures, and do not form part of the parties’ commercial terms. If there is any inconsistency between a worked example and this Agreement, this Agreement shall prevail.
8.4.(Calculation of Profit Share) SiteMinder will calculate all profit share amounts under clause 8.1. Reseller must promptly provide all information reasonably required for SiteMinder to calculate those amounts. To ensure compliance with Competition Laws, any Competitively Sensitive Information reasonably required by SiteMinder under this clause 8.4 may only be exchanged between the parties’ respective Clean Teams.
8.5.(Audit) SiteMinder has the right to conduct an annual audit of Reseller for the calculation of profit share under clause 8.1 for the purposes of calculating such amounts (each an Audited Revenue Amount) exercisable on ten (10) Business Days’ written notice. To the extent SiteMinder exercises its right to conduct an audit, SiteMinder will bear the cost of the audit. Where audit findings disclose discrepancies exceeding five percent (5%) of any amount due or paid under clause 8.1 in any twelve-month period (Expected Revenue Share Discrepancy), SiteMinder may dispute each relevant Audited Revenue Amount causing the Expected Revenue Share Discrepancy under clause 17.3.
9. End User Pricing
Reseller independently sets the price of the Services to End Users and will collect all fees from End Users. Any RRP is a recommendation only, and SiteMinder will not require, induce or pressure Reseller to resell the Services at or above any price. Reseller must pay SiteMinder all Fees and profit share, regardless of non-payment by End Users. If Reseller issues End User a refund of any amount, SiteMinder has no obligation to refund Reseller for any Fees or profit share paid to SiteMinder relating to that refunded amount.
10. Invoicing and Payment
10.1.(Invoicing) Unless otherwise set out in this Agreement (or any applicable Order), SiteMinder will issue invoices monthly for amounts owed by Reseller under this Agreement.
10.2.(Payment Terms) Unless otherwise agreed in this Agreement (or any applicable Order), Reseller must pay all invoices:
(a)within thirty (30) days of the invoice date; or
(b)for any invoice issued in relation to profit share payable under clause 8.1, within fourteen (14) days of the invoice date,
in cleared funds without set-off or deduction of any kind including for taxes, levies, imposts, duties, charges (including bank charges) or fees.
10.3.(Currency Conversion) Where the fees or profit share involve a commission on transactions or revenue received by Reseller in a currency other than the invoice currency, SiteMinder will use publicly available foreign exchange spot rates to convert any amounts payable to the Currency.
10.4.(Late Payment) If Reseller does not pay an invoice by the due date, SiteMinder may charge interest on the outstanding amount at a rate of 9% per annum (or, if lower, the maximum rate permitted by applicable law) from the due date until payment is received.
10.5.(Disputed Invoices) If Reseller disputes any invoice, it must notify SiteMinder within ten (10) Business Days of receipt of the invoice and pay the undisputed amount on or before the due date. If Reseller does not notify within this time, Reseller will be deemed to have accepted the invoice as accurate. The parties must endeavour to resolve the disputed amount between themselves within ten (10) Business Days of the notification being given by Reseller. If the parties do not resolve the dispute within this time, the dispute resolution procedure set out in clause 17.3 applies.
10.6.(Set Off) SiteMinder may, on notice to Reseller, set off any sum owing by SiteMinder against any amounts and payments due from Reseller to SiteMinder. SiteMinder may select in its sole discretion the manner and form of set-off including selecting the credit notes applicable to the set-off.
11. Privacy and Data Protection
11.1.(Compliance) Each party must comply with applicable Data Protection Laws in connection with this Agreement.
11.2.(DPA) To the extent that either party processes Personal Data on behalf of the other party in circumstances in which applicable Data Protection Laws require a data processing agreement, the DPA is incorporated into and forms part of this Agreement and governs that processing. Each party agrees to and enters into the DPA by entering into this Agreement. Nothing in the DPA determines the parties’ roles for any processing for which they act as independent Controllers or otherwise do not process Personal Data on behalf of one another. If there is any inconsistency between this Agreement and the DPA in relation to the processing of Personal Data, the DPA prevails.
12. Confidentiality
12.1.(Confidentiality Obligations) Each party (the Receiving Party) must keep the other party’s (the Disclosing Party’s) Confidential Information confidential and must not use it for any purpose other than performing its obligations or exercising its rights under this Agreement. A party may disclose Confidential Information to its Affiliates, personnel, contractors and professional advisers who need to know it for those purposes and are subject to appropriate confidentiality obligations.
12.2.(No Application) The obligations in clause 12.1 do not apply to information that: (a) is or becomes publicly available through no fault of the Receiving Party; (b) was lawfully in the Receiving Party’s possession before disclosure; (c) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (d) is required to be disclosed by law, regulation, court order or listing rule, provided the Receiving Party gives the Disclosing Party prompt notice (where legally permitted) and cooperates with any efforts to limit the scope of disclosure.
12.3.(Public Statements) Except as expressly permitted under this Agreement, neither party may issue a press release or public statement about this Agreement or refer to the other party in any public communication (including marketing, social media or press releases) without the other party’s prior written consent.
13. Intellectual Property
13.1.(SiteMinder IPRs) SiteMinder and its Affiliates own all IPR in and to the Services, any update made to the Services, the Services Schedules, SiteMinder’s Confidential Information and associated documentation. Nothing in this Agreement transfers any ownership of IPR to Reseller.
13.2.(Licensed Trademarks) SiteMinder grants Reseller a limited, non-exclusive, non-transferable, non-sublicensable and revocable licence to use the Licensed Trademarks solely to advertise, promote, sell or market the Services during the term of this Agreement, under the Branding Guidelines.
13.3.(Restrictions) Reseller must not, and must not permit any person to: (a) modify, adapt, or create derivative works of the Licensed Trademarks; (b) use the Licensed Trademarks to imply that SiteMinder endorses anything other than the Services, or imply that Reseller is authorised to resell any SiteMinder products or services other than the Services; (c) alter or remove any Licensed Trademarks applied to a Service; (d) register in any jurisdiction any name, logo, mark or internet domain name identical to or confusingly similar to the Licensed Trademarks, Services or any SiteMinder domain; (e) challenge or assist others to challenge SiteMinder’s ownership of any IPR; or (f) use any SiteMinder branding or the Licensed Trademarks in a way that is misleading or that could damage SiteMinder’s reputation. Any misuse of SiteMinder’s IPR or Licensed Trademarks is a material breach of this Agreement.
13.4.(Third-party IPR claims) SiteMinder will defend Reseller against any third-party claim alleging that the Services, as supplied by SiteMinder, infringe that third party’s validly subsisting IPR and will indemnify Reseller against damages and reasonable legal costs finally awarded or agreed by SiteMinder in settlement, provided Reseller: (a) promptly notifies SiteMinder; (b) gives SiteMinder sole control of the defence and settlement; and (c) provides reasonable assistance. SiteMinder may procure continued use of, modify or replace the affected Service or, if none of those options is commercially reasonable, terminate that Service and refund prepaid Fees for the unused period. SiteMinder has no liability to the extent a claim arises from an unauthorised modification, combination or use, use outside this Agreement, use of Reseller or End User materials or instructions, any product, service or functionality supplied by a Partner, or failure to implement a modification or replacement provided by SiteMinder. This clause states Reseller’s sole and exclusive remedy for an IPR claim.
13.5.(Indemnity for Third-party Claims) Reseller will defend and indemnify SiteMinder and its Affiliates against third-party claims arising from: (a) Material Breach by Reseller or its Affiliates; (b) Reseller systems, materials, branding, content, modifications or integrations; (c) any representation, commitment or warranty given by Reseller beyond this Agreement or the SiteMinder End User Terms and Conditions; or (d) Reseller’s unauthorised use of SiteMinder’s IPR or Licensed Trademarks.
14. Warranties
14.1.(General Warranties) Each party represents and warrants that it has full power and authority to enter into and perform this Agreement.
14.2.(End User Warranties) Reseller must not give any warranty concerning the Services that is broader than the warranties provided in the SiteMinder End User Terms and Conditions (End User Warranties). To the extent SiteMinder is responsible for a breach of an End User Warranty consistent with those terms, SiteMinder will provide Reseller with the remedy available under those terms for Reseller to pass on to the End User. Reseller indemnifies SiteMinder and its Affiliates against losses arising from any claim, cause of action, suit, demand or proceeding however arising, by an End User, except to the extent that the claim, cause of action, suit, demand or proceeding results directly from SiteMinder’s breach of this Agreement.
14.3.(Exclusions and Disclaimers) To the maximum extent permitted by law, all warranties and terms not expressly set out in this Agreement are excluded, including warranties of satisfactory quality, merchantability, fitness for purpose, title and non-infringement. SiteMinder does not warrant that the Services will be uninterrupted, error-free, secure or free from vulnerabilities, or meet any End User requirement or legal, tax or regulatory obligation (including where a Service is designed to assist with compliance), or that any data generated by or exchanged with a Partner will be accurate or complete. Without limiting the above, insights, benchmarks and recommendations from the Services are recommendations only, and do not guarantee any revenue, occupancy, pricing, or other outcome.
14.4.(Non-excludable rights) Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any law that cannot lawfully be excluded, restricted or modified (Non-excludable Right), and any statement in this Agreement that SiteMinder has no liability is subject to this clause.
15. Limitation of Liability
15.1.(Liability) Subject to clauses 15.3 and 15.4, each party’s total aggregate liability arising in each Calculation Year under or in connection with this Agreement, whether in contract, tort, negligence, breach of statutory duty or otherwise, will not exceed the Fees paid or payable under the relevant Order during that Calculation Year. SiteMinder’s aggregate liability for claims by or relating to a particular End User will not exceed the Fees attributable to that End User during the relevant Calculation Year.
15.2.For the purposes of clause 15.1:
(a)Calculation Year means each period of twelve (12) successive months commencing on the applicable Order Commencement Date, provided the final Calculation Year shall end on the date of expiry or termination of this Agreement (even if such final Calculation Year is less than twelve (12) months in duration); and
(b)any liability arising for a particular Calculation Year which is not the subject of a claim in that Calculation Year shall not carry forward to any subsequent Calculation Year, and the cap on liability shall be calculated separately for each Calculation Year by reference to the Fees paid or payable in that Calculation Year alone.
15.3.(No Exclusion) The liability cap in clause 15.1 does not limit the liability: (a) of Reseller to pay the Fees (including the Minimum Fee) or any profit share, interest on overdue amounts, taxes or any other amount expressly payable by Reseller; (b) for death or personal injury caused by negligence, or for the fraud, fraudulent misrepresentation or wilful misconduct of that party or its personnel; (c) of Reseller under clauses 3.1 (Reseller Obligations), 7 (Fees), 8 (Profit Sharing), 10 (Invoicing and Payment), 11 (Privacy and Data Protection), 12 (Confidentiality), 13 (Intellectual Property) and 14 (Warranties); or (d) liability that cannot lawfully be limited or excluded.
15.4.(Exclusion of Consequential Loss) Neither party is liable for any indirect or consequential loss or any loss of profit, revenue, opportunity, goodwill, reputation, anticipated savings or data, or business interruption, whether direct or indirect. This clause is not intended to exclude or limit liability to the extent it cannot lawfully be excluded or limited.
16. Suspension and Termination
16.1.(Suspension for Breach) SiteMinder may suspend Reseller’s appointment or Reseller’s or any End User’s access to the Services if Reseller breaches this Agreement (or SiteMinder has reasonable grounds to suspect such breach), or where suspension is reasonably required to comply with law or protect any person, system, data or equipment. SiteMinder will give prior notice where reasonably practicable and restore access after the relevant issue has been remedied. Where the suspension was implemented due to an act or omission of Reseller or its End User, Reseller remains liable for all Fees owing during any period that the Services are suspended.
16.2.(Termination) A party may terminate this Agreement (or any applicable Order) immediately, by written notice, if the other party: (a) commits a Material Breach that is not remedied within ten (10) Business Days after notice, or that is incapable of remedy; or (b) becomes insolvent, enters administration or liquidation, or is subject to an analogous event. A breach by Reseller of clauses 3.1 (Reseller Obligations), 7 (Fees), 8 (Profit Sharing), 10 (Invoicing and Payment), 11 (Privacy and Data Protection), 12 (Confidentiality), 13 (Intellectual Property) or 14 (Warranties) is a material breach (Material Breach). Reseller must notify SiteMinder before any proposed Change of Control, and SiteMinder may terminate this Agreement immediately on notice before or after that Change of Control takes effect.
16.3.(Effect of Termination or Expiry) On termination or expiry of this Agreement or any Order for any reason:
(a)Reseller must stop marketing and selling the affected Services and all relevant access rights and trademark licences end;
(b)all amounts accrued or owed by Reseller become immediately due, including fees for services rendered or transactions processed up to the date of termination, and for Demand Plus, the amounts payable to SiteMinder under clause 8.1 for all bookings made before termination, notwithstanding that those bookings may later be subject to a cancellation or no-show event;
(c)each party must, on request, return or destroy the other party’s Confidential Information and confirm compliance, except for information required by law or retained in routine backups, which remains subject to this Agreement; and
(d)SiteMinder may offer the Services directly to affected End Users, and Reseller must reasonably cooperate with and not obstruct any transition to SiteMinder.
16.4.(End User Account Termination) Reseller must give SiteMinder at least thirty (30) days’ prior notice to terminate an End User account. Any data that an End User wants to retain must be downloaded prior to termination.
16.5.(Survival) Clauses concerning accrued payment obligations, confidentiality, data protection, IPR, warranties, indemnities, limitation of liability, dispute resolution and the effects of termination survive expiry or termination.
17. General
17.1.(Contracting Entity and Governing Law) The SiteMinder contracting entity, law that will apply to a dispute arising out of or relating to this Agreement, and jurisdiction for dispute resolution depend on where Reseller is domiciled, in all cases without reference to conflict of law rules of any jurisdiction.
| If Reseller is domiciled in: | The SiteMinder contracting entity is: | Governing law is that of: | The venue for dispute resolution is: |
|---|---|---|---|
| Any U.S. state; Canada; Mexico; or a country in Central America, South America, or the Caribbean | SiteMinder Hospitality Corporation Inc. 156 W 56th Street, 3rd Floor, New York, NY 10019, USA | Texas, United States of America | Dallas, Texas, United States of America |
| A country in the U.K., Europe, Africa, or the Middle East | SiteMinder Distribution Limited Suite 1, 7th Floor, 50 Broadway, London, United Kingdom SW1H 0DB | England | London, England |
| Australia or New Zealand, Asia, the Pacific, or anywhere not set out above | SiteMinder Limited Level 7, Suite 7.01, 155 Clarence St, Sydney NSW 2000, Australia | New South Wales | Sydney, New South Wales |
17.2.(UN Convention on Contracts) The provisions of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement in any manner.
17.3.Dispute Resolution
(a)(Good Faith Negotiations) The parties must first attempt to resolve a dispute through good-faith negotiations between authorised senior representatives. If it is not resolved within twenty (20) Business Days, it must be finally resolved by individual arbitration in English under the International Arbitration Rules of the ICDR, seated in the venue specified in clause 17.1 (Contracting Entity and Governing Law). The arbitrator may award compensatory damages only. This Agreement prevails over the ICDR Rules to the extent of any inconsistency.
(b)(Confidentiality) Except as required by law or as permitted by clause 12 (Confidentiality), each party, and its representatives, will not disclose the existence, content, or results of any arbitration without the other party’s prior written consent.
17.4.(Injunctive Relief) Nothing in clause 17.3 prevents a party from seeking provisional remedies, including preliminary injunctions from any court of competent jurisdiction to protect its rights, pending arbitration.
17.5.(Notices) Notices to Reseller will be delivered via email or to the address for Reseller set out in the applicable Order. Notices to SiteMinder will be delivered via email to legal@siteminder.com with attention to the Chief Legal Officer. All notices must be in English and in writing. A notice is deemed to be received on the date sent, unless the recipient can demonstrate that the email failed to be delivered.
17.6.(Assignment) SiteMinder may assign this Agreement to any Affiliate or in connection with a merger, acquisition, or sale of substantially all of its assets. Reseller must not assign this Agreement without SiteMinder’s prior written consent.
17.7.(Force Majeure) Neither party will be liable for any failure or delay in its performance under this Agreement to the extent due to any cause beyond its reasonable control, except for payment obligations. The affected party must use reasonable efforts to mitigate the event and resume performance.
17.8.(Order of Precedence) If there is any inconsistency, the order of precedence for resolving the inconsistency will be: (a) the DPA on Personal Data matters; (b) any Special Conditions (meaning the special conditions set out in the Order); (c) the Order; (d) the Reseller Terms; (e) the Services Schedule; (f) the Support Schedule; and (g) the Reseller Policies.
17.9.(Updated Terms) SiteMinder may update these Reseller Terms by posting an updated version on the Website or the Portal. SiteMinder will give Reseller at least thirty (30) days’ prior written notice of any update that is materially adverse to Reseller (except where the update is required by law, in which case SiteMinder will give as much notice as is reasonably practicable). If Reseller does not accept a materially adverse update, it may terminate the affected Order by written notice before the update takes effect, without liability for any Minimum Fee or other early termination amount for the period after termination. Otherwise, continued use of the Services after an update takes effect constitutes acceptance. All other changes to this Agreement can only be amended or varied in writing between the parties.
17.10.(Entire Agreement) This Agreement (including the Order) constitutes the entire agreement between the parties and supersedes all prior agreements relating to its subject matter. The parties may have an existing relationship under connectivity and integration agreements (Existing Connectivity Agreements). Nothing in this Agreement amends, suspends, terminates, or otherwise affects the operation of the Existing Connectivity Agreements.
17.11.(Relationship between the parties) The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship.
17.12.(Severance) If any clause or part of any clause of this Agreement is held to be invalid or unenforceable, it is deemed deleted. The rest of this Agreement remains in full force and effect.
17.13.(Waiver) A delay or failure by a party to assert any of its rights under this Agreement, including the right to terminate for breach, is not a waiver by that party of its right. Any waiver must be in writing, signed by the waiving party and is only effective to the extent set out in that waiver.
17.14.(Non-reliance) Reseller confirms that it has not relied on any warranty or representation (whether oral or written) in relation to the subject matter of this Agreement other than as expressly set out in this Agreement, and it has relied on its own enquiries in relation to the subject matter.
17.15.(Miscellaneous) (a) The English language version of this Agreement governs its interpretation. (b) Each party must do all things necessary to give full effect to this Agreement. (c) There are no third-party beneficiaries to this Agreement. SiteMinder has no obligations or liability to any third parties with which Reseller does business. (d) Each attorney and any other individual executing this Agreement on behalf of a party warrants that they have full and proper authority to do so. (e) Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that SiteMinder may have against Reseller or any other person at any time.
18. Definitions and Interpretation
18.1.(Definitions) In these Reseller Terms, the following words have the meanings set out below:
Affiliate means, in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party.
Agreement means each applicable Order, these Reseller Terms, the applicable Services Schedules, the Support Schedule, the DPA, the Reseller Policies and any document expressly incorporated by them.
AI Systems means any artificial intelligence, machine learning model, decision-support tool, automated decision-making technology, rule-based automations, BI dashboards and data-driven algorithms (whether developed internally or sourced externally).
Audited Revenue Amount has the meaning given to it in clause 8.5 (Audit).
Authorisation means:
(a)any licence, consent, approval, permit, registration, accreditation, certification or other authorisation given or issued by any Government Agency or any other person; and
(b)any other requirement notified by SiteMinder that Reseller must satisfy to sell, configure, design, install and support the Services, including requirements relating to product knowledge, customer support, sales, implementation, installation, maintenance and End User training.
Billing Start Date means, for a Service, the date specified in the Order on which SiteMinder commences providing the Services under that Order, or if none is specified, the Order Commencement Date.
Branding Guidelines means the branding guidelines set out in the Reseller Policies.
Business Day means a day that is not a Saturday, Sunday or public holiday in the jurisdiction of this Agreement determined under clause 17.1 (Contracting Entity and Governing Law).
Change of Control occurs for Reseller if an entity which, as at the date of this Agreement, does not Control Reseller but subsequently has the ability to do so, except the following events will not be considered a Change of Control:
(a)the listing of the securities of Reseller or a holding company of Reseller on a recognised stock exchange; or
(b)a transfer of Reseller’s securities, or the securities of Reseller’s holding company listed on a recognised stock exchange.
Channels Plus means SiteMinder’s wholesale distribution product known as Channels Plus.
Channels Plus Gross Margin means, for any period, the:
(a)aggregate Channels Plus Revenue derived from End Users; less
(b)any Transaction Services Costs exclusively attributable to the delivery of the Channels Plus to the relevant End Users during that period; less
(c)OTA Commission amounts for that period.
Channels Plus Profit Share means the percentage share, set out in the applicable Order, of the Channels Plus Gross Margin.
Channels Plus Revenue means, for a period, the aggregate revenue derived during that period calculated based on the RRP from the provision of Channels Plus to any End User.
Clean Team means personnel of a party who require access to Competitively Sensitive Information to administer this Agreement and who are not involved in competing sales, pricing or strategic decision-making.
Competition Laws means the Competition and Consumer Act 2010 (Cth), Competition Act 1998 (UK), Digital Markets, Competition and Consumers Act 2024 (UK), Enterprise Act 2002 (UK), Sherman Act 1890 (US), Clayton Act 1914 (US), Federal Trade Commission Act 1914 (US), or any other equivalent or applicable competition and consumer laws in any jurisdiction.
Competitively Sensitive Information means Confidential Information which relates to the products and/or services that are supplied or acquired by each party potentially in competition with each other, including: (a) future or confidential pricing information (this excludes the price of goods or services supplied between SiteMinder and Reseller); (b) business strategies, strategic plans, budgets, details of customers and the terms of their supply arrangements; (c) financial information (including current and forecast information) relating to margin and discounts for products and services; and (d) information relating to new products and innovations.
Confidential Information means information that is identified as confidential or that a reasonable person would understand to be confidential given its nature or the circumstances of disclosure, including this Agreement, pricing, technical, security, financial, product, customer and business information.
Control in relation to an entity means: (a) the capacity to determine the outcome of decisions about the entity’s financial and operating policies; (b) the capacity to control the composition of the board of directors of the entity or a holding company of the entity; (c) being in a position to cast or control the casting of more than 50% of the maximum number of votes that might be cast at a general meeting of the entity or a holding company of the entity; or (d) beneficially holding more than 50% of the issued share capital of the entity or a holding company of the entity, and Controlled has the corresponding meaning.
Controller means an entity which, alone or jointly with others, determines the purposes and means of the processing of Personal Data.
Currency means the currency set out in the relevant Order.
Data Protection Laws means all applicable laws and regulatory requirements relating to privacy, data protection and the processing or security of Personal Data, including, where applicable, the GDPR, the UK Data Protection Laws, Privacy Act 1988 (Cth) and US State Privacy Laws, in each case as amended or replaced.
Data Subject means an identified or identifiable natural person to whom Personal Data relates.
Demand Plus means SiteMinder’s managed metasearch service, based on a cost per acquisition model, known as Demand Plus.
Demand Plus Gross Margin means, for any period, the aggregate Demand Plus Revenue derived from End Users who have subscribed to Demand Plus, less any Transaction Services Costs exclusively attributable to the delivery of Demand Plus to the relevant End Users during the same period.
Demand Plus Profit Share means the percentage share, set out in the applicable Order, of the Demand Plus Gross Margin.
Demand Plus Revenue means, for a period, the aggregate revenue derived during that period calculated based on the RRP from the provision of Demand Plus to any End User.
Disclosing Party has the meaning given to it in clause 12.1 (Confidentiality Obligations).
DPA means the Data Processing Addendum attached as Annexure A.
Dynamic Revenue Plus means SiteMinder’s revenue management service, known as Dynamic Revenue Plus.
Dynamic Revenue Plus Profit Share means the percentage share, set out in the applicable Order, of the Dynamic Revenue Plus Revenue.
Dynamic Revenue Plus Revenue means, for each fortnight during the applicable Order Term, the aggregate revenue calculated using the applicable RRP from the provision of Dynamic Revenue Plus to End Users during the relevant fortnight, less any Transaction Services Costs.
End User means the third party that purchases the Services from Reseller for its internal use.
End User Property means the building, dwelling or location set out in the Order, from which, End User provides accommodation and related goods and services to Guests.
End User Warranties has the meaning given to it in clause 14.2.
EU SCCs means the standard contractual clauses adopted by the European Commission under Implementing Decision (EU) 2021/914.
Existing Connectivity Agreements has the meaning given to it in clause 17.10 (Entire Agreement).
Expected Revenue Share Discrepancy has the meaning given to it in clause 8.5 (Audit).
Fees means the fees set out in Schedule 1 to the applicable Order and for the avoidance of doubt do not include any profit share entitlement.
GDPR means the General Data Protection Regulation (EU) 2016/679.
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 or potential guest at an End User Property.
Instructing Party has the meaning given in clause 1.2(a) of the DPA.
IPR means all intellectual property rights of any kind, including patents, trademarks, copyrights, trade secrets, know-how, and database rights.
Licensed Trademarks means the SiteMinder trademarks, logos, and branding materials that SiteMinder authorises Reseller to use under these Reseller Terms.
Material Breach has the meaning given to it in clause 16.2.
Minimum Fee means the minimum fee for the relevant measurement period as specified in the Order, which may be calculated by reference to the Minimum Property Count under clause 7.4.
Minimum Property Count means the minimum number of End User Properties for the relevant period, as specified in the Order.
Nominated Representative means the individual nominated by Reseller, set out in the Order.
Operating Procedures means the applicable operating procedures, troubleshooting protocols, technical guidelines and integration requirements applicable to the Services.
Order means an order for the supply, resale or distribution of Services entered between the parties.
Order Commencement Date means the date on which each relevant Order is executed by both parties.
Order Implementation Period means the period (if any) commencing on the applicable Order Commencement Date and ending the day immediately preceding the Billing Start Date.
Order Initial Term means the period set out in the Order, commencing on the Billing Start Date.
Order Renewal Term means twelve (12) months.
Order Term means the Order Initial Term and each Order Renewal Term.
OTA means any online travel agency that is a Partner.
OTA Commission means the commission payable to an OTA in connection with Channels Plus.
Partner means any third party, including a metasearch provider, online travel agency, payment processor or other technology or distribution partner that SiteMinder engages, integrates with, or relies on to provide, support, or facilitate the Services.
PCI DSS means the Payment Card Industry Data Security Standard issued by the Payment Card Industry Security Standards Council as updated from time to time and available at: https://www.pcisecuritystandards.org/document_library?document=pci_dss
Personal Data means any information relating to an identified or identifiable natural person that is protected under applicable Data Protection Laws.
Personal Data Breach means a personal data breach, or equivalent concept, under applicable Data Protection Laws.
Portal means the SiteMinder partner portal available at https://partnerhub.siteminder.com.
Processing Party has the meaning given in clause 1.2(b) of the DPA.
Processor means an entity which processes Personal Data on behalf of a Controller.
Process, Processing and Processed have the meanings given to them under applicable Data Protection Laws.
Receiving Party has the meaning given to it in clause 12.1 (Confidentiality Obligations).
Relevant Personal Data means Personal Data Processed by a Processing Party on behalf of an Instructing Party under the Agreement, including the categories of Personal Data described in Appendix 1 to the DPA.
Reseller means the party identified as reseller in the Order.
Reseller End User Agreement means the agreement between Reseller and an End User governing, among other matters, the End User’s access to and use of the Services.
Reseller Policies means the SiteMinder policies and programs made available on the Portal, as amended from time to time by SiteMinder.
Restricted Transfer means a transfer of Relevant Personal Data which requires an appropriate safeguard or transfer mechanism under applicable Data Protection Laws.
RRP means, for a Transaction Service, the amount notified by SiteMinder to Reseller under clause 8.2 (Notice of RRP).
RRP List means, for a Transaction Service, SiteMinder’s recommended retail price list applicable to that Transaction Service.
Services means any SiteMinder service identified in the Order, together with all associated updates offered by SiteMinder under an Order and having the functionality set out in the Services Schedules, and may also include installation, integration, maintenance, assistance or backup services, help desk systems and support, data migration and associated services (which may be referred to on the Website as “Product”).
Services Schedule means each schedule describing the specifications and functionality of a Service, as updated from time to time and made available on the Website (which may be referred to on the Website as “Product Schedules“).
SiteMinder has the meaning given to it in clause 17.1 (Contracting Entity and Governing Law).
SiteMinder End User Terms and Conditions means the Services Terms and Conditions available on the Website (currently available at https://www.siteminder.com/legal/terms-and-conditions/). SiteMinder may post a successor version of these terms and conditions on the Website, which will automatically replace and supersede the previously applicable terms and conditions.
Subprocessor means a third party appointed by a Processing Party to process Relevant Personal Data on behalf of the Instructing Party.
Supervisory Authority means the competent independent public authority responsible for enforcing applicable Data Protection Laws.
Support Schedule means Annexure B to this Agreement.
Support Time Zone means the time zone specified in the applicable Order.
Territory means the geographic area specified in the Order, subject to exclusions to ensure that SiteMinder and its Affiliates comply with all sanctions laws applicable to its global operations.
Transaction Service means any of Channels Plus, Demand Plus or Dynamic Revenue Plus.
Transaction Services Costs means the direct costs reasonably incurred by SiteMinder in the delivery of Channels Plus or Demand Plus to End Users including third-party licensing fees, processing fees and transaction-based charges.
UK Addendum means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the UK Information Commissioner under section 119A of the Data Protection Act 2018.
UK Data Protection Laws means the UK GDPR, Data Protection Act 2018, Privacy and Electronic Communications (EC Directive) Regulations 2003 and other applicable United Kingdom laws relating to the processing of Personal Data, in each case as amended or replaced.
UK GDPR means the GDPR as incorporated into United Kingdom law pursuant to section 3 of the European Union (Withdrawal) Act 2018.
US State Privacy Laws means applicable United States state laws regulating privacy, data protection and the Processing of Personal Data, including, where applicable, the California Consumer Privacy Act of 2018 and its implementing regulations, and the Texas Data Privacy and Security Act, in each case as amended or replaced.
Website means www.siteminder.com.
18.2.(Interpretation) In this Agreement, unless the context otherwise requires:
(a)headings are for convenience only and do not affect interpretation;
(b)an example, including any worked example in Annexure C, is illustrative only and does not limit the meaning of the provision to which it relates;
(c)an obligation, liability or right held by two (2) or more persons binds or benefits them jointly and severally;
(d)“person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust, in each case whether or not a separate legal entity;
(e)“party” includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation, persons who execute a deed of accession to this Agreement, and, for a trustee, includes any substituted or additional trustee;
(f)reference to a document is to that document as varied, novated, ratified or replaced from time to time;
(g)reference to a statute (or any part of it) includes its legislation, regulations and other instruments under it, and any consolidations, amendments, re-enactments and replacements;
(h)singular includes the plural (and vice versa), and gender includes every other gender;
(i)reference to a clause, schedule, attachment or annexure is a reference to a clause, schedule, exhibit, attachment or annexure to or of this Agreement, and includes all schedules, exhibits, attachments and annexures to it;
(j)if a word or phrase is defined, any other grammatical forms carry the corresponding meaning;
(k)a reference to conduct includes any omission, statement or undertaking, whether written or not;
(l)if anything is to be done in this Agreement on or by a day that is not a Business Day, it must be done on or by the next Business Day;
(m)a reference to a time is that time in the jurisdiction set out in clause 17.1 (Contracting Entity and Governing Law); and
(n)“includes” is not a word of limitation.
Annexure A
Data Processing Addendum
This Data Processing Addendum (DPA) forms part of the Agreement and applies only to the extent that one party processes Personal Data on behalf of the other party in circumstances giving rise to a Controller-Processor or Processor-Subprocessor relationship under applicable Data Protection Laws. Nothing in this DPA creates or determines such a relationship where one does not otherwise exist. This DPA takes effect when the Agreement takes effect and does not require separate execution.
1. Application and roles
1.1.(Application) This DPA applies only to each processing activity in which one party processes Personal Data on behalf of the other party in circumstances in which applicable Data Protection Laws require a data processing agreement. A disclosure, transfer or transmission of Personal Data between the parties, including through an API or integration, does not by itself cause either party to act as Processor or Subprocessor for the other.
1.2.(Roles) For each relevant processing activity:
(a)Instructing Party means the party that determines, or is authorised by the relevant Controller to give, instructions concerning the processing of Personal Data; and
(b)Processing Party means the party that processes that Personal Data on behalf of the Instructing Party, whether as a Processor or Subprocessor.
The parties’ roles are determined by the facts and applicable Data Protection Laws, not by this DPA, and may differ between processing activities.
Where the Instructing Party is itself acting as a Processor, it confirms that it is authorised by the relevant Controller to appoint the Processing Party as a Subprocessor and to give the instructions contemplated by this DPA.
1.3.(Independent Controller activities) This DPA does not apply to processing for which the parties act as independent Controllers, parallel Processors for the same Controller, or otherwise do not process Personal Data on behalf of one another. Any such processing is governed by the Agreement, each party’s applicable privacy notice and applicable Data Protection Laws.
1.4.(Definitions) Capitalised terms not defined in this DPA have the meaning given in the Agreement.
2. Processing of Personal Data
2.1.(Instructing Party obligations) The Instructing Party must:
(a)comply with applicable Data Protection Laws in relation to the Relevant Personal Data and its instructions to the Processing Party;
(b)ensure that it has all necessary rights, notices, consents, lawful bases and authorisations to provide Relevant Personal Data to the Processing Party and instruct the processing contemplated by this DPA; and
(c)where it acts as a Processor, ensure that its instructions to the Processing Party are consistent with the instructions of the relevant Controller.
2.2.(Documented instructions) The Processing Party must process Relevant Personal Data only:
(a)on the documented instructions of the Instructing Party, including the Agreement, this DPA and any other documented instructions given consistently with them; or
(b)where required by applicable law.
Where clause 2.2(b) applies, the Processing Party must, unless prohibited by applicable law, inform the Instructing Party of that legal requirement before undertaking the processing.
The Processing Party must promptly inform the Instructing Party if, in its opinion, an instruction infringes applicable Data Protection Laws.
2.3.(Processing details) The subject matter, duration, nature and purpose of the processing, the types of Relevant Personal Data and the categories of Data Subjects are set out in Appendix 1 and, where applicable, supplemented by the relevant Order or Services Schedule.
3. Confidentiality, security and assistance
3.1.(Confidentiality) The Processing Party must ensure that each person authorised to process Relevant Personal Data:
(a)has access only to the Relevant Personal Data necessary for that person’s duties; and
(b)is subject to an appropriate contractual or statutory duty of confidentiality.
3.2.(Security) Taking into account the nature, scope, context and purposes of the processing and the risks to Data Subjects, the Processing Party must implement and maintain appropriate technical and organisational measures to protect Relevant Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access. Those measures must include, as appropriate to the relevant processing, the measures described in Appendix 2.
3.3.(Data Subject requests) Taking into account the nature of the processing, the Processing Party must provide reasonable assistance to the Instructing Party, including by appropriate technical and organisational measures where practicable, to enable the Instructing Party or relevant Controller to respond to requests by Data Subjects exercising rights under applicable Data Protection Laws.
If the Processing Party receives a request directly from a Data Subject relating to Relevant Personal Data, it must promptly notify the Instructing Party and must not respond to the request except:
(a)on the documented instructions of the Instructing Party; or
(b)as required by applicable law.
3.4.(Regulatory assistance) Taking into account the nature of the processing and information available to it, the Processing Party must provide reasonable assistance to the Instructing Party in complying with applicable obligations concerning:
(a)security of processing;
(b)Personal Data Breaches;
(c)data protection impact assessments; and
(d)consultation with a Supervisory Authority.
4. Subprocessors
4.1.(General authorisation) The Instructing Party gives the Processing Party general authorisation to appoint Subprocessors in connection with the Services. The Processing Party must maintain a current list of its Subprocessors and make that list available to the Instructing Party, whether through an online list or otherwise on request.
4.2.(Changes) The Processing Party must give the Instructing Party at least ten (10) Business Days’ prior notice of an intended addition or replacement of a Subprocessor. The Instructing Party may object to the proposed Subprocessor on reasonable grounds relating to the protection of Relevant Personal Data by notifying the Processing Party within that notice period, and the parties must work in good faith to address any such objection.
Nothing in this clause requires a Processing Party to implement a change that would materially affect the security, integrity or operation of its services. If an objection cannot reasonably be resolved, the parties will discuss appropriate alternatives and any rights concerning the affected Services will be determined under the Agreement.
4.3.(Subprocessor obligations) Before allowing a Subprocessor to Process Relevant Personal Data, the Processing Party must enter into a written agreement with that Subprocessor imposing the same data protection obligations as apply to the Processing Party under this DPA, to the extent applicable to the Processing undertaken by that Subprocessor. The Processing Party remains fully responsible to the Instructing Party for the performance of those obligations by its Subprocessors.
5. Personal Data Breaches
5.1.(Notification) The Processing Party must notify the Instructing Party without undue delay after becoming aware of a Personal Data Breach affecting Relevant Personal Data.
5.2.(Information and assistance) The Processing Party must provide the Instructing Party with information reasonably available to it concerning:
(a)the nature of the Personal Data Breach;
(b)the categories of Relevant Personal Data and Data Subjects affected;
(c)the likely consequences of the Personal Data Breach; and
(d)the measures taken or proposed to address and mitigate the Personal Data Breach,
and must provide reasonable assistance required by the Instructing Party to comply with applicable Data Protection Laws. The Processing Party may provide information in phases as it becomes available. Notification under this clause does not constitute an acknowledgement of fault or liability.
6. Return, deletion and audit
6.1.(Return and deletion) On expiry or termination of the relevant processing under the Agreement, the Processing Party must, at the Instructing Party’s choice, delete or return Relevant Personal Data and delete existing copies, unless retention is required by applicable law. Relevant Personal Data contained in routine backups may be retained until deleted in the ordinary backup cycle, provided that it is put beyond ordinary use and remains protected under this DPA.
6.2.(Demonstrating compliance) The Processing Party must make available to the Instructing Party information reasonably necessary to demonstrate compliance with the obligations applicable to it under this DPA and applicable Data Protection Laws. Where reasonably sufficient, the Processing Party may satisfy this obligation by providing relevant independent audit reports, certifications, security documentation or responses to reasonable questionnaires.
6.3.(Audits) If the information provided under clause 6.2 is not reasonably sufficient, the Processing Party must allow for and reasonably contribute to an audit or inspection by the Instructing Party or an independent auditor appointed by it. Unless required by a Supervisory Authority or reasonably necessary following a Personal Data Breach or material non-compliance:
(a)no more than one audit may be conducted in any twelve-month period;
(b)reasonable prior written notice must be given;
(c)the audit must take place during normal business hours and minimise disruption;
(d)the auditor must be subject to appropriate confidentiality obligations; and
(e)the Instructing Party must bear its own costs and the reasonable costs incurred by the Processing Party in facilitating the audit.
7. International transfers
7.1.(General) Neither party may make a Restricted Transfer except under applicable Data Protection Laws. A Restricted Transfer may be made using an applicable adequacy decision or regulation, the EU SCCs, the UK Addendum, binding corporate rules or another lawful transfer mechanism recognised under applicable Data Protection Laws.
7.2.(EU Restricted Transfers) Where the GDPR applies to a Restricted Transfer and the EU SCCs are required, the EU SCCs are incorporated into this DPA by reference and apply as follows:
(a)Module 2 applies where the Data Exporter is a Controller and the Data Importer is a Processor;
(b)Module 3 applies where the Data Exporter is a Processor and the Data Importer is a Subprocessor;
(c)Clause 7 (Docking Clause) applies;
(d)in Clause 9, Option 2 (General Written Authorisation) applies and the notice period is the period specified in clause 4.2 of this DPA;
(e)the optional language in Clause 11 does not apply;
(f)in Clause 17, Option 1 applies and the EU SCCs are governed by the laws of Ireland;
(g)under Clause 18(b), disputes will be resolved by the courts of Ireland;
(h)Annex I is completed using the party details in the Agreement and the information in Appendix 1;
(i)Annex II is completed using Appendix 2; and
(j)Annex III is not applicable because Clause 9, Option 2 (General Written Authorisation) applies; the Processing Party’s current Subprocessor list is made available under clause 4.1 of this DPA.
For the purposes of the EU SCCs, the party transferring Relevant Personal Data is the Data Exporter and the party receiving it is the Data Importer.
7.3.(UK Restricted Transfers) Where UK Data Protection Laws apply to a Restricted Transfer and the UK Addendum is required:
(a)the EU SCCs completed under clause 7.2 apply together with the UK Addendum;
(b)for Part 1 of the UK Addendum:
(i)Table 1: the parties and their details are those set out in the Agreement; the Key Contact for SiteMinder is privacy.officer@siteminder.com and the Key Contact for Reseller is the Nominated Representative and email specified in the Order; and the start date is the date on which the relevant Restricted Transfer commences;
(ii)Table 2: the Approved EU SCCs are the EU SCCs completed as set out in clause 7.2;
(iii)Table 3: the Appendix Information is the information identified in clause 7.2(h)–(j); and
(iv)Table 4: neither party may end the UK Addendum under section 19 solely as a result of an amendment to the Approved Addendum; and
(c)the following mandatory terms are incorporated by reference:
“Part 2: Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament under section 119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of those Mandatory Clauses.”
7.4.(Other Restricted Transfers) Where another applicable Data Protection Law requires contractual safeguards for a Restricted Transfer, the parties must implement the applicable standard contractual clauses or another lawful transfer mechanism recognised under that law, together with any required local modifications.
7.5.(Transfer assessments) Where required by applicable Data Protection Laws, the party responsible for initiating a Restricted Transfer must undertake the required transfer risk assessment, data protection test or equivalent assessment. The other party must provide reasonable information and assistance necessary to support that assessment.
7.6.(Priority) If there is any conflict between this DPA and the EU SCCs or UK Addendum in relation to a Restricted Transfer, the EU SCCs or UK Addendum, as applicable, prevail.
8. US State Privacy Laws
8.1.(Application) To the extent US State Privacy Laws regulate a Processing Party as a processor, service provider, contractor or equivalent in relation to Relevant Personal Data, this clause 8 applies. Terms used in this clause 8 that are defined in applicable US State Privacy Laws have the meanings given to them under those laws.
8.2.(Processing restrictions) To the extent clause 8.1 applies, the Processing Party must:
(a)Process Relevant Personal Data only for the limited and specified business purposes described in the Agreement and Appendix 1, or as otherwise permitted by applicable US State Privacy Laws;
(b)not sell or share Relevant Personal Data, or otherwise make Relevant Personal Data available for cross-context behavioural advertising, except as permitted by applicable US State Privacy Laws;
(c)not retain, use or disclose Relevant Personal Data outside the direct business relationship with the Instructing Party or for any purpose other than the purposes specified in paragraph (a), except as permitted by applicable US State Privacy Laws;
(d)not combine Relevant Personal Data with Personal Data received from or on behalf of another person, or collected from the Processing Party’s own interaction with a Data Subject, except as permitted by applicable US State Privacy Laws;
(e)provide the same level of privacy protection for Relevant Personal Data as is required of the Instructing Party under applicable US State Privacy Laws in relation to the relevant Processing;
(f)notify the Instructing Party if the Processing Party determines that it can no longer meet its obligations under applicable US State Privacy Laws in relation to Relevant Personal Data; and
(g)permit the Instructing Party to take reasonable and appropriate steps to verify, stop and remediate any unauthorised use of Relevant Personal Data, subject to clause 6.3 (Audits).
9. General
9.1.(Liability) Except to the extent that the EU SCCs, UK Addendum or applicable Data Protection Laws require otherwise, each party’s liability arising out of or in connection with this DPA forms part of, and is subject to, the limitations and exclusions of liability in clause 15 of the Agreement.
9.2.(Order of precedence) If there is any inconsistency:
(a)the EU SCCs or UK Addendum prevail to the extent applicable to a Restricted Transfer;
(b)otherwise, this DPA prevails over the Agreement to the extent the inconsistency relates to the processing of Personal Data; and
(c)the Agreement prevails in all other respects.
9.3.(Governing law) Except as otherwise required by the EU SCCs or UK Addendum, this DPA is governed by the governing law applicable to the Agreement.
9.4.(Survival) The obligations in this DPA continue for so long as a party retains or processes Relevant Personal Data received or processed under the Agreement.
Appendix 1 – Processing Details
1.Subject matter: Processing of Personal Data as reasonably necessary to provide, receive, resell, integrate, connect, administer, support and operate the Services and the parties’ respective services under the Agreement.
2.Duration: For the duration of the relevant Order and thereafter for so long as the Processing Party retains Relevant Personal Data under the Agreement, this DPA or applicable law.
3.Nature and purpose of Processing: Processing may include collection, access, recording, organisation, transmission, hosting, storage, retrieval, consultation, integration, use, disclosure, support, troubleshooting, modification, deletion and other Processing reasonably necessary to perform the Agreement, including, where enabled as part of the Services and to the extent undertaken by the Processing Party on behalf of the Instructing Party, analysis of Relevant Personal Data and generation of recommendations, insights or other outputs using AI-enabled functionality.
4.Categories of Data Subjects: Relevant Personal Data may relate to End Users and their personnel; Guests and prospective Guests; SiteMinder and Reseller personnel, contractors and representatives; users of the Services; and other individuals whose Personal Data is submitted to or processed through the Services.
5.Categories of Personal Data: Relevant Personal Data may include names, contact details and identity information; hotel, accommodation, booking and reservation information; Guest preferences and communications; transaction and payment-related information; account, authentication and user information; device, browser, usage, log and technical information; customer support and communications data; and other Personal Data submitted through or generated in connection with the Services.
6.Special category or sensitive Personal Data: The Services are not intended specifically for the processing of special category or sensitive Personal Data, but such information may be included where submitted in connection with a booking, Guest request or use of the Services, including information concerning accessibility, dietary or health requirements. Where such data is processed, the Processing Party must apply safeguards appropriate to the sensitivity of the data and the requirements of applicable Data Protection Laws.
7.Frequency: Processing and transfers may occur on a continuous, recurring or occasional basis as required to perform the Agreement.
8.Retention: Relevant Personal Data will be retained for the period necessary to perform the Agreement and thereafter under clause 6.1 and applicable retention requirements.
9.Competent Supervisory Authority for EU SCCs: The competent Supervisory Authority will be determined under Clause 13 of the EU SCCs.
10.Subprocessors: The applicable Subprocessors are those contained in the Processing Party’s current Subprocessor list made available under clause 4.1 of this DPA.
Appendix 2 – Technical and Organisational Measures
Each Processing Party must maintain measures appropriate to the Relevant Personal Data and the risks associated with the processing, including as appropriate:
1.Access controls: role-based access, least-privilege access and appropriate authentication controls.
2.Encryption: encryption of Personal Data in transit and, where appropriate, having regard to risk, at rest.
3.System security: appropriate system hardening, vulnerability identification, patching and remediation processes.
4.Monitoring: appropriate security logging, monitoring and mechanisms designed to identify unauthorised access and security events.
5.Availability and resilience: appropriate backup, recovery, business continuity and resilience measures having regard to the nature of the Services.
6.Incident management: documented procedures for detecting, investigating, responding to and remediating security incidents and Personal Data Breaches.
7.Personnel: appropriate confidentiality obligations, security awareness and data protection training for personnel with access to Relevant Personal Data.
8.Supplier security: reasonable due diligence and contractual security requirements for Subprocessors that process Relevant Personal Data.
9.Data lifecycle: appropriate retention, secure disposal and deletion procedures.
10.Testing: periodic assessment and testing of the effectiveness of relevant security controls.
Annexure B
Support Schedule
Item 1 – Reseller Provided Services
| Service | Service Description |
|---|---|
| Setup and onboarding | Reseller must provide a written request to SiteMinder to create each End User Account (meaning an account for an End User to access the Services). Once created, Reseller is responsible for configuring and completing setup. |
| Channel Configuration | Reseller will process channel addition requests and room changes (including mappings) for End Users. |
| Level 1 End User Support | Reseller will self-manage, log, view and track support cases for End Users, troubleshoot room mapping and connection faults, and escalate unresolved Level 2 support issues to SiteMinder. |
| Training | Reseller will provide training to End Users on how to operate the Services. |
| Billing | Reseller is responsible for billing End Users directly. SiteMinder will bill Reseller for the services provided. |
Item 2 – SiteMinder Provided Services
| Service | Service Description |
|---|---|
| Setup and onboarding | SiteMinder will create and provide an End User Account as soon as practicable after receiving a written request from Reseller. |
| Channel Configuration | SiteMinder will provide Reseller with a co-branded channel management account and login for each End User. SiteMinder will provide Reseller with access to add booking websites for the End Users and request activations utilising Reseller’s software. Activation of booking website connections will be performed by SiteMinder and included in the Fees. SiteMinder will generally process booking website activation and room mapping requests within 2 Business Days (Monday to Friday, 8am-6pm in the Support Time Zone). |
| Level 2 Reseller Support | SiteMinder will provide support to Reseller for channel management during core business hours (Monday to Friday, 8am-6pm in the Support Time Zone), including a dedicated account manager and an online help portal. |
Annexure C
Worked Examples
Examples use made-up figures and assume a profit share of 10%. The percentage that applies to Reseller is the one in the Order.
Example 1 — Channels Plus
For the fortnight, Channels Plus Revenue (worked out on the RRP) is $10,000. SiteMinder’s Transaction Services Costs are $1,000, and the OTA Commission is $2,000.
| Working out the profit share | Amount |
|---|---|
| Channels Plus Revenue | $10,000 |
| less Transaction Services Costs | -$1,000 |
| less OTA Commission | -$2,000 |
| Channels Plus Gross Margin | $7,000 |
| Profit share (10% of $7,000) | $700 |
What happens next depends on who collects the money.
If the OTA collects the money
| Step | Amount |
|---|---|
| SiteMinder invoices the OTA ($10,000 less the $2,000 OTA Commission) | $8,000 |
| SiteMinder pays Reseller its profit share, within 5 Business Days of being paid by the OTA | $700 |
If Reseller collects the money (clause 8.1(a)(ii))
Say Reseller charges its own customers $12,000 for the fortnight.
| Step | Amount |
|---|---|
| Reseller collects from its customers | $12,000 |
| SiteMinder invoices Reseller ($10,000 less the $700 profit share) | $9,300 |
| What Reseller keeps ($700 profit share, plus $2,000 for charging above the RRP) | $2,700 |
Example 2 — Demand Plus
For the fortnight, Demand Plus Revenue (worked out on the RRP) is $5,000, and SiteMinder’s Transaction Services Costs are $1,000. Reseller charges its own customers $6,000.
| Step | Amount |
|---|---|
| Demand Plus Revenue | $5,000 |
| less Transaction Services Costs | -$1,000 |
| Demand Plus Gross Margin | $4,000 |
| Profit share (10% of $4,000) | $400 |
| What Reseller pays SiteMinder ($5,000 less the $400 profit share) | $4,600 |
| Step | Amount |
| Reseller collects from its customers | $6,000 |
| What Reseller keeps ($400 profit share, plus $1,000 for charging above the RRP) | $1,400 |
Reseller pays SiteMinder the $4,600 even if its own customers have not paid Reseller yet
Example 3 — Dynamic Revenue Plus
For the fortnight, Dynamic Revenue Plus Revenue (worked out on the RRP) is $3,000. Reseller charges its own customers $3,500.
| Step | Amount |
|---|---|
| Dynamic Revenue Plus Revenue | $3,000 |
| Profit share (10% of $3,000) | $300 |
| What Reseller pays SiteMinder ($3,000 less the $300 profit share) | $2,700 |
| Reseller collects from its customers | $3,500 |
| What Reseller keeps ($300 profit share, plus $500 for charging above the RRP) | $800 |
Example 4 — if Reseller charges less than the RRP
Using the Demand Plus figures in Example 2, say Reseller charges its customers $4,000 instead of $6,000. Nothing about the calculation changes: Demand Plus Revenue is still $5,000, and Reseller still pays SiteMinder $4,600. Because Reseller only collected $4,000, it is $600 out of pocket for the fortnight, even though its profit share was $400.