These terms and conditions apply to all services supplied by SiteMinder. By completing and submitting the Registration Form to SiteMinder, or clicking “I Agree”, or using a SiteMinder Product, you acknowledge that you have read and agree with the following terms and conditions.
1. Definitions and Interpretation
In these terms and conditions, unless the context otherwise requires:
Agreement means the agreement constituted between SiteMinder and the Customer comprising these terms and conditions and any applicable Product Schedules.
Booking Sites means websites for online travel agents, distribution agents, global distribution services, wholesale travel agents and others through which a potential hotel guest can view, compare or reserve hotel accommodation and related goods and services.
Business Day means a day that is not a Saturday, Sunday or public holiday.
Commencement Date has the meaning given in clause 2.1.
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 the form of the information and when it was acquired) and includes trade secrets, technical knowledge, concepts, designs, plans, precedents, processes, methods, techniques, knowhow, innovations, ideas, procedures, research data, financial data, databases, personnel data, computer software and programs, customer and supplier information, correspondence and letters and papers of every description including all copies or extracts of same relating to the affairs or business of the party.
Control in relation to a party has the meaning given in section 50AA of the Corporations Act.
Consequential Loss means:
- loss of revenue, loss of profits, loss of anticipated profits or loss of (or failure to achieve) anticipated savings;
- loss of actual or potential opportunities or loss of contracts;
- loss of or damage to goodwill or reputation;
- loss arising from damage to credit rating or increased financing costs;
- loss of data or corruption of data;
- loss arising from business interruption or loss or damage resulting from wasted managed time; or
- any indirect, special, economic, incidental or consequential loss or damage, howsoever arising, whether based in contract (including under any indemnity), in tort (including negligence), in equity, under the provisions of any law or otherwise.
Corporations Act means the Corporations Act 2001 (Cth), Australia.
Customer Software Application means any software used by the Customer to manage bookings, including any property management system or central reservation system, but excluding any SiteMinder Software.
Customer Users mean officers, employees, agents, contractors or representatives of the Customer.
Data Protection Requirements means any applicable code, legislation, regulation, statute or order which may apply from time to time relating to the collection, storage and use of Personal Information including (without limitation) the Australian Privacy Act 1988 (Cth), the Australian Privacy Principles, the UK Data Protection Act 1998, the EU Data Protection Directive 95/46/EC and comparable laws, regulations, guidance and codes of practice issued by the Information Commissioner or Privacy Ombudsman, as the case may be in the applicable jurisdiction.
End User means a person who acquires a service from the Customer that is a resupplied version or a derived version of a Product or Service supplied to the Customer by SiteMinder.
End User Details means all information about the End Users in the Customer’s possession or control including, but not limited to, full name, billing address, street address and, if applicable, details of ordered and supplied Services.
Fault means any fault which renders a Product inoperable.
Fees means the fees payable by the Customer to SiteMinder for Products or Services provided under this Agreement, as specified in a relevant Sales Order Form.
Force Majeure Event means any act, event or cause which prevents a party from performing, or delays the performance of, any of its obligations under this Agreement, to the extent that the act, event or cause is beyond the reasonable control of the affected party, including (without limitation):
- forces of nature, any act of God, fire, storm or explosion;
- any strike, lockout, industrial action, war, sabotage, riot, act of terrorism, any denial of service attack, insurrection, civil commotion, national emergency (whether in fact or in law), power shortage, epidemic, quarantine, radiation or radioactive contamination;
- any action or inaction by any organ of government or government agency;
- a change in any law including any new law;
- a breakdown of plant, machinery or equipment, telecommunications failure or shortages of labour, transportation, fuel, power or plant, machinery, equipment or material (including short supply from the regular source or supplier); or
- a Supplier Failure.
Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute.
GST has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth) or any comparable value added or similar tax on sales or supplies in any applicable jurisdiction.
Guest means a guest at a Customer’s property.
Hotel Data means all data relating to Customer’s hotels, including (without limitation) room rates, room types, room availability, rate plans, restrictions, occupancy, Guest data, reservations, images and content.
Insolvency Event means in relation to a party:
- a receiver, receiver and manager, trustee, administrator, other controller (as defined in the Corporations Act) or similar official is appointed over any of the assets or undertaking of the party;
- the party suspends payment of its debts generally;
- the party is or becomes unable to pay its debts when they are due;
- the party enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
- the party ceases to carry on business or threatens to cease to carry on business;
- a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, an administrator;
- an application or order is made for the winding up or dissolution of the other party, or a resolution is passed, or any steps are taken to pass a resolution, for the winding up or dissolution of the other party, otherwise than for the purpose of an amalgamation or reconstruction that has the prior written consent of the first party; or
- a party is presumed to be insolvent within the meaning of any applicable statute or regulation, or threatens to do any of (a) – (g);
- any similar or corresponding application or process is made, planned or threatened in any other jurisdiction in which the Services are provided or the Customer is located.
Intellectual Property Rights means all intellectual property rights, including the following rights:
- patents, copyright, rights in circuit layouts, registered and unregistered designs, trade marks, domain names, business names and any right to have confidential information kept confidential; and
- any application or right to apply for registration of any of the rights referred to in paragraph (a).
Interest Rate means 5% above the base cash rate of the Reserve Bank of Australia from time to time.
PCI DSS means the Payment Card Industry Data Security Standard issued by the Payment Card Industry Security Council from time to time and available at: https://www.pcisecuritystandards.org/document_library?document=pci_dss
Personal Information has the meaning given in the Privacy Act 1988 (Cth) as amended from time to time.
Product means a product supplied by SiteMinder including (without limitation) SiteMinder “Channel Manager”, SiteMinder “The Booking Button”, SiteMinder “Little Hotelier”, SiteMinder “Prophet” and SiteMinder “Canvas”, each as more particularly specified in the relevant Product Schedule.
Product Schedule means a schedule describing the specifications and functionality of each SiteMinder Product, as updated from time to time, which are available on the Website.
Registration Form means the application form to use a Product available on the Website.
Related Bodies Corporate has the meaning given to that expression in the Corporations Act.
Sales Order Form means the order form in SiteMinder’s standard format, signed by the Customer, which details the Products the Customer has ordered.
Servicemeans the supply of one or more Products and may also include any of the following:
- installation, integration, maintenance, assistance or back up services;
- any related documentation and websites (including source code and databases);
- help desk systems and support;
- other connectivity applications and interfaces;
- conversion or adaptation of data and information on the Customer’s or End User’s systems;
- the loading and/or preparation of copy or content of software, data, text, images, sounds, videos, and other content provided by SiteMinder or uploaded by SiteMinder.
- for any 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;
- for any 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;
- for any other Customer – Online Ventures Pty Ltd (a company incorporated in Australia, ACN 121 931 744) of Level 3, 88 Cumberland Street, The Rocks, 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 or use the Products.
SiteMinder Software means all software in the Products and/or SiteMinder Infrastructure.
Supplier Failure means a failure of any equipment, product or service supplied to SiteMinder by a third party which is required by SiteMinder to perform its obligations under this Agreement.
Third Party EULA means in respect of any Third Party Software, the licence terms which the Customer must comply with when using that Third Party Software.
Third Party Software means the licensor of Third Party Software.
Third Party Software Licensor means the owner of Third Party Software.
Trial Period means an initial period of 30 days commencing on the issue of a username and password to the Customer.
Website means https://siteminder.com/legal.
Headings are for convenience only and do not affect interpretation. The following rules of interpretation apply unless the context requires otherwise:
- the singular includes the plural and conversely;
- a gender includes all genders;
a reference to a person includes a body corporate, an unincorporated body, enterprise, firm, trust, joint venture, syndicate or other entity and conversely;
- a reference to a clause or schedule is to a clause of or schedule to this agreement;
- a reference to any party to this agreement or any other agreement or document includes the party’s successors and permitted assigns;
- a reference to any legislation or to any provision of any legislation includes any amendment, consolidation or replacement of it, and all regulations and statutory instruments issued under it;
- a reference to conduct includes, without limitation, any omission, statement or undertaking, whether or not in writing;
- a reference to a party is a party to this agreement or any person who executes a deed of accession to this agreement;
- terms defined in the Corporations Act have the same meaning in this agreement, unless the context expresses otherwise;
- If any payment by a party under this agreement 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
- if an obligation must be performed by 2 or more persons it binds them jointly and individually.
2. Term and application of agreement
This Agreement commences on the earlier of:
- the first date the Customer clicks “I agree to the web terms and conditions” button on the Website accepting these terms and conditions;
- the issue to the Customer of a username and password by SiteMinder; or
- the Customer’s first use of a Product or Service, (Commencement Date).
This Agreement continues to apply as long as SiteMinder continues to provide one or more Products or Services to the Customer, or otherwise terminated in accordance with clause 13.
3. Supply of Services
3.1 Grant of Licence
SiteMinder grants the Customer a non-exclusive, non-transferable, worldwide, revocable, royalty-free licence to use such SiteMinder Intellectual Property as is required to access the SiteMinder Infrastructure and use the Products specified in a Sales Order Form, subject to these terms and conditions, for the duration of the Term.
3.2 Use of Products and Services
The licence in clause 3.1 is granted subject to the following conditions:
- the Products, SiteMinder Software and SiteMinder Infrastructure are for the Customer’s sole and exclusive use and may only be used as permitted under this Agreement;
- the Products must not be used to provide, in whole or in part, any service or functionality which competes with SiteMinder’s Products or business;
- the Customer must not reproduce or copy the SiteMinder Software in whole or in part except for backup and archive purposes;
- the Customer must not use the SiteMinder Products or SiteMinder Infrastructure for any purpose other than the purpose for which it is supplied under this Agreement, including (without limitation):
- for any improper or unlawful purpose;
- to create for the purpose of, or in a manner that transmits, publishes or communicates material which is defamatory, offensive, abusive, indecent, discriminatory, menacing, unwanted, in breach of confidence, illegal or which brings SiteMinder or any of SiteMinder’s agents into disrepute;
- in any way which damages or interferes with SiteMinder Infrastructure or the supply of the Service to other SiteMinder customers;
- to host or transmit information which contains viruses or other harmful code or data designed to interrupt, damage, destroy or limit the functionality of any software, hardware or equipment; or
- for any benchmarking or competitive purpose or to develop a similar or competitive product.
- Where SiteMinder provides access to Third Party Software the Customer must comply with the terms of any Third Party EULA or other terms imposed by the Third Party Software Licensor.
3.3 Service Warranties
SiteMinder represents and warrants that:
- the Services will be supplied and supported by appropriately qualified and trained personnel acting with due skill, care and diligence;
- it holds and has complied with all permits, licenses and other governmental authorisations necessary for conducting, carrying out and continuing its operations and business and it owns, controls or has obtained any and all necessary rights, licenses, permits and clearances required to provide the Services;
- each Product complies with the relevant Product Schedule.
3.4 PCI DSS Compliance
SiteMinder warrants that it is PCI DSS compliant and must remain compliant for the duration of this Agreement.
SiteMinder must store, process and transmit all cardholder data in accordance with the PCI DSS.
3.5 No reverse engineering
The Customer must not, and must ensure that any Customer User, End User or other third party to whom access has been granted by the Customer does not, modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the the SiteMinder Software or Third Party Software.
3.6 Suspension or termination for breach
SiteMinder may suspend or terminate access to any Products or Services in the event of any breach or suspected breach of this clause 3.
3.7 Registration Form
- Prior to commencing the use or trial of a Product, the Customer must complete and submit a Registration Form
- By lodging the Registration Form the Customer acknowledges that it has read, and agrees to comply with, these terms and conditions.
3.8 Application review and verification of identity
The Customer acknowledges that in assessing the application, SiteMinder may request additional information to verify the Customer’s identity and the size and scale its business, from the Customer or a third party (for example, a credit agency). The Customer expressly agrees to provide any information reasonably required for that purpose and authorises SiteMinder to contact any such third party to obtain relevant information.
3.9 Username and password
Once SiteMinder has approved the Customer’s application, SiteMinder will issue the Customer with a username and password to access the applicable Products. The Customer must not disclose the username or password to any person (other than Customer Users)
without the express authorisation of SiteMinder.
3.10 Username Security
The Customer must maintain adequate security to ensure that no unauthorised person gains access to its username and password. The Customer is solely liable for any data input into the SiteMinder Infrastructure by any person using the Customer’s assigned username and password (whether authorised or not). SiteMinder expressly disclaims any liability in respect of any loss or damage suffered or incurred by the Customer as a result of incorrect data input into the SiteMinder Infrastructure or use of the Products by any person using the Customer username and password and indemnifies SiteMinder in respect of any loss liability incurred by SiteMinder in respect of any unauthorised use or access.
4. Fees and Payment
4.1 Trial Period and commencement of billing
The Customer is entitled to use the relevant Products for the Trial Period free of charge. If the Customer does not wish to continue to use the Services after the end of the Trial Period it must terminate this agreement by written notice to SiteMinder at least one week prior to the end of the Trial Period. If the Customer does not terminate the Services in writing, SiteMinder will commence charging for the Services acquired by the Customer from the day after the last day of the Trial Period (Billing Commencement Date) and the Customer agrees to pay for the Products and Services supplied from the Billing Commencement Date.
4.2 Invoicing and payment
SiteMinder must invoice the Customer monthly in advance for Fees due under this Agreement in respect of Services to be provided in that month. The Customer must pay the invoiced Fees within 7 days of the invoice date 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 Disputed invoices
- If the Customer disputes any part of an invoice submitted by SiteMinder, the Customer must notify SiteMinder in writing within 7 days of receipt of the invoice of the reasons for disputing the invoice and pay the undisputed amount on or before the due date for payment. If the Customer does not notify SiteMinder within 7 days of receipt of the invoice the Customer will be deemed to have accepted the invoice as accurate.
- The parties must endeavour to resolve the disputed amount between themselves within 10 days of the notification being given by the Customer. If the parties do not resolve the dispute within 10 days of notification in writing by the Customer, the dispute resolution procedure set out in clause 17 applies.
4.4 Suspension for non-payment
SiteMinder may suspend overdue accounts without notice to the Customer. A $300 reinstatement charge applies to reactivate any suspended account once full payment has been received.
- All prices quoted for supplies made and/or to be made under this Agreement are exclusive of GST, unless expressed to the contrary in writing.
- If GST is applicable to any supply made by SiteMinder under this Agreement SiteMinder may add to the amount otherwise payable an additional amount for the applicable GST.
- The Customer agrees to pay SiteMinder such GST charge in the same manner and at the same time as the payment for the relevant supply.
- SiteMinder will issue tax invoices to the Customer for the purposes of GST.
- If required by applicable law, SiteMinder will give the Customer an adjustment note arising from the adjustment event relating to a taxable supply made under, or in connection with this Agreement within 30 days after the date SiteMinder becomes aware of the adjustment event.
5. Customer’s Obligations
5.1 Use of Products
The Customer must:
- maintain the necessary infrastructure to support the provision of the Services;
- comply with any operational procedures and maintain any technical specifications specified in any Product Schedule, or documentation provided by SiteMinder, or other reasonable directions given by SiteMinder from time to time in relation to the Products;
- comply with any applicable law and the requirements or directions of Government Agencies;
- provide SiteMinder with all information, assistance and co-operation reasonably requested by SiteMinder in order to enable SiteMinder to meet its obligations under this Agreement;
- 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;
- provide SiteMinder and its contractors, agents and employees with prompt access to the Customer Software Application and to the Customer’s personnel, equipment, data and information as is reasonably required to enable SiteMinder to provide the Services.
5.2 Site Content
The Customer is solely liable for all data uploaded into the SiteMinder Infrastructure and must ensure that all information and content provided is accurate and up to date. SiteMinder expressly disclaims any liability resulting from the publication of any inaccurate, defamatory, false or misleading information and the Customer indemnifies SiteMinder in respect of any loss, cost, damage or other liability incurred as a result of such data being included or available in a Product.
6. Maintenance and Suspension
- SiteMinder or Third Party Software Licensors may perform scheduled and unscheduled maintenance or perform updates in relation to the SiteMinder Infrastructure, the Products or the Third Party Software from time to time.
- SiteMinder will use its reasonable efforts to give the Customer notice undertaking any scheduled maintenance and will use reasonable endeavours to perform all scheduled maintenance at times likely to minimise interference to the Customer. If SiteMinder is required to perform unscheduled or urgent maintenance, then SiteMinder will use reasonable efforts to provide prior notice to the Customer however the Customer accepts that such prior notice may not always be possible.
6.2 Suspension by SiteMinder
SiteMinder may, upon reasonable notice, without liability and with immediate effect suspend a Service for as long as SiteMinder, acting reasonably, considers it necessary to comply with any law, protect any person, or equipment, or enable authorised persons to attend to any emergency, or to prevent any flooding of data or other action of the Customer or End Users which is causing SiteMinder Infrastructure to perform at a reduced level.
The SiteMinder support team will deal directly with the Customer’s centralised support function regarding basic configuration changes for accommodation providers and otherwise will provide basic support enquiries during local business hours.
7.2 Room Mapping for Channel Manager
The Customer must perform all room mappings through the Channel Manager interface for all channels that are enabled for dynamic room mapping. SiteMinder must perform activation of all new channels and room mappings for channels that are not enabled for dynamic room mapping.
8. Fault reporting and restoration
8.1 Fault reporting
- The Customer must report any Faults in relation to the Services to the SiteMinder network operations centre as soon as reasonably practicable after it becomes aware of them.
- Before reporting a Fault, the Customer should take all reasonable steps to ensure that the Fault is with the Service and not caused by any the Customer Software Applications or any Customer content or equipment.
- SiteMinder is not responsible for rectifying Faults where the Fault arises in or is caused by its Third Party Software Licensors or Third Party Software outside of SiteMinder’s reasonable control, but SiteMinder will request that Third Party Software Licensors rectify such Faults, or where the Fault is with the Customer’s PMS or Booking Site.
- The Customer is responsible for repairing faults relating to any Customer Software Applications, content or equipment.
8.2 Charges for restoration
The Customer is liable for all costs incurred by SiteMinder in restoring a Service where the Fault arises as a result of:
- any fault in any equipment, software or any network unit which does not form part of the SiteMinder Infrastructure;
- defects in Customer Software Applications, equipment or content;
- any defects in the Customer’s PMS or Booking Site’s system; or
- any act or omission of the Customer or Customer Users
9. Personal Information and Privacy
9.1 Personal Information
To the extent that Personal Information is collected, used, handled, processed and/or transferred under this Agreement, each party must:
- comply with the applicable Data Protection Requirements; and
- obtain all necessary rights and consents required to comply with the applicable Data Protection Requirements and only use or disclose Personal Information obtained during the course of performing this Agreement for the purposes of this Agreement;
- not process or transfer Personal Information outside the relevant jurisdiction to any third party without the other party’s prior written consent.
9.2 Use and disclosure of Personal Information
The Customer consents to the collection, use and storage of Personal Information of the Customer, Customer Users and Guests:
- for purposes relating to the supply of the Services to the Customer, including:
- billing and account management;
- product and service development;
- managing the Customer’s relationship with SiteMinder;
- marketing SiteMinder’s Services to the Customer;
- transferring data to and from Booking Sites;
- and to the disclosure of Personal Information of the Customer, Customer Users and Guests:
- to a Government Agency to assist in the investigation of crime or the enforcement of any laws;
- to any third party as required by law; and
- to Booking Sites or other SiteMinder suppliers; and
- and must obtain any consents or permissions necessary to enable this use of Personal Information.
10.1 Confidentiality Obligation
Each party (Recipient) which receives Confidential Information of the other party (Disclosing Party) under this Agreement acknowledges that all Confidential Information provided to it or to which it is exposed is confidential to the Disclosing Party.
10.2 Loss suffered
The Recipient acknowledges and agrees that the Confidential Information is, by virtue of its special nature, valuable property of the Disclosing Party and that the Disclosing Party may suffer damage or loss by any disclosure by the Recipient of the Confidential Information.
The Recipient must:
- treat all Confidential Information as confidential and not make public or disclose to any other person that Confidential Information unless it has first obtained the written consent of Disclosing Party to do so;
- prevent third parties from gaining access to the Confidential Information; and
- deliver and surrender to Disclosing Party upon request all records of Confidential Information held by it.
10.4 Disclosure Required
The Recipient may disclose Confidential Information if required to do so by a Government Agency or any law or court order, or the rules of any applicable securities exchange after first giving notice to Disclosing Party and after taking all practicable steps to cooperate with Disclosing Party to prevent the disclosure to the maximum extent permitted by law.
10.5 Permitted Disclosure
Each party may disclose Confidential Information to any of its employees, contractors, or advisers on a need to know basis as long as each such recipient is bound by an obligation of confidence substantially the same as contained in this Agreement.
10.6 Reference to Customer
SiteMinder may acknowledge that the Customer is a customer of SiteMinder and use the Customer’s logo (in accordance with Customer’s reasonable guidelines provided by the Customer to SiteMinder) in any press release, marketing, sales, or stock exchange reporting materials. Any other reference to the Customer by SiteMinder requires the Customer’s prior written consent.
11. Intellectual Property Rights
11.1 Ownership of Intellectual Property Rights
- All Intellectual Property Rights which are owned by either party as at the date of this Agreement will at all times remain owned by that party exclusively and nothing in this Agreement may be construed as transferring outright the ownership of the Intellectual Property of one party to another.
- Except as expressly provided, nothing in this Agreement confers on the Customer any right or interest in, or licence to use, SiteMinder’s Intellectual Property Rights.
11.2 Warranty limitation
- SiteMinder provides the SiteMinder Software and Services “as is” and without any warranty or condition, express, implied or statutory to the maximum extent permitted by law. SiteMinder, its related companies, officers, employees, its licensors and its suppliers specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement to the maximum extent permitted by law.
- SiteMinder does not guarantee continuous, uninterrupted access to SiteMinder Software and related services, and operation of the SiteMinder Software and the Website may be interfered with by numerous factors outside of our control. The Customer is responsible for implementing appropriate security processes, systems and procedures to protect itself from the download of any virus, worms, Trojan horses or other code that has contaminating or destructive qualities. SiteMinder does not guarantee or warrant that any file the Customer downloads from SiteMinder or which we deliver will be free of malware.
11.3 Customer undertakings
The Customer acknowledges and agrees:
- SiteMinder Software is Confidential Information of SiteMinder and the Customer must not use or disclose any Confidential Information without SiteMinder’s prior written consent;
- it will not attempt to assign, transfer, lease or rent the SiteMinder Software to any third party;
- it will not attempt to modify or create any derivative work of the SiteMinder Software;
- it will not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the SiteMinder Software;
- it will not reverse assemble, disassemble, reverse engineer or otherwise attempt to derive source code, the underlying ideas, algorithms, structure or organisation of the SiteMinder Software; and
- it will indemnify and hold SiteMinder harmless from all claims of whatever nature and howsoever arising made by any third party arising from any improper, unlawful or unauthorised use or dealing by the Customer or the End Users with the SiteMinder Software.
11.4 Licence to use Hotel Data
The Customer grants SiteMinder the right to use its Hotel Data.
12. Third Party Software
12.1 Third Party EULAs
By executing this Agreement or by otherwise accessing and using Third Party Software, the Customer acknowledges and agrees that it has read and agrees to be bound by the terms of each Third Party EULA which contain the terms and conditions which apply to the use by the Customer of the Third Party Software. The Customer acknowledges and agrees that if the EULA is terminated, SiteMinder may terminate the relevant Service without notice.
12.2 Customer Obligations
Without limiting clause 12.1, the Customer acknowledges and agrees that:
- the Third Party Software Licensor retains all rights, title and interest (including Intellectual Property Rights) in and to any Third Party Software;
- the Third Party Software is Confidential Information of the Third Party Software Licensor and the Customer must not use or disclose any Confidential Information without SiteMinder’s or the Third Party Software Licensor’s prior written consent;
- it will not attempt to assign, transfer, lease or rent the Third Party Software to any third party;
- it will not attempt to modify or create any derivative work of the Third Party Software;
- it will not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Third Party Software;
- it will not reverse assemble, disassemble, reverse engineer or otherwise attempt to derive source code, the underlying ideas, algorithms, structure or organisation of the Third Party Software; and
- it will indemnify and hold SiteMinder harmless from all claims of whatever nature and howsoever arising made by any Third Party Software Licensor arising from:
- any breach of this Agreement or any agreement or licence entered between the Customer and the Third Party Software Licensor or between the End Users and the Third Party Software Licensor; or
- any improper, unlawful or unauthorised use or dealing by the Customer or the End Users with the Third Party Software.
13.1 Term and termination
This Agreement remains in force for the duration of the Term unless earlier terminated in accordance with this clause 13.
Either party may terminate this Agreement:
- if the other party has committed a material breach of this Agreement and either:
- the breach is not remedied within 14 days of the date written notice of the breach is served on the breaching party; or
- the breach is not capable of remedy.
For the purposes of this clause 13.2(a) a failure to pay any amount on the due date for payment is a material breach.
- if the other party suffers an Insolvency Event;
- in accordance with clause 14.2, if a Force Majeure Event occurs;
- at any time by giving the other party 30 day’s written notice.
13.3 SiteMinder Termination
SiteMinder may terminate this Agreement immediately:
- if a Third Party Licensor terminates any required Third Party EULA as a result of breach by the Customer; or
- under clause 3.6 for breach of any licensing condition.
13.4 Failure to pay
In addition to the right to terminate this Agreement under clause 13.2(a), if the Customer fails to make a payment due under this Agreement when called upon to do so, SiteMinder may do any one or more of the following either instead of, or in addition to, terminating the Agreement:
- charge the Customer interest on the overdue amount from the due date for payment up to the date of actual payment at the Interest Rate;
- suspend the provision of the Services until all amounts due have been paid (including any interest);
- charge and invoice the Customer for the Termination Fee under clause 13.4;
- use or disclose any Personal Information collected and recorded in relation to the Customer to a third party to assist SiteMinder in the process of debt recovery.
13.5 Actions on termination
On termination of this Agreement:
- all unpaid sums owing by each party will immediately become due and payable to the other party;
- in addition to any other rights it may have, SiteMinder may invoice the Customer in respect of any Services provided prior to the date of termination which have not been invoiced;
- the Customer must immediately return to SiteMinder all Confidential Information of SiteMinder, all access codes and keys of any type and any other materials in the Customer’s possession relating to SiteMinder Products or Services.
14. Force Majeure
14.1 No liability
Where any failure or delay by a party (Affected Party) in the performance of its obligations (excluding payment obligations) under this Agreement is caused, directly or indirectly, by a Force Majeure Event:
- the Affected Party must as soon as practicable give the other party written notice of that fact;
- the Affected Party is not liable for that failure or delay; and
- the Affected Party’s obligations under this Agreement is suspended, to the extent to which they are affected by the relevant Force Majeure Event, for the duration of the Force Majeure Event.
14.2 Termination for Force Majeure Event
If the Force Majeure Event continues for more than 30 consecutive days and while it continues, either party may terminate this Agreement by giving written notice to the other.
15. Limitation of liability
15.1 No Consequential Loss
Unless expressly stated to the contrary in this Agreement, neither party is liable to the other for any Consequential Loss however caused in connection with or related to this Agreement or the otherwise in respect of the Services.
15.2 No implied terms
All terms, conditions or warranties which may be implied into this Agreement are excluded to the fullest extent permitted by law.
15.3 Resupply of Services
Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or 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 SiteMinder, to one or more of the following:
- if the breach relates to goods:
- the replacement of the goods or the supply of equivalent goods;
- the repair of such goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; and
- if the breach relates to services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
15.4 Limitation of liability
- SiteMinder’s total aggregate liability in respect of all claims made under this Agreement (including in respect of any claims in tort or negligence) is limited to the total Fees paid by the Customer in the preceding 12 months.
- The limitations of liability in this clause do not apply to any liability arising as a result of the death or personal injury of a person, or damage to personal property, caused in each case by SiteMinder or its employees.
SiteMinder indemnifies and will and hold the Customer and its Related Bodies Corporate, directors, officers, employees and agents harmless from and against all losses, damages, liabilities, claims and expenses incurred (including but not limited to reasonable legal costs and defence or settlement costs) arising as a result of any claim that the SiteMinder Software, or the Customer’s use of the SiteMinder Software, infringes, or allegedly infringes, the Intellectual Property Rights of a third party (Indemnity Claim).
SiteMinder has no liability in respect of an Indemnity Claim under clause 16.1 unless the Customer complies with the following conditions:
- as soon as reasonably practicable after becoming aware of an Indemnity Claim and in any event within 5 Business Days, the Customer must notify SiteMinder in writing, providing details of the Indemnity Claim;
- the Customer must make no admission of liability;
- the Customer must assign absolutely to SiteMinder the right to defend or compromise any claim, acting in its absolute discretion.
17.1 Dispute resolution prior to litigation
The parties must exhaust the following provisions before initiating any legal proceedings in court.
- When a dispute arises, the disputing party must give a notice in writing to the other party setting out in reasonable detail the nature of the dispute.
- 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.
- If senior managers of the parties have not resolved any dispute within 20 Business Days of notification of the dispute, the dispute must be escalated to the CEO of each party for resolution.
- If the CEOs of the parties fail to resolve the dispute within a further 20 Business Days of notification of the dispute, either party may take such additional action as it deems necessary to resolve the dispute, including initiating legal proceedings.
17.2 Interlocutory relief
Nothing in this clause 17 prevents any party from seeking urgent interlocutory relief from a court at any time.
18. Additional Resupply Terms
This clause 18 applies only to Customers who resupply Products or Services.
18.2 End Users
- The Customer represents and warrants that it has the experience, capacity and resources to carry out its obligations under this Agreement, including providing required support to End Users with a high level or professionalism and in a timely and efficient manner.
- The Customer must:
- only use the Products for its own internal business use or to supply services to End Users using in whole or in part, the Services and not mix, combine or use any other services or products in combination with the Products;
- ensure that it has obtained consent from the End User:
- to disclose the End User Details to SiteMinder and any relevant supplier; and
- for SiteMinder and any relevant supplier to use the End User Details to the extent necessary or desirable in connection with the supply of the Products;
- provide and manage all services provided to an End User including billing and collection of payments;
- exclusively manage the relationship between the Customer and its End Users including (without limitation) providing technical support to the End Users without the involvement of SiteMinder, and expressly ensuring that End Users do not contact SiteMinder;
- maintain facilities and staff sufficient to provide the support services to the End Users immediately notify SiteMinder of any defect in any of the Products of which it becomes aware;
- comply and take reasonable steps to ensure that all of its personnel comply at all times with any current operations manual issued by SiteMinder and any other reasonable directions given by SiteMinder from time to time in relation to the promotion, sale and use of the Products;
- bring SiteMinder’s reputation or brand into disrepute; or
- compromise the integrity or security of the SiteMinder Infrastructure or SiteMinder Software.
18.3 Customer Acknowledgment
- must not make any representation or give any warranty in relation to any Service that is inconsistent with written materials supplied by SiteMinder for that purpose other than as expressly authorised in writing by SiteMinder;
- acknowledges that the supply of Services to the Customer under this Agreement is non-exclusive.
18.4 End User liability
- The Customer is solely liable for any dispute raised by any End Users in relation to the provision of any Products or Services by the Customer to those End Users, including in relation to any service level breach. Other than as expressly provided in this Agreement, SiteMinder disclaims any liability which may arise either on the part of the Customer or an End User as a result of the use of a Product or Service by an End User or any related or ancillary claim.
- The Customer indemnifies SiteMinder in respect of all losses, damages, liability, claims and expenses incurred (including but not limited to reasonable legal costs and defence or settlement costs) arising as a result of any claim or demand by any persons relating to the resupply of the Services to End Users, including a claim or demand made against SiteMinder by an End User.
18.5 Branding and use of Name
The Customer must not use SiteMinder’s logo or refer to SiteMinder except with SiteMinder’s prior written consent in accordance with any directions or guidelines provided by SiteMinder.
- The Customer must take out and maintain valid and enforceable insurance policies with reputable insurers covering:
- public liability insurance for not less than $10 million per event and unlimited in aggregate; and
- professional indemnity insurance for not less than $10 million per event and in aggregate.
- The Customer must provide to SiteMinder upon SiteMinder’s request, certificates of currency from its insurers certifying that the Customer complies with the requirements of this clause.
19.1 No assignment
Neither party may assign, charge or deal with any its rights and obligations under this Agreement or attempt or purport to do so, without the prior written consent of the other party, which must not be unreasonably withheld or delayed.
19.2 Change in Control
If a change in Control occurs in respect of the Customer or the Customer sells a property which is receiving Services under this Agreement, SiteMinder may terminate the Agreement, or the provision of any Service, at any time without notice. If the Customer wishes to transfer the Agreement to a new owner of its business or property, it must make a request in writing to SiteMinder to do so. The Customer remains liable under this Agreement until SiteMinder agrees in writing to such a transfer.
- A notice or other communication required or permitted to be given by one party to another must be in writing and:
- delivered personally;
- sent by pre-paid mail to the address of the addressee specified in this Agreement;
- sent by facsimile transmission to the facsimile number of the addressee with acknowledgment of receipt from the facsimile machine of the addressee; or
- sent by email to an email address previously used or advised by the other party.
- A notice or other communication is taken to have been given:
- If delivered personally, immediately upon delivery;
- if mailed, on the second Business Day after posting;
- if sent by facsimile before 4pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt; or
- if emailed, on the date sent, unless the recipient is able to demonstrate that the email failed to be delivered.
- A party may change its address for service by giving notice of that change in writing to the other parties.
- The parties’ respective contact details for notification under this Agreement are as set out in the Parties section above.
19.4 Governing law and jurisdiction
- Where the SiteMinder counterparty is Online Ventures Pty Ltd, this Agreement is governed by the laws of New South Wales, Australia and each party irrevocably submits to the nonexclusive jurisdiction of the courts of New South Wales.
- Where the SiteMinder counterparty is SiteMinder Distribution Limited, this Agreement is governed by the laws of England & Wales and each party irrevocably submits to the nonexclusive jurisdiction of the courts of England & Wales.
- Where the SiteMinder counterparty is SiteMinder Hospitality Corporation, this Agreement is governed by the laws of the state of Texas and each party irrevocably submits to the nonexclusive jurisdiction of the courts of Texas.
19.5 Further assurance
Each party will from time to time do all things (including executing all documents) necessary or desirable to give full effect to this Agreement. Each party acknowledges that it has obtained legal advice, or had the opportunity to obtain legal advice, in connection with this Agreement.
Except to the extent expressly provided in this Agreement, this Agreement may not be amended or varied except in writing signed by both parties.
19.7 Counterparts and facsimile signatures
- This Agreement may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
- The transmission by a party:
- by email, fax or other electronic means of an executed copy of this Agreement; or
- the electronic execution and transmission by any generally accepted and secure means of affixing electronic signatures,
will be deemed proof of signature of the original for the purposes of constituting a binding agreement between the parties, and the signed copy or electronic copy so transmitted will be deemed the original for the purposes of this Agreement.
Each attorney and any other individual executing this 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.
19.9 Joint and Several liability
If the Customer enters this Agreement on behalf of more than one party, such that multiple parties receive Services under this Agreement, each party shall be jointly and severally liable in respect of all Services so provided.
19.10 Whole agreement
In relation to the subject matter of this Agreement:
- these terms and conditions, any relevant Product Schedules and Sales Orders are together taken to be the whole agreement between the parties; and
- supersede all oral and written communications by or on behalf of any of the parties in relation to the subject matter of this Agreement.
9.11 No reliance on warranties and representations
In entering into this Agreement, each party acknowledges 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 stated in this Agreement or relevant Product Schedule or Sales Order; and
- it has relied entirely on its own enquiries in relation to the subject matter of this Agreement.
- Subject to any provision to the contrary, this Agreement will enure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but will not enure to the benefit of any other persons.
- The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of this Agreement will remain in full force and effect following the expiration of this Agreement.
- Each indemnity in this Agreement survives the expiry or termination of this document.
If any part of this Agreement is legally unenforceable, this Agreement does not include it. The remainder of this Agreement continues in full force.
19.14 No merger
Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that SiteMinder may have against the Customer or any other person at any time.
19.15 Consents and approvals
- Where this Agreement gives SiteMinder a right or power to consent or approve in relation to a matter under this Agreement, SiteMinder may withhold any consent or approval or give consent or approval conditionally or unconditionally and in its absolute discretion. The party seeking consent or approval must comply with any conditions SiteMinder imposes on its consent or approval.
- The Customer warrants it has and will maintain the power and authority and has obtained and will comply with all necessary licenses and consents, necessary for it to enter into this Agreement and obtain and utilise the Services.
The parties agree that this Agreement does not create any relationship of partnership or employment, franchise, joint venture or agency and that SiteMinder is an independent contractor.