Terms & ConditionsThese terms and conditions apply to all Products and Services supplied by SiteMinder unless a separate user agreement applies. By completing and submitting a Registration Form to SiteMinder, clicking “I Agree”, or using a SiteMinder Product, you the “Customer” acknowledge that you have read and agree to the following terms and conditions.
These terms and conditions have been translated into French, Italian, Spanish, German, Portuguese and Bahasa for reference only.
This English version constitutes the binding agreement between you and SiteMinder to the exclusion of all other versions and all negotiations and disputes regarding the terms and conditions must be settled with regard to this version.
1. Definitions and Interpretation
1.1 DefinitionsIn 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.
Billing Commencement Date means the date following the last date of the Trial Period.
Booking Sites means websites or applications through which a potential Guest 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.
Control in relation to an entity means the capacity to determine the outcome of decisions about the entity’s financial or operating policies.
Consequential Loss means:
- loss of revenue, profits or savings (actual or anticipated);
- loss of contracts or opportunities;
- 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; and
- any indirect, special, economic, incidental or consequential loss or damage, howsoever arising, whether based in contract (including under any indemnity), in tort (including negligence), in equity, under the provisions of any law or otherwise.
Customer Users means officers, employees, agents, contractors or representatives of the Customer.
Data Protection Requirements means any legislation, regulation, statute or order, which may apply from time to time, relating to the collection, storage or use of Personal Information including (without limitation) the Australian Privacy Act 1988 (Cth), the Australian Privacy Principles, the UK Data Protection Act 2018, the European Union General Data Protection Regulation, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Data Protection (Processing of Sensitive Personal Data) Order 2000.
Effective Date means the date of acceptance of these terms and conditions.
Fault means any fault which renders a Product and/or Service 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 anything which prevents a party from performing, or delays the performance of, any of its obligations under this Agreement and is beyond the control of the affected party, including (without limitation):
- a force of nature (e.g. fire, storm or explosion) or act of God;
- any strike, lockout, industrial action, war, sabotage, riot, act of terrorism, denial of service attack, insurrection, civil commotion, national emergency, epidemic, quarantine, radiation or radioactive contamination;
- any action or inaction by a Government Agency;
- a change in law; or
- 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).
Guest means a guest of the Property.
Hotel Data means all data relating to the Property, including (without limitation) room rates, room types, room availability, rate plans, restrictions, occupancy, Guests, reservations, images and content.
Insolvency Event means, in relation to a party, where:
- a receiver, manager, trustee, administrator, other controller or similar official is appointed over any of the assets or undertaking of the party;
- the party suspends payment of its debts;
- the party is unable to pay its debts when they are due;
- the party enters into or resolves to enter into any arrangement, composition or compromise with a creditor;
- the party ceases to carry on business;
- any action is taken to appoint an administrator;
- an application, order or action is made / taken for the winding up or dissolution of the party, otherwise than for the purpose of an amalgamation or reconstruction; or
- a party is presumed to be insolvent under any applicable statute, or threatens to do any of (a) – (g).
- 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).
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 Data Protection Requirements.
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 Product, as updated from time to time and available on the Website.
Property means the building, dwelling or location from which the Customer provides accommodation to Guests.
Registration Form means the application form completed by a Customer to commence a free trial of a Product.
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 communication between SiteMinder and the Customer which details the Products the Customer has ordered.
Sales Tax means any sales tax, value added tax (VAT), goods and services tax (GST) or similar tax in any applicable jurisdiction.
Service means 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 systems; and
- the preparation, loading, uploading or provision of software, data, text, images, sounds, videos and other content.
- 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; and
- for any other Customer – Online Ventures Pty Ltd (a company incorporated in Australia, ACN 121 931 744) of 88 Cumberland Street, The Rocks, NSW 2000, Australia.
SiteMinder Software means all software in the Products and SiteMinder Infrastructure.
Trial Period means an initial period of 30 days commencing on the issue of a username and password to the Customer.
Website means http://www.xianyu17.icu/legal/.
1.2 InterpretationHeadings 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 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 a party includes the party’s successors, permitted assigns and Related Bodies Corporate;
- 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;
- a reference to conduct includes, without limitation, any omission, statement or undertaking, whether or not in writing;
- a reference to parties to this Agreement includes any person who executes a deed of accession to it;
- 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
- if an obligation must be performed by 2 or more persons, it binds them jointly and individually.
2. Application of agreementThis Agreement commences on the Effective Date and 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 12 (Term).
3. Supply of Products
3.1 SupplySiteMinder will supply the Products specified in the Sales Order Form, subject to the Customer for the duration of the Term in accordance with this Agreement.
3.2 Conditions to access and useAccess to the Products and Services is granted subject to the following conditions:
- they may only be used by the Customer Users;
- they must not be used to provide, in whole or in part, any service or functionality which is similar to the Products or competes with SiteMinder’s business;
- the Customer must not reproduce or copy the SiteMinder Software in whole or in part except for backup and archive purposes; and
- they must not be used 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 Products 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;
- modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the SiteMinder Software; or
- for any benchmarking or competitive purpose or to develop a similar or competitive product.
3.3 WarrantiesSiteMinder represents and warrants that:
- the Products 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 Products;
- each Product will comply with the relevant Product Schedule; and
- it is PCI DSS compliant and will remain compliant for the duration of this Agreement.
3.4 Warranty limitation
- The warranties provided in clause 3.4 are exhaustive and the Customer acknowledges and agrees that Products and Services are provided “as is” without any other warranty or condition, express, implied or statutory to the maximum extent permitted by law. SiteMinder specifically disclaims 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 the Products, SiteMinder Software and Services, and operation of the SiteMinder Software and the Website may be interfered with by numerous factors outside of SiteMinder’s control. The Customer is responsible for implementing appropriate security processes, systems and procedures to protect itself from the download of any virus, worms, Trojan horses or other code that has contaminating or destructive qualities.
3.5 Registration Form
- Prior to commencing the use or trial of a Product, the Customer must complete and submit a Registration Form to SiteMinder.
- By lodging the Registration Form, the Customer acknowledges that it has read and agrees to comply with these terms and conditions.
3.6 Application review and verification of identityThe Customer acknowledges that when assessing the application, SiteMinder may request additional information to verify the Customer’s identity, size and scale, either from the Customer or a third party (e.g. a credit agency). The Customer agrees to provide any information reasonably required for such purposes and authorises SiteMinder to contact any such third party to obtain relevant information.
3.7 Username and password
- SiteMinder will issue the Customer with a username and password to access the Products. The Customer must not disclose the username or password to any person (other than Customer Users) without the authorisation of SiteMinder.
- 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 Products or SiteMinder Infrastructure by a:
- Customer User;
- person authorised by the Customer or a Customer User to use the username and password; or
- person who has used the username and password as a result of the Customer’s failure to maintain adequate security.
3.8 Storage of credit card data
- The Customer must not store credit card data, including name, number, expiry details or CVV in any part of a Product or database which is not specifically designed for the collection or storage of credit card information, e.g. a free text field, where the data is stored unencrypted and freely accessible.
- The Customer indemnifies SiteMinder in respect of any loss or damage suffered as a result of, or in connection with, a failure to comply with this clause 3.8.
3.9 Ownership of Property
- Where the Customer is the manager of the Property on behalf of a Property owner, the Customer represents and warrants to SiteMinder that it is, and will remain for the duration of the Term, authorised by the Property owner to manage the Property and enter into this Agreement.
- SiteMinder may terminate this Agreement if the Customer’s authorisation is terminated by the Property owner for any reason.
- Written notice from the Property owner will be sufficient evidence of such termination.
3.10 Suspension or termination for breachSiteMinder may suspend or terminate access to any Products and Services in the event of any breach or suspected breach of clause 3.
3.11 Access to Hotel DataThe Customer acknowledges and agrees that if there is a dispute as to the ownership of the Customer’s business or the Property, in addition to the right to suspend or terminate access to any Products under clause 3.10, SiteMinder may, in its sole discretion, allow the Property owner to download Hotel Data held on behalf of the Customer.
4. Fees and payment
4.1 FeesThe Customer must pay the Fees for the duration of the Term.
4.2 Trial Period and commencement of billing
- SiteMinder must notify the Customer when the Tria Period begins.
- 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 Products or Services after the end of the Trial Period, it must terminate this Agreement by providing written notice to SiteMinder during the Trial Period.
- If the Customer does not wish to continue to use the Products or Services after the end of the Trial Period, it must terminate this Agreement by providing written notice to SiteMinder during the Trial Period.
4.3 Invoicing and paymentSiteMinder will invoice the Customer monthly in advance for Fees due under this Agreement. The Customer must pay the invoiced Fees within 30 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.
4.4 Disputed invoices
- If the Customer disputes any part of an invoice submitted by SiteMinder, the Customer must notify SiteMinder in writing within 15 days of receipt of the invoice of the reasons for disputing the invoice and pay the undisputed amount on or before the due date for payment. If the Customer does not notify SiteMinder within 15 days of receipt of the invoice, the Customer will be deemed to have accepted the invoice as accurate.
- 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.
4.5 Failure to payIf 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 in accordance with clause 12.1(a):
- charge the Customer default interest on the overdue amount from the due date for payment up to the date of actual payment at the Interest Rate;
- suspend access to the Products until all amounts due have been paid (including any interest); and
- charge the Customer an AU$150 reinstatement charge to reactivate any suspended account.
4.6 Sales Tax
- All Fees are exclusive of Sales Tax unless stated otherwise by SiteMinder in writing.
- If Sales Tax is applicable to any supply made by SiteMinder under this Agreement, SiteMinder may add to the Fees an amount equal to the applicable Sales Tax.
- The Customer agrees to pay SiteMinder such Sales Tax charges in the same manner and at the same time as the payment for the relevant Fees.
- SiteMinder will issue tax invoices to the Customer for the purposes of Sales Tax.
- 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.
4.7 Annual price increaseFees will increase by 5% annually following the initial Term.
5. Customer’s obligations
5.1 Use of Products and ServicesThe Customer must:
- maintain the necessary infrastructure to support the provision of the Products and Services;
- ensure that all information and content inputted or uploaded to the Products or SiteMinder Infrastructure is accurate and up to date;
- 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; and
- provide SiteMinder and its contractors, agents and employees with prompt access to the Customer Software Application and to the Customer’s personnel, equipment, data and information as is reasonably required for the purpose of delivering the Products.
5.2 Site contentThe 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 may perform scheduled and unscheduled maintenance or perform updates in relation to the SiteMinder Infrastructure or the Products from time to time.
- SiteMinder must use reasonable efforts to give the Customer notice before undertaking any scheduled maintenance and must 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, SiteMinder must 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 SiteMinderSiteMinder may without liability and with immediate effect suspend a Product or Service or access to the SiteMinder Infrastructure for as long as SiteMinder, acting reasonably, considers it necessary to comply with any law, protect any person, system or asset or equipment from harm, or enable authorised persons to attend to any emergency.
7.1 SupportThe SiteMinder support team will deal directly with the Customer’s centralised support function regarding basic configuration changes for the Property and otherwise will provide basic support to enquiries during the Customer’s local business hours.
7.2 Room mapping for the Channel ManagerThe 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 Faults to the SiteMinder support team without undue delay.
- Before reporting a Fault, the Customer should take all reasonable steps to ensure that the Fault is with the Product and not caused by any of the Customer Software Applications or any Customer content or equipment.
- SiteMinder is not responsible for rectifying Faults where the Fault is with the Customer’s property management system (PMS) or the Booking Site.
- The Customer is responsible for repairing faults relating to any Customer Software Applications, content or equipment.
8.2 Charges for restorationThe Customer is liable for all costs incurred by SiteMinder in restoring a Product or Service where the Fault arises as a result of:
- defects in Customer Software Applications, equipment or content; and
- any defects in the Customer’s PMS.
9. Personal Information and privacy
9.1 Personal Data
- For the purposes of this clause 9, “Personal Data” means the Personal Information of a Customer, its employees and Guests.
- If Personal Data is collected, used, handled, processed and/or transferred under this Agreement by SiteMinder on behalf of the Customer, the Customer is the data controller and SiteMinder is the data processor. The purpose of processing Personal Data by SiteMinder is the performance of Services pursuant to this Agreement.
- If Personal Data is collected, used, handled, processed and/or transferred under this Agreement, each party must comply with the applicable Data Protection Requirements and the terms of this Agreement.
9.2 SiteMinder’s obligationsSiteMinder must:
- process Personal Data only in accordance with the Customer’s reasonable and lawful written instructions from time to time, for the purposes of performing its obligations under this Agreement and for no other purpose except as otherwise stated in clause 9.4 of this Agreement or as required by law;
- 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;
- ensure that persons authorised by it to process the Personal Data are under confidentiality obligations in respect of the Personal Data;
- if requested, at the Customer’s cost, provide reasonable assistance to the Customer in complying with the rights of data subjects and with the Customer’s statutory obligations relating to data security, data breach notification, data protection impact assessments and related prior consultation procedures, taking into account the nature of processing and the information available to SiteMinder;
- 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;
- save only to the extent required by law, after expiry or termination of this Contract, in accordance with clause 12.5, return to the Customer or destroy all Personal Data in the possession or control of SiteMinder;
- make available to the Customer such information as is reasonably necessary to demonstrate SiteMinder’s compliance with this clause 9;
- at the Customer’s cost, allow the Customer to appoint an independent auditor to audit and inspect SiteMinder’s compliance with this clause 9. Such audit may occur once per calendar year, unless Data Protection Requirements applicable to the Customer require more frequent audit. Such an audit shall be carried out during business hours and the Customer must provide at least 30 working 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 working days’ notice of any such audit;
- not transfer the Personal Data to a country outside the European Union without the authorisation of the Customer or as otherwise provided for in this 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
- will have the general ability to appoint subcontractors who may process Personal Data in order to perform SiteMinder’s obligations under this Agreement provided that the contracts with such subcontractors shall incorporate terms which are substantially the same as those set out in this clause 9 and which encompass the obligations referred to in Article 28(3) of the European Union General Data Protection Regulation. SiteMinder will notify the Customer of such subcontractors if and when they are appointed or replaced.
9.3 Customer’s obligations
- The Customer warrants, represents and undertakes that all instructions given to SiteMinder by the Customer in respect of Personal Data will, at all times, be in accordance with the applicable Data Protection Requirements and will provide such evidence as SiteMinder requests to demonstrate that such instructions are in accordance with the applicable Data Protection Requirements.
- The Customer must ensure that any Personal Data it collects is collected and supplied to SiteMinder in a manner compliant with the Data Protection Requirements including by providing all notices and obtaining all consents required under the Data Protection Requirements in order for SiteMinder to process Personal Data fairly and lawfully in connection with the Services and in accordance with this Agreement and must immediately notify SiteMinder on becoming aware of Personal Data becoming inaccurate.
- If the Customer requests SiteMinder to transfer the Personal Data outside the European Union, the Customer must ensure that appropriate safeguards are in place to permit the transfer of the Personal Data outside the European Union.
9.4 Use and disclosure of Personal InformationThe Customer acknowledges that the collection, use and storage of Personal Information of the Customer, Customer Users and Guests is necessary to enable SiteMinder to perform its obligations under this Agreement and 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 the Products and Services to the Customer; and
- transferring data to and from Booking Sites; and
- 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; and
- to any third party as required by law.
10.1 Confidentiality obligationsEach 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 sufferedThe Recipient acknowledges and agrees that the Confidential Information is, by virtue of its special nature, valuable property of the Disclosing Party and that the Disclosing Party may suffer damage or loss by any disclosure by the Recipient of the Confidential Information.
10.3 Non-disclosureThe 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
- upon the Disclosing Party’s request or expiry or termination of this Agreement, deliver and surrender to the Disclosing Party all records of Confidential Information held by it.
10.4 Required disclosureThe 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 Permitted disclosureEach 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 this Agreement.
10.6 ExceptionsThe obligations under this clause 10 shall not apply to Confidential Information which (whether before or after execution of this Agreement):
- is publicly known and made generally available in the public domain through no breach of this Agreement by the Recipient;
- 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;
- 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
- is independently developed by the Recipient without use or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Recipient’s possession.
11. Intellectual Property Rights
11.1 Ownership of Intellectual Property Rights
- 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 the ownership of the Intellectual Property Rights of one party to another.
- Nothing in this Agreement confers on the Customer any rights, title or interest in, or licence to use, SiteMinder’s Intellectual Property Rights.
11.2 SiteMinder SoftwareThe Customer acknowledges and agree that:
- 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, trade mark 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 access or derive the 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, made by any third party arising from or in connection with any improper, unlawful or unauthorised use of or dealing with the SiteMinder Software, by the Customer.
11.3 Licence to use Hotel DataThe 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 readily ascertainable.
12.1 TerminationEither 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 12.1(a), a failure to pay any amount on the due date for payment is a material breach, and a request from SiteMinder’s billing team to make the payment after the due date constitutes notice served under subclause (i));
- immediately if the other party suffers an Insolvency Event;
- in accordance with clause 13.2 (Force Majeure Event); or
- at any time by giving the other party 30 days’ prior written notice.
12.2 SiteMinder TerminationSiteMinder may terminate this Agreement immediately if the Customer breaches any condition in clause 3.2.
12.3 Actions on terminationOn termination of this Agreement:
- the Customer must cease using the Products and any associated access codes or keys;
- SiteMinder may invoice the Customer in respect of any Products provided prior to the date of termination which have not been invoiced; and
- all unpaid Fees owing to SiteMinder will become immediately due and payable.
12.4 Retrieval of Hotel DataIf the Customer wants to retain any Hotel Data stored in the Products it must be downloaded prior to termination of the Agreement or requested from SiteMinder within 30 days thereafter. The Customer acknowledges that after such time, SiteMinder will delete the Hotel Data.
13. Force Majeure
13.1 No liabilityWhere 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.
13.2 Termination for Force Majeure EventIf the Force Majeure Event continues for more than 30 consecutive days, while it continues, either party may terminate this Agreement by giving written notice to the other.
14. Limitation of liability
14.1 No Consequential LossUnless 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 Products.
14.2 Resupply of ProductsWhere 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 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:
- if the breach relates to Products:
- the replacement of the Products or the supply of equivalent Products;
- the repair of such Products;
- the payment of the cost of replacing the Products or of acquiring equivalent Products; or
- the payment of the cost of having the Products 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.
14.3 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 the indemnity in clause 15, or in relation to any liability arising as a result of:
- the death or personal injury of a person, caused in each case by SiteMinder or its employees; or
- SiteMinder’s fraudulent or criminal actions.
15.1 IndemnitySiteMinder indemnifies and will hold the Customer harmless against any claim that the Products, or the Customer’s use of the Products in accordance with this Agreement, infringes the Intellectual Property Rights of a third party (Indemnity Claim).
15.2 NotificationSiteMinder has no liability in respect of an Indemnity Claim under clause 15.1 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; and
- the Customer must fully assign to SiteMinder the right to defend or compromise any claim, acting in its absolute discretion.
16.1 Dispute resolution prior to litigation
- The parties must exhaust the following provisions before initiating any legal proceedings (which must be conducted in English).
- 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.
- 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, either party may take such additional action as it deems necessary to resolve the dispute, including initiating legal proceedings.
16.2 Interlocutory reliefNothing in this clause 16 prevents a party from seeking urgent interlocutory relief from a court at any time.
- The parties must each take out and maintain valid and enforceable insurance policies in such amounts and covering such risks as may be customary for businesses of their size.
- Each party, at the other’s request, must provide to the other party a certificate of currency from its insurer certifying that it complies with the requirements of this clause 17.
17.1 Interlocutory reliefNothing in this clause 17 prevents any party from seeking urgent interlocutory relief from a court at any time.
18.1 No assignmentNeither party may assign, charge or deal with any of 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.
18.2 Change in ControlIf a change in Control occurs in respect of the Customer and the new controller is (a) a competitor to SiteMinder or (b) poses a material threat to SiteMinder’s business or the Customer sells the Property, SiteMinder may terminate this Agreement and the supply of any Products or Services by providing prior written notice to the Customer.
- 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; and
- 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; and
- if emailed, on the date sent, unless the recipient is able to demonstrate that the email failed to be delivered.
- The parties’ respective contact details for notification under this Agreement are as set out in the Registration Form for the Customer.
- A party may change its address for service by giving written notice to the other parties.
18.4 Governing law and jurisdictionThis Agreement is governed by the laws of, and each party submits to the exclusive jurisdiction of the courts in:
- London if the Customer is principally located in Europe, the Middle East or Africa;
- Dallas, Texas if the Customer is principally located in the USA, Canada, Central or South America; and
- New South Wales, Australia if the Customer is principally located anywhere else in the world.
18.5 Further assuranceEach party must, 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 had the opportunity to obtain legal advice in connection with this Agreement.
18.6 VariationThis Agreement may not be amended or varied except by written agreement.
18.7 Counterparts and facsimile signatures
- This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which taken together will 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,
18.8 AttorneysEach 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.
18.9 Whole agreementThis Agreement:
- is the whole agreement between the parties; and
- supersedes all oral and written communications by or on behalf of any of the parties in relation to the subject matter of this Agreement.
18.10 No reliance on warranties and representationsIn 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; and
- it has relied entirely on its own enquiries in relation to the subject matter of this Agreement.