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Terms and Conditions

By submitting a Sales Order Form, clicking “I Agree”, or using a SiteMinder Product, you acknowledge that you have read and agree to these terms and conditions.

1. Definitions and Interpretation

1.1

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

Agreement means the agreement constituted between you and SiteMinder comprising the Sales Order Form, these terms and conditions, any applicable schedules or addendums, and any applicable Product Schedules.

Booking Sites means websites or applications through which guests can view, compare and reserve accommodation plus related goods and services.

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

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.

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 management time; and
  7. any indirect, special, economic, incidental or consequential loss or damage, however arising, whether based in contract (including under any indemnity), in tort (including negligence), in equity, under the provisions of any law or otherwise.
Control in relation to an entity means the capacity to determine the outcome of decisions about the entity’s financial or operating policies.

Customer, “you” or “your” means the person or entity purchasing or using a Product.

Customer Software means any software or system used by you, including any property management system or central reservation system, that is not 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 UK Data Protection Act 2018 and the European Union General Data Protection Regulation (GDPR).

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

Fault means any fault which renders a Product inoperable.

Fees means the fees payable by the Customer for Products or Services provided under the Agreement, as specified in the Sales Order Form.

Force Majeure Event means anything which prevents a party from performing, or delays the performance of, any of its obligations under the Agreement (other than an event or circumstance that results in a party not having sufficient funds to comply with an obligation to pay) and is beyond the control of the affected party, including (without limitation):

  1. a force of nature 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).
Free Trial means a trial of the Products and/or Services without charge, but subject to all other terms in the Agreement.

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.

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.

Initial Term means the period specified in the Sales Order Form.

Individual Hotel Acceptance Form means the form set out in Annexure A to the Sales Order Form and completed by each Customer that is part of a group represented by the Promoter.

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

  1. a receiver, manager, trustee or administrator is appointed over 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 for the winding up or dissolution of the party, otherwise than for the purpose of a corporate reorganisation; 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. trade marks, patents, copyright, designs and domain names; 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.

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.

Product means any product supplied by SiteMinder.

Product Schedule means a schedule describing the specifications and functionality of each Product, as updated from time to time and available on the Website.

Promoter, “you” or “your” means the person or entity specified in the Sales Order Form that has negotiated group pricing for Products to be made available to an affiliated group of Customers.

Property means the building, dwelling or location from which the Customer provides accommodation and related goods and services to guests

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.

Sales Order Form means an order form or other written communication, including a digital or online form, between SiteMinder and the Customer specifying the Products the Customer has purchased.

Services means services ancillary to the supply of Products, including but not limited to:

  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, “our”, “us” or “we” means:

  1. for any Promoter or Customer principally located in Europe, Middle East or Africa – SiteMinder Distribution Limited (a company incorporated in England & Wales No. 07242801) of Waterfront, Hammersmith Embankment, Manbre Road, London W6 9RH, United Kingdom;
  2. for any Promoter or Customer principally located in the USA, Canada, Central and South America – SiteMinder Hospitality Corporation (a company incorporated in Delaware) having its principal place of business at The Colonnade, Tower 1, Suite 350, 15301 North Dallas Parkway, Addison TX 75001, USA; and
  3. for any other Promoter or Customer – SiteMinder Limited (a company incorporated in Australia, ACN 121 931 744) of Bond Store 3, 30 Windmill Street, Millers Point, NSW 2000, Australia.
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 the Products or Services.

SiteMinder Software means all software in the Products, Services 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 means the Initial Term and each Renewal Term.

Trial Period means the period specified by SiteMinder.

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

1.2

The following rules of interpretation apply unless the context requires otherwise:

  1. a reference to parties to the Agreement includes any person who executes a deed of accession to it;
  2. a reference to a party includes the party’s successors, permitted assigns and Related Bodies Corporate;
  3. a reference to a person includes a body corporate, an unincorporated body, enterprise, firm, trust, joint venture, syndicate or other entity;
  4. a reference to a clause is to a clause of these terms and conditions;
  5. a reference to a schedule is to a schedule of the Agreement;
  6. 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;
  7. a reference to conduct includes any omission, statement or undertaking, whether or not in writing;
  8. the singular includes the plural and conversely;
  9. 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
  10. if an obligation must be performed by two (2) or more persons, it binds them jointly and individually.

2. Term

2.1

The Agreement between SiteMinder and the:

  1. Promoter commences on the Effective Date and continues for as long as SiteMinder provides a Product or Service to a Customer in its group; and
  2. Customer commences on the Effective Date and continues for the Term, unless earlier terminated in accordance with clause 12.

2.2

At the end of the Initial Term, unless the Customer has provided SiteMinder with 30 days’ prior written notice that it wishes to opt out of the Agreement, the Initial Term will renew on a rolling monthly basis (each month being a “Renewal Term”).

3. Supply of Products

3.1

SiteMinder agrees to supply, and the Customer agrees to purchase, the Products specified in the Sales Order Form for the duration of the Term.

3.2

We may make changes, modifications and updates to the Products and Services (including adding or removing functionality or features) from time to time as long as there is no material degradation of the Products.

3.3

Access to the Products and Services is granted subject to the following conditions:

  1. they may only be used by Customer Users;
  2. they must not be used to provide a service or functionality which is similar to the Products or competes with SiteMinder;
  3. they must not be copied, reproduced, resold or resupplied; and
  4. they must not be used for any purpose other than the purpose for which they are supplied under the Agreement, including (without limitation):

    1. for any improper or unlawful purpose;
    2. to damage or interfere with the SiteMinder Infrastructure or the supply of the Products and Services to other Customers;
    3. to host or transmit information containing viruses or other harmful code; or
    4. to modify, reverse engineer, decompile, create other works from, or disassemble any programs contained in the SiteMinder Software.

3.4

We represent and warrant that:

  1. the Products will be supplied and supported by appropriately qualified and trained personnel acting with due care and diligence;
  2. each Product will comply with the relevant Product Schedule; and
  3. we are PCI DSS compliant and will remain so for the duration of the Agreement.

3.5

  1. The warranties provided in clause 3.4 are exhaustive and you acknowledge and agree that the Products and Services are provided “as is” without any other warranty or condition, express, implied or statutory, to the maximum extent permitted by law.
  2. We specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement to the maximum extent permitted by law.
  3. We do not guarantee continuous, uninterrupted access to the Products or Services as the Products and Services, being SaaS technology that relies on complex connectivity between the SiteMinder Infrastructure and third party systems via the internet, may be interfered with by numerous factors outside of our reasonable control.
  4. You are responsible for implementing appropriate security processes, systems and procedures to protect yourself from the download of any virus, worms, Trojan horses or other code that has contaminating, harmful or destructive qualities.

3.6

You acknowledge that when assessing your application to purchase the Products, we may require information to verify your identity, size and scale, which may be requested from you or from third parties (e.g. credit agencies). You agree to provide all information reasonably required for such purposes and you authorise us to contact any such third party to obtain the relevant information.

3.7

We will issue each Customer User with login credentials to access the Products (including username and password). These login credentials are personal and must not be shared. The Customer and Customer Users must maintain adequate security to ensure that no other person gains access to the login credentials.

3.8

  1. You must not store credit card data, including name, number, expiry details and CVV, in any part of a Product or database which is not specifically designed for the storage of encrypted credit card information.
  2. You agree to indemnify, defend and hold us harmless from and against any liability, claim, action, loss, harm, damage, cost or expense arising out of a breach of this clause 3.8.

3.9

  1. Where the Customer is the manager of the Property on behalf of a Property owner, the Customer represents and warrants 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. The Customer agrees that written notice from the Property owner will be sufficient evidence of such termination.
  3. If there is a dispute over the ownership of the Customer’s business or the Property, in the interests of guests, SiteMinder may allow the Property owner to download Hotel Data relating to forward reservations.

4. Fees

4.1

  1. The Customer agrees to pay the Fees for the entire duration of the Term.
  2. If a Free Trial is offered to the Customer, the Customer is entitled to use the relevant Products for the Trial Period free of charge.
  3. If the Customer does not wish to continue using the Products or Services, it must terminate the Agreement during the Trial Period by providing written notice to SiteMinder.
  4. If the Customer does not terminate the Agreement in accordance with clause 4.1(c), SiteMinder will commence charging for the Products and Services from the first day following the Trial Period.

4.2

  1. SiteMinder will invoice the Customer monthly (in advance and/or in arrears) for Fees due under the Agreement. Fees paid in advance are non-refundable.
  2. Where the Fees involve a commission on transactions or revenue received by you in a currency other than the invoice currency, we may use publicly available foreign exchange rates to convert the amounts payable by you to the invoice currency.
  3. You must pay all 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.

4.3

  1. If the Customer disputes any part of an invoice, 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. Failing this, 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

If the Customer fails to make a payment due under the Agreement when called upon to do so, SiteMinder may charge the Customer default interest on the undisputed overdue amount from the due date for payment up to the date of actual payment at the Interest Rate.

4.5

  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.

4.6

Fees may be increased by up to 5% annually following the Initial Term.

5. Customer obligations

The Customer must:

  1. maintain the necessary infrastructure to support the provision of the Products and Services;
  2. ensure that all information and content inputted or uploaded to the Products 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 and maintain any technical specifications included in the Product Schedule, documentation provided by SiteMinder, or other reasonable directions given by SiteMinder from time to time in relation to the Products;
  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 the Products or SiteMinder Infrastructure; and
  8. provide SiteMinder and its contractors, agents and employees with prompt access to the Customer Software and to the Customer’s personnel, equipment, data and information as is reasonably required for the purpose of delivering the Products.

6. Maintenance and suspension

6.1

We may perform scheduled and unscheduled maintenance on the Products and SiteMinder Infrastructure from time to time. We’ll use reasonable efforts to give you notice before undertaking any scheduled maintenance that might impact on the operability of the Products.

6.2

We may suspend a Product or Service, or access to the SiteMinder Infrastructure, if and for as long as it is necessary to comply with any law, protect any person, system or equipment from harm, or to enable authorised persons to attend to an emergency.

7. Support

7.1

We will provide reasonable support to you and all Customer Users during business hours. You are responsible for all actions taken by our support staff upon your verbal or written instructions.

7.2

You must treat all SiteMinder staff with respect and refrain from engaging in any abusive, aggressive or vexatious behaviour towards SiteMinder’s representatives. You acknowledge and agree that a breach of this clause 7.2 is a material breach of the Agreement.

8. Faults

8.1

The Customer must report Faults to SiteMinder’s support team without undue delay.

8.2

SiteMinder is not responsible for rectifying Faults where the Fault is caused by the Customer Software.

8.3

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. Privacy and data protection

9.1

  1. For the purposes of this clause 9, “Personal Data” means the Personal Information of the Customer’s guests.
  2. The purpose of SiteMinder’s processing of Personal Data is the supply of the Products and Services pursuant to the Agreement. The parties acknowledge and agree that the Customer is the controller and SiteMinder is the processor of such Personal Data.
  3. Each party must comply with the Data Protection Requirements.

9.2

SiteMinder must:

  1. process Personal Data only in accordance with the Customer’s reasonable and lawful written instructions, for the purposes of performing its obligations under the Agreement and for no other purpose except as otherwise stated in clause 9.4 of these terms and conditions 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, 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 12.5, return to the Customer or destroy all Personal Data in SiteMinder’s possession or control;
  7. make available to the Customer such information as is reasonably necessary to demonstrate SiteMinder’s compliance with this clause 9;
  8. 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 Business 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 GDPR. SiteMinder will notify the Customer of such subcontractors if and when they are appointed or replaced.

9.3

The Customer must ensure that Personal Data 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 in order for SiteMinder to process Personal Data pursuant to the Agreement.

9.4

You acknowledge that the collection, use and storage of Personal Data and your Personal Information may be necessary for the perform the Agreement, including for:

  1. billing and account management;
  2. support; and
  3. marketing Products and Services to you.

9.5

We will all times comply with our Privacy Policy, available on the Website. If there is any inconsistency between the Privacy Policy and this clause 9, this clause 9 will prevail.

10. Confidentiality

10.1

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

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

The Recipient must:

  1. treat all Confidential Information as confidential and not make it public or disclose it to any other person unless it has first obtained the written consent of Disclosing Party;
  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

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 co-operate with the Disclosing Party to limit the disclosure to the maximum extent permitted by law.

10.5

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

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

  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

  1. All Intellectual Property Rights which are owned by the parties as at the Effective Date will at all times remain owned by them 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 Promoter or Customer any rights, title or interest in, or a licence to use, SiteMinder’s Intellectual Property Rights.

11.2

The Promoter and Customer:

  1. acknowledge and agree that the SiteMinder Software is SiteMinder’s Confidential Information protected by copyright;
  2. must not attempt to modify or create any derivative work of the Products or SiteMinder Software;
  3. must not remove, modify or obscure any copyright, trade mark or other proprietary rights notices that are contained in or on the Products or SiteMinder Software; and
  4. must 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 Products or SiteMinder Software.

11.3

The Customer grants SiteMinder the right to use Hotel Data 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 discoverable.

12. Termination

12.1

You may terminate the Agreement:

  1. if we commit 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 us; or
    2. the breach is not capable of remedy and you have provided us with reasonable notice of the breach;
  2. immediately if we suffer an Insolvency Event;
  3. in accordance with clause 13 (Force Majeure Event);
  4. if you decide not to renew the Initial Term, in accordance with clause 2.2; or
  5. at any time after the Initial Term by giving us 30 days’ prior written notice.

12.2

We may terminate the Agreement:

  1. if you have 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 you; or
    2. the breach is not capable of remedy and we have provided you with reasonable notice of the breach;
  2. immediately if you suffer an Insolvency Event;
  3. in accordance with clause 13 (Force Majeure Event);
  4. if you breach any of the conditions in clause 3.2; or
  5. at any time after the Initial Term by giving you 30 days’ prior written notice.

12.3

On termination of the Agreement, you must cease using the Products and we will invoice the Customer in respect of all unpaid fees owing to us for the remainder of the Term (unless terminated by you in accordance with clause 12.1(a), 12.1(b) or 12.1(c)).

12.4

If you wish to retain any Hotel Data stored in the Products, it must be downloaded prior to termination of the Agreement.

13. Force Majeure

13.1

Where any failure or delay by a party (Affected Party) in the performance of its 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, to the extent to which they are affected by the Force Majeure Event, are suspended for the duration of the Force Majeure Event.

13.2

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

Unless expressly stated to the contrary in the Agreement, neither party is liable to the other for any Consequential Loss arising in connection with the Agreement.

14.2

Where legislation implies into 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 Products:

    1. the replacement of the Products or the supply of equivalent Products;
    2. the repair of such Products;
    3. the payment of the cost of replacing the Products or of acquiring equivalent Products; or
    4. the payment of the cost of having the Products repaired; and
  2. if the breach relates to Services:

    1. the resupply of the Services; or
    2. the payment of the cost of having the Services supplied again.

14.3

  1. To the extent permitted by law, each party’s total aggregate liability in respect of all claims made under the Agreement (including in respect of any claims in tort) 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 a party’s fraud, gross negligence or wilful misconduct.

15. Indemnity

15.1

We will indemnify you against any claim that the Products, or the Customer’s use of the Products in accordance with the Agreement, infringes the Intellectual Property Rights of a third party (Indemnity Claim).

15.2

We will have no liability in respect of an Indemnity Claim unless you comply 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, you must notify us in writing, providing details of the Indemnity Claim;
  2. you must make no admission of liability; and
  3. you must fully assign to us the right to defend or compromise any claim.

16. Disputes

16.1

  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 and act in good faith to resolve the dispute notified under clause (a) by negotiation between a senior manager of each of them and for a period of at least 20 Business Days.

16.2

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

17. General

17.1

The Agreement, and any rights, obligations or licenses pursuant to it, may not be assigned without the prior written consent of each of the parties. If you wish to assign the Agreement and/or your SiteMinder account, please contact us.

17.2

If you suffer a change in Control and the new controller is (a) a competitor to SiteMinder or (b) poses a material threat to SiteMinder’s business, we may terminate the Agreement and the supply of any Products or Services by providing you with reasonable prior written notice.

17.3

  1. A notice required or permitted to be given by you must be provided to us in writing and in English.
  2. A notice 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

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

17.5

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

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

17.7

Each attorney and any other individual executing 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

The 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

The provisions which are capable of having effect after termination of the Agreement will remain in full force and effect.

17.10

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

17.11

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.

Where the Agreement gives us a right or power to consent or approve in relation to a matter under the Agreement, it may be withheld or given conditionally or unconditionally in our absolute discretion.

17.13

The Agreement does not create any relationship of partnership or employment, franchise, joint venture or agency between the parties.

17.14

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.

– END TERMS –

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