Effective Date: [December 1, 2020]
These TMC Alliance and Hosted Reseller Terms and Conditions (the "Terms and Conditions") apply to any agreement entered into by and between a Partner and Deem that incorporates these Terms and Conditions by reference. By executing an agreement with Deem that incorporates these Terms and Conditions or by registering for products or services from Deem that incorporate these Terms and Conditions, you agree to be bound by and accept these Terms and Conditions, as modified by any such agreement. On the other hand, the execution of an agreement with Deem for products and services that do not include the full scope of product and services described in or covered by these Terms and Conditions does not provide a Partner with rights to access, use or resell such out of scope products and services. To obtain rights to access, use or resell such out of scope products and services, Partner must enter into an agreement with Deem for such out of scope products and services. These Terms and Conditions apply only if and to the extent that Partner has entered into an agreement with Deem that incorporates these Terms and Conditions by reference.
As used in these Terms and Conditions, the following terms shall have the following meanings:
"Active User" shall mean each unique End User account that uses the DBSS to book, modify or cancel a Travel Transaction (including via TravelFusion, Southwest or online automated ticket exchange functionality), airport parking or ground transportation, or to book a package shipment.
"Annual Subscription Fees" shall mean the fees charged annually for use of DBSS by Clients as set forth in the applicable SOW.
"Client" means a third party who is a recipient of the Hosted Services solely for such Client's own internal business purposes and not for distribution, further sublicensing, or other commercial reselling purposes.
"Client Agreement" means a separate agreement between Partner and a Client for the provision by Partner to the Client of Hosted Services.
"Customer(s)" means a third party licensee of DBSS directly under a Customer Agreement and approved by Deem for such purposes.
"Customer Agreement" means a written agreement between Deem and a Customer whereby the Customer has been granted the non-exclusive right to use DBSS solely for such Customer's internal business purposes, as set out in the applicable SOW.
"DBSS" means the combination of the Deem platform and the employee business services application offering, including any Deem provided software installed on an End User's mobile devices (hereinafter, "Licensed Programs"), and any additional applications and Premium Services which may be offered by Deem in the future and ordered by Partner or a Client. Deem may provide Updates and Upgrades for DBSS at any time, as provided for in Section 3 of Exhibit A - Deem Technical Support Policies.
"Deem Services" means any services provided to Partner hereunder, as may be identified in an applicable Statement of Work.
"End User" means any Client employee or independent contractor who is enrolled by a Client to use DBSS.
"Fees" means the Annual Subscription Fees and any other fees which become due under these Terms and Conditions and the applicable SOW.
"Hosted Services" means Partner's provision of the DBSS master domain(s) assigned to Partner for Clients' access and use in accordance with these Terms and Conditions. DBSS may only be made available to the Clients during a set term and may only be accessed by the Client through a sub-domain of Partner's master domain.
"Intellectual Property Rights" means all patents, patent rights, patent applications, copyrights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights, as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
"Lead Registration Form" means a separate document by which Partner notifies Deem of potential Clients as more fully set forth in Article 3 below.
"PNR" means a record in a computer reservation system that contains the itinerary for a passenger or the reservation for an individual for things such as hotel accommodations or car rental.
"Premium Service" means any current or future service made available as an offering priced and sold separately as part of DBSS. Clients shall only be entitled to receive those Premium Services expressly outlined in the applicable SOW or a separate document, governed by these Terms and Conditions.
"Statement of Work" or "SOW" means a separate document, governed by these Terms and Conditions, by which Partner orders Deem Services.
"Technical Support" means DBSS support provided under Deem's technical support policies in effect on the date DBSS is ordered. Deem's current Technical Support policies are attached hereto as Exhibit A.
"Travel Transaction" means any booking of air, car, or hotel that results in the creation of a PNR, and any change of booking.
2.1 Development, Marketing Support and Promotional License
Subject to the terms of these Terms and Conditions (including Partner's obligation to pay any Fees due), Deem grants Partner a nonexclusive, nontransferable license to use DBSS provided under these Terms and Conditions solely to provide prototype demonstrations and to have trained employees demonstrate DBSS to potential Clients.
2.2 Limitations on use; title
Partner shall not use or duplicate DBSS for any purpose other than as specified in these Terms and Conditions or make DBSS available to unauthorized third parties. Partner shall not make copies or make media translations of the applicable portions of DBSS, in whole or in part without Deem's prior written approval. Partner agrees that if it comes into possession of any source code for any Deem product it will immediately deliver all copies of such source code to Deem. Partner shall not: (a) use DBSS for its internal data processing or for processing customer data other than of Partner's Clients; (b) rent, electronically distribute, or timeshare DBSS or market DBSS by interactive cable, Internet, or remote processing services other than to potential Clients as expressly provided herein or otherwise distribute DBSS; or (c) cause or permit the reverse engineering, disassembly, or decompilation of DBSS. Deem shall retain all title, copyright, and other proprietary rights in DBSS and any modifications or translations thereof. Partner does not acquire any rights in DBSS other than those specified in these Terms and Conditions.
2.3 Marketing practices
In marketing DBSS, Partner shall:
(a) Not engage in any deceptive, misleading, illegal or unethical practices detrimental to Deem or to DBSS; or
(b) Not make any representations, warranties, or guarantees to prospective Clients concerning DBSS that are clearly inconsistent with or in addition to those made in these Terms and Conditions or by Deem.
(a) Subject to the terms and conditions of these Terms and Conditions (including Partner's obligation to pay any Fees due), during the term of these Terms and Conditions, Deem grants Partner a non-sublicensable, nonexclusive, nontransferable license to use DBSS solely to provide the Hosted Services during the Term strictly and exclusively for Clients pursuant to a Client Agreement. Partner shall have the right to allow such Clients to access and use DBSS provided: (i) Details are provided for each individual Client pursuant to Section 3.2 below; (ii) such Clients access and use DBSS only in accordance with the terms and conditions of these Terms and Conditions; (iii) in the case of providing the Hosted Services, Partner remains the licensee of said DBSS; (iv) each Client is obligated (i.e., pursuant to a Client Agreement) to protect Deem's proprietary rights in DBSS and Confidential Information in accordance with these Terms and Conditions; and (vi) such Client shall not use DBSS for any purpose outside the scope of this Section 2.4(a). Partner agrees that it shall not knowingly pursue Clients who have direct agreements with Deem to become Clients, it being understood that Partner may pursue such Clients for travel management services, excluding Hosted Services.
(b) Other than as stated in Section 2.4(a) Partner will not allow any third party to use DBSS under this license grant. Partner further agrees to use DBSS only in accordance with the documentation and in accordance with the obligations imposed by these Terms and Conditions. Partner shall perform the Hosted Services only in accordance with generally accepted professional standards for providing similar services. Partner hereby agrees that if it uses the "Open Enrollment" functionality for any Client, it will properly configure this to restrict such enrollment based upon email addresses specific to such Client's domain.
(c) Partner agrees to maintain the copyright, trademark, logos, and other notices that appear on DBSS on all associated media, screens, and copies thereof. Partner does not acquire any rights in DBSS other than as expressly specified in these Terms and Conditions. Partner shall not, and shall not allow any third party to, knowingly: (i) reverse engineer, decompile, disassemble or attempt to discover any source code or underlying ideas or algorithms of DBSS; (ii) use, provide, or allow others to use DBSS for the benefit of any third party except as expressly allowed herein; or (iii) reset or disable DBSS.
3.1 Technical Support provided to Partner will be provided under Deem's Technical Support policies attached hereto as Exhibit A. Deem will provide reasonable training services agreed to by the parties under the terms of these Terms and Conditions. Partner is responsible for providing all travel-related support, technical support, training and consultations to its Clients. In consideration of payment of the Fees, Partner shall have the right to use Deem Technical Support to provide Technical Support to Clients as further set forth in the Agreement. Any questions from Partner's Clients will be referred by Deem to Partner. For any on-site services requested or required by Partner, including implementation services, Partner shall reimburse Deem for actual, reasonable travel and out-of-pocket expenses incurred, not to exceed $1,000 without Partner's prior written permission (email sufficient).
3.2 Partner shall provide Deem with details for each new Client by providing all the required information by using the "domain cloning tool," accessed via the Partner's master domain, or through such other procedure as otherwise required by Deem's policies as they may be updated from time to time.
3.3 Partner will be responsible for any assistance needed to activate its Clients. If agreed in an applicable SOW, Partner may subcontract the services of Deem and such activation services shall be pursuant to these Terms and Conditions and shall be provided at the rates set forth in Deem's Price List in effect at the time such implementation services are ordered or as provided in the SOW.
4.1 Partner shall pay to Deem the Fees as set forth in the applicable SOW. Except as otherwise provided in such SOW, all Fees shall be non-cancelable and nonrefundable. Partner shall not be relieved of its obligation to pay Fees owed to Deem by the nonpayment of fees owed by any Client to Partner.
4.2 Deem Services are charged on a time and materials basis. Except as otherwise provided in an applicable SOW, all charges for Deem Services will be invoiced monthly as accrued and shall be due thirty (30) days from the date of invoice. Charges for Deem Services do not include out-of-pocket expenses such as travel, which will be invoiced separately and must be reimbursed by Partner, provided that Deem complies with Partner's travel and expense guidelines and policies, and has obtained pre-approval by Partner.
4.3 Except as otherwise set forth herein, all fees shall be due and payable net 30 days from receipt of invoice. All payments made shall be in United States Dollars. Partner will be responsible for and will reimburse and indemnify Deem for all taxes or similar charges (including, without limitation, penalties, interest, additions to tax and similar amounts), whether federal, state, local, foreign or otherwise, which are related to these Terms and Conditions or to payments made under these Terms and Conditions, other than taxes imposed on the net income of Deem (collectively, "Taxes").
5.1 Parties' obligations
Partner shall use commercially reasonable efforts to promote, market, and offer the Hosted Services to potential Clients. Each party will designate executive sponsors and field personnel to promote joint sales programs. Deem shall promote Partner as a preferred provider of travel and meetings management services and will provide appropriate references accordingly in applicable marketing materials, proposals and sales presentations relating to the fulfillment of online transactions as approved in advance by Partner.
Partner acknowledges that its timely provision of and access to office accommodations, facilities, equipment, assistance, cooperation, complete and accurate information and data from its officers, agents, and employees, and suitably configured computer products (collectively, "Cooperation") are essential to performance of any services and that Deem shall not be liable for any deficiency in performing Services if such deficiency results from Partner's failure to provide full Cooperation. For the avoidance of doubt, Deem shall not be responsible for project delays related to Partner staffing outages, late deliverables from Partner or similar and all specified fees will continue to be in effect during delays. If services are delayed, or Deem's cost of providing services is increased, as a result of Partner's failure to timely provide its Cooperation, Partner shall pay reasonable time and materials rates for Deem's increased costs in providing services or as otherwise specified in the applicable SOW.
5.2 Marketing obligations
The parties shall work in good faith towards issuing a joint press release announcing the relationship created by these Terms and Conditions within a reasonable period of time from the Effective Date. Each Party shall allow the other to review all announcements, press releases, marketing materials and product brochures pertaining to the other's products prior to their release to the public or the press, and shall incorporate all changes that the other may reasonably request to ensure correct usage of their trademarks and accuracy of content.
5.3 Partner responsibilities
Partner shall support Deem by performing, and Deem will use commercially reasonable efforts to enable Partner to perform, the following:
(a) Promptly participate in the general certification of DBSS, including a review of the system capabilities.
(b) Provide resources in the form of a project manager to assist in all facets of the deployment of DBSS at designated Client locations.
(c) Provide Pseudo City Code access to the GDS or an alternative distribution source on behalf of the Clients.
(d) Provide detailed Passenger Name Record requirements to Deem that would assist in configuring the Deem Travel PNR Editor.
(e) Provide any/all Queue configurations to Deem that would assist in the initial set-up to serve the Clients.
(f) Provide any/all special handling processes that would need to be identified during the implementations.
(g) Provide, as identified, data feeds to assist in the initial configuration as it relates to each Client's corporate policy, profiles, preferred vendors, etc.
(h) Assist in the initial post-configuration testing to ensure all aspects of the application are working in conjunction with agency and Client requirements.
(i) Provide access to its fulfillment support staff to ensure they can be trained in support of DBSS.
(j) Participate in the development of a press release describing the Deem TMC Program and Partner's involvement.
(k) Participate in the development of ongoing press releases, joint case studies, and/or white papers, involving success with Clients.
The term of These Terms and Conditions shall be coterminous with the Term provided on the applicable SOW between the parties.
7.2 Termination for breach
Each party may terminate these Terms and Conditions upon written notice if the other party materially breaches these Terms and Conditions and fails to correct the breach within thirty (30) days following written notice specifying the breach. Furthermore, each party may terminate these Terms and Conditions upon written notice if the other party ceases to conduct business (except for Force Majeure), becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to its liquidation or insolvency, which is not dismissed within ninety (90) days, or makes an assignment for the benefit or its creditors. Except as otherwise provided in these Terms and Conditions, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy.
7.3 Effect of termination
Upon expiration or termination of these Terms and Conditions, all of Partner's rights and licenses to use and market DBSS, and all other rights as set forth in these Terms and Conditions, shall cease immediately.
The termination of these Terms and Conditions shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve Partner's obligation to pay all Fees that have accrued as of the date of termination or that are owed by Partner hereunder. The parties' rights and obligations under Sections 2.2, 2.3, 2.4(c) and Articles 4, 7, 8, 9, 12 and 13 shall survive termination of these Terms and Conditions. Upon termination, and at Partner's cost, Partner shall cease using, and shall return or destroy all copies of the applicable portions of DBSS and related materials and certify to Deem within one (1) month after expiration or termination that Partner has destroyed or has returned to Deem all such applicable portions of DBSS and materials.
Upon the expiration or termination of these Terms and Conditions, all of Partner's licenses to use DBSS, and all other rights, services and licenses granted by Deem to Partner as set forth in these Terms and Conditions, shall cease immediately (except for those rights, licenses and obligations that are expressly stated to survive termination of these Terms and Conditions). Within ten (10) days from the date of any termination or expiration of the Agreement, whichever is later, each party shall provide the other with a signed written statement certifying that such party has not retained any copies of any documentation or any Confidential Information of the other party.
8.1 Deem represents, warrants and covenants to Partner that:
(a) it is and throughout the Term will remain the sole and exclusive legal and beneficial owner of the entire right, title and interest in and to DBSS, including all Intellectual Property Rights relating thereto;
(b) it has and throughout the Term will retain the unconditional and irrevocable right, power and authority to grant and perform the license hereunder;
(c) DBSS, and Partner's use thereof, is and throughout the Term will be free and clear of all encumbrances, liens and security interests of any kind;
(d) neither its grant of the license, nor the performance by or on behalf of Deem under these Terms and Conditions does or, to its knowledge will at any time: (i) conflict with or violate any applicable law; (ii) require the consent, approval or authorization of any governmental or regulatory authority or other third party; or (iii) require the provision of any payment or other consideration to any third party;
(e) use of the DBSS by Partner does not and will not: (i) infringe, misappropriate or otherwise violate any Intellectual Property Right or other right of any third party; or (ii) fail to comply with any applicable law; and
(f) there is no settled, pending or to its knowledge threatened litigation, claim or proceeding: (i) alleging that any use of DBSS does or would infringe, misappropriate or otherwise violate any copyright, patent, trade secret or other Intellectual Property Right of any third party; (ii) challenging Deem's ownership of, or right to use or license, DBSS, or alleging any adverse right, title or interest with respect thereto; or (iii) alleging the invalidity, misuse, unregistrability, unenforceability or noninfringement of any copyrights, trade secret rights or patent rights in DBSS.
Partner's sole and exclusive remedy and the entire liability and obligation of Deem with respect to the foregoing representations, warranties, and covenants shall be the indemnification obligations described in Article 12.
8.2 Deem further represents, warrants and covenants to Partner that:
(a) it will perform all Deem Services required under these Terms and Conditions in a timely, skillful, professional and workmanlike manner in accordance with commercially reasonable industry standards and practices for similar services, using personnel with the requisite skill, experience and qualifications, and will devote adequate resources to meet its obligations under these Terms and Conditions.Partner's sole and exclusive remedy and the entire liability and obligation of Deem with respect to the foregoing representations, warranties and covenants in Section 8.2(a) shall be the re-performance of the Deem Services.
8.3 Warranty disclaimer
EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, PARTNER ACKNOWLEDGES THAT DBSS IS PROVIDED 'AS IS' WITHOUT WARRANTY OF ANY KIND, AND DEEM EXPRESSLY DISCLAIMS TO THE EXTENT PERMITTED BY LAW ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY BY ANY TERRITORY OR JURISDICTION, WITH RESPECT TO DBSS OR SOFTWARE ASSOCIATED THEREWITH, OR THE DATA DERIVED FROM ANY SERVICES, AND ANY COMPONENTS THEREOF, AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT.
Partner acknowledges that the structure, organization and code of DBSS are proprietary to Deem and that Deem retains exclusive ownership of DBSS, Trademarks, Service marks and any other Intellectual Property Rights relating to DBSS. Partner will take reasonable measures to protect Deem's Intellectual Property Rights in DBSS, and Trademarks, including such assistance and measures as are reasonably requested by Deem from time to time. Except as provided herein, Partner is not granted any other Intellectual Property Rights, or any other rights, franchises or licenses, with respect to DBSS or Trademarks. Deem is not granted any Intellectual Property Rights by Partner hereunder, or any other rights, franchises or licenses, with respect to Partner or its Intellectual Property Rights.
Any Intellectual Property Rights associated with modifications, enhancements and derivative works of DBSS developed by Partner in connection with the license grants shall be owned by Deem, and therefore, Partner irrevocably assigns to Deem all right, title and interest worldwide in and to such Intellectual Property Rights. If Partner has any rights to such Intellectual Property Rights that cannot be assigned to Deem, Partner unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Deem with respect to such rights, and agrees, at Deem's request and expense, to consent to and join in any action to enforce such rights. If Partner has any rights to such Intellectual Property Rights that cannot be assigned to Deem or waived by Partner, Partner unconditionally and irrevocably grants to Deem during the term of such rights, an exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicense, to reproduce, create derivative works of, distribute, publicly perform and publicly display by all means now known or later developed, such rights.
Partner acknowledges that any breach of its obligations with respect to Intellectual Property Rights of Deem will cause Deem irreparable injury for which there are inadequate remedies at law and that Deem shall be entitled to equitable relief in addition to all other remedies available to it.
Partner shall use its best efforts to ensure that every Client Agreement shall include, at a minimum, contractual provisions which: (a) restrict use of DBSS to Client's own internal business purpose; (b) prohibit (i) assignment, timesharing and rental of DBSS; (ii) title to DBSS from passing to the Client or any other party; (iii) reverse engineering, disassembly or decompilation of DBSS; (iv) use of any device, software or technique to interfere with or attempt to interfere with the proper working of DBSS or impose an unreasonable or disproportionately large load on the site's infrastructure; (v) posting or transmitting to DBSS any unlawful, fraudulent, harassing, libelous, or obscene information of any kind, any information in violation of another party's copyright or intellectual property rights, or any information that contains a virus, bug, or other harmful item; (vi) publishing, performing, distributing, or preparing derivative works, or other use, of DBSS content other than as expressly permitted; or (vii) redeliver any of the content using "framing," hyperlinks, or other technology without Deem's express written permission; (c) disclaim, to the extent permitted by applicable law, Deem's liability for any damages, whether direct, indirect, incidental or consequential, arising from the use of DBSS or under the Client Agreement; (d) require the Client, at the termination of the Client Agreement to discontinue use and destroy or return to Partner all copies of DBSS and documentation; (e) require the Client to comply fully with all relevant export laws and regulations to assure that neither DBSS, nor any direct product thereof, are exported, directly or indirectly, in violation applicable law; and (f) specify Deem as a third party beneficiary of the provisions of this Article 10; and (g) notifies Client of the following:
Client acknowledges that Deem does not include any guarantee regarding the quality or performance of the services (e.g., travel, hotel, car rental, package ship) that may be procured through Deem or the sufficiency of the providers of such services in meeting the requirements of Client or its End Users. Client understands and agrees to comply with all applicable supported supplier website terms and conditions, including restrictions and applicable change and cancellation policies. Client acknowledges that Deem is not responsible for the content of the supported supplier websites, including, but not limited to the accuracy of the policies or practices of such web sites and that Deem does not make any representations regarding the content or accuracy of information (including but not limited to fares, rates or availability). Client's use of such suppliers' services and related sites is subject to any applicable terms and conditions of use and privacy policies of such suppliers. Client acknowledges that Deem, in conjunction with providing Deem Travel hereunder, may disclose certain booking data and Confidential Information including, but not limited to, End Users' names, End Users' profile information including credit card data with applicable airline supplier websites as directed by Client's End Users. Client will be solely responsible for: (a) all responsibilities related to changes and/or cancellations of services by an End User, including, but not limited to, lost tickets, fraud, obtaining possession of the applicable ticket (paper ticket or electronic ticket) from the applicable airline supplier or non- fulfillment by the applicable supplier; (b) for ensuring that any purchases hereunder are made in accordance with its policies and procedures and guidelines and for resolving any disputes with its employees and agents related thereto; (c) for payment of any and all products or services (and associated service fees) ordered or purchased through the Deem Services including, but not limited to, agent-assisted booking services, any purchases made using Client's centralized or group credit card including, but not limited to, purchases by its employees or agents (former or current); and (d) certain Confidential Information, including, but not limited to, End Users' names, End Users' profile information including credit card data and the security of such Confidential information when utilizing any supplier website utilized through the Deem Services.
Partner shall use all reasonable and practical means available to control the restricted use of DBSS and to ensure compliance with the provisions of this Article 10. If Partner becomes aware that a Client uses or has used DBSS in violation of the provisions of this Article 10, Partner shall immediately notify the Client of such unauthorized use and if the Client fails to discontinue such unauthorized use following notification, terminate the Client Agreement and/or access to the Client (as applicable). Any third-party software that is delivered with DBSS may be used solely in connection with Partner's licensed use of DBSS.
Deem's policy on any pricing discrepancies through DBSS is attached here to as Exhibit B.
Partner hereby agrees to defend and/or settle, at its own expense, and hold Deem and its respective officers, directors, agents and employees ("Indemnitees") harmless from and against any and all third-party claims and actions, and shall pay such damages, expenses, and liabilities, including, but not limited to, attorney fees and other expenses incident thereto that may be threatened against, or recoverable from, the Indemnitees arising out of (i) Partner's failure to include, in all materials respects, the required contractual terms set forth in Article 10 above in each Client Agreement, (ii) misrepresentation, representations inconsistent with these Terms and Conditions, negligence, errors or omissions on the part of a party or representatives of such party, which in all cases materially and adversely affect Deem; (iii) unauthorized use or misuse of DBSS including, without limitation, making fraudulent bookings, or permitting fraudulent bookings by violating Subsection 2.4(b), to the extent known by Partner and uncured or (iv) Partner's violation of law, or breach of its confidentiality or data security obligations.
Deem hereby agrees to defend and/or settle, at its own expense, Partner and its respective officers, directors, agents and employees from and against any and third-party claims and actions, and shall pay such damages, expenses, and liabilities, including, but not limited to, attorney fees and other expenses incident thereto to the extent such claim is based on any allegation that the DBSS infringes or misappropriates any third-party Intellectual Property Rights. If any such portion of the DBSS becomes, or in Deem's reasonable opinion is likely to become, the subject of any such claim or action, then Deem, at its option and expense, may either: (i) procure for Partner the right to continue using same as contemplated hereunder; (ii) modify same to render same non-infringing; (iii) replace same with equally suitable, functionally equivalent, compatible, non-infringing products, materials or services; or (iv) if none of the foregoing are commercially reasonable, terminate these Terms and Conditions without further liability and refund to Partner the unused portion of any fees prepaid under these Terms and Conditions. Notwithstanding the foregoing, Deem shall have no liability or obligation under this Section to the extent any such claim arises out of (i) Partner's or its Clients' use of the DBSS in a manner not strictly in accordance with these Terms and Conditions; (ii) the combination, operation or use of the DBSS with any other product, service or technology not provided by Deem, to the extent that such infringement would not have occurred but for such combination, operation, or use. THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATION OF DEEM AND THE SOLE AND EXCLUSIVE REMEDY OF PARTNER WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT IN CONNECTION WITH THESE TERMS AND CONDITIONS.
In the event that either party is required to defend and/or settle any third party claim or action, such requirement shall be contingent upon the indemnified party: (a) notifying the indemnifying party promptly in writing of any such claim or action; (b) gives the indemnifying party sole control of the defense and settlement of such claim or action; and (c) gives the indemnifying party all reasonable assistance and cooperation in such defense at the indemnifying party's expense.
Obligations under this Section shall survive the expiration or termination of these Terms and Conditions for any reason for a period of 12 months following the termination or expiration of these Terms and Conditions.
By virtue of these Terms and Conditions, the parties may have access to information including know-how and trade secrets, proposed new products and services, and/or the business or affairs, which are the confidential and proprietary information of the other party and not generally known to the public ("Confidential Information"). Confidential Information shall include, without limitation, all information of either party clearly identified as confidential, DBSS in any embodiment and any other information relating to DBSS received by Partner from Deem that is also identified by Deem as proprietary or confidential, and the terms under these Terms and Conditions.
A party's Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the other party; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party.
The parties agree to hold each other's Confidential Information in confidence during the term of these Terms and Conditions and for a period of 3 years after termination of these Terms and Conditions, except for trade secrets. The parties agree, unless required by law (in which case the party being required to disclose by law provides notice thereof to the other party, together with the statutory or regulatory provision, or court order, on which such disclosure is based, as soon as practicable prior to such disclosure so that the other party has the opportunity to obtain a protective order or take other protective measures as it may deem necessary with respect to such information), not to make each other's Confidential Information available in any form to any third party for any purpose other than the integration of these Terms and Conditions. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of these Terms and Conditions. The parties hereby consent to the disclosure of its Confidential Information to the employees, contractors or consultants of the other party as is reasonably necessary in order to allow the other party to perform its obligations under these Terms and Conditions and to obtain the benefits hereof, provided that each such employee, contractor or consultant who will have access to any Confidential Information has executed a non-disclosure agreement which prohibits the unauthorized use or disclosure of any such Confidential Information.
13.2 Limitation of liability
EXCEPT FOR DAMAGES ARISING OUT OF PARTNER'S BREACH OF THE SCOPE OF ITS LICENSE RIGHTS, ITS DATA SECURITY OBLIGATIONS, OR ITS CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, ECONOMIC, OR CONSEQUENTIAL LOSS OR DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF OPPORTUNITIES OR SAVINGS, LOSS OF REVENUE, DATA OR USE, INTERRUPTION OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY UNDER ARTICLE 12 AND FOR DAMAGES ARISING OUT OF PARTNER'S BREACH OF THE SCOPE OF ITS LICENSE RIGHTS, ITS DATA SECURITY OBLIGATIONS, OR ITS CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE AND CUMULATIVE LIABILITY FOR ANY CLAIMS AND DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS EXCEED THE AMOUNT OF FEES PAID BY SUCH PARTY TO THE OTHER UNDER THESE TERMS AND CONDITIONS DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE FOREGOING DOES NOT RELIEVE EITHER PARTY OF ITS OBLIGATION TO PAY ANY AMOUNT DUE AND PAYABLE UNDER THESE TERMS AND CONDITIONS.
13.3 Relationship between parties
In all matters relating to these Terms and Conditions, Partner will act as an independent contractor. At all times, the relationship between Partner and Deem shall be that of independent contractors and nothing expressed or implied shall constitute the parties as partners, joint-ventures or co-owners. Except as expressly provided in these Terms and Conditions, neither party shall have the right to enter into a binding agreement on behalf of, or otherwise bind, the other, nor have the right to direct or control the activities of the other. Each party shall be responsible for its own costs and expenses associated with its performance under these Terms and Conditions.
13.4 Assignment and acquisition
Neither party may assign or transfer any of the rights or responsibilities set forth herein without the express written consent of the other party (which consent shall not be unreasonably withheld or delayed), and any purported attempt to do so shall be deemed null and void; provided, however, that either party may assign these Terms and Conditions to any successor to substantially all of its business or assets to which these Terms and Conditions relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to the foregoing, these Terms and Conditions shall inure to the benefit of and be binding on the respective successors and assigns of the parties. In the event that Partner acquires a travel management company that is an existing Deem partner, and Partner wishes to terminate the acquired company's existing Deem contract and incorporate the acquired company into Partner's contract, Partner must fulfill any minimum financial commitments remaining on the acquired company's Deem contract by adjusting the commitment of this contract commensurately.
All notices which either party is required or may desire to give to the other party under or in conjunction with these Terms and Conditions shall be in writing, and shall be delivered by either a nationally recognized courier, or registered mail, postage prepaid, return receipt requested. Notices shall be deemed given on the date of delivery if delivered by a nationally recognized courier or on the date indicated on the return receipt. Notices to Deem shall be sent to the attention of the General Counsel at the address set forth at the beginning of these Terms and Conditions or at such other address as Deem may specify in writing. Notices to Partner shall be sent to the address set forth on the Cover Page or at such other address as Partner may specify in writing.
13.6 Governing law/jurisdiction
These Terms and Conditions shall be deemed to have been made in, and all matters arising out of or relating to these Terms and Conditions shall be construed and governed by the laws of the State of California, without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any legal action or proceeding relating to these Terms and Conditions shall be instituted in a state or federal court in San Francisco or San Mateo County, California.
In the event that any provision of these Terms and Conditions shall be unenforceable or invalid under any applicable law or be so held by an applicable court decision, such unenforceability or invalidity shall not render these Terms and Conditions unenforceable or invalid as a whole, the remaining provisions of these Terms and Conditions will remain in full force and effect, and, in such event, any such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or intended provision within the limits of applicable law or applicable court decisions.
The waiver by a party of any breach by the other party of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach by the other party of the same or any other term, covenant or condition contained in these Terms and Conditions. The subsequent acceptance of performance hereunder by a party shall not be deemed to be a waiver of any preceding breach by the other party of any term, covenant, or condition of these Terms and Conditions, other than the failure of such party to perform the particular duties so accepted, regardless of such party's knowledge of such preceding breach at the time of acceptance of such performance. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter.
13.9 Force majeure
Neither party shall be liable to the other for failure or delay in the performance of a required obligation, except for the payment obligations of Partner, if such failure or delay is caused by strike, riot, fire, flood, natural disaster, act of terrorism or sabotage, cyber-attack or Internet service provider failure or delay, or other similar cause beyond such party's control, provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible, and provided further that the other party may terminate these Terms and Conditions if such condition continues for a period of one hundred eighty (180) days.
Notwithstanding anything to the contrary in these Terms and Conditions, each party may announce in non-public forums the existence of the business relationship established hereunder, provided that neither party shall disclose any of the terms of these Terms and Conditions to any third party without first obtaining the written consent of the other party. Deem and Partner shall have the right to refer to each other as partners with respect to DBSS in materials and on its website.
13.11 Injunctive relief
It is understood and agreed that notwithstanding any other provisions of these Terms and Conditions, a breach by either party of Section 13.1 ("Nondisclosure"), may cause either party irreparable damage for which recovery of money damages would be inadequate, and that, in addition to any and all remedies available at law, either party shall be entitled to seek timely injunctive relief to protect its rights under these Terms and Conditions.
These Terms and Conditions may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
13.13 Entire agreement
These Terms and Conditions, together with any schedules, exhibits, and addenda, completely and exclusively constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of these Terms and Conditions. In the event of any conflict between the terms of these Terms and Conditions and an addendum hereto, the terms of the addendum shall control with respect to the subject matter of the addendum only. These Terms and Conditions may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify these Terms and Conditions.
All capitalized terms used herein shall have the meaning set forth in the Agreement, except as otherwise defined herein.
"Critical Incident" means a disruption in the Deem Service due to the Deem Network, or a significant degradation in performance for which no work around or fix exists, that prevents an End User from logging into or accessing the Deem Service.
"Designated Support Contacts" means the two Partner Designated Support Contacts as designated from time to time.
"Incident" means any Critical Incident or any Non-Critical Incident.
"Non-Critical Incident" means an error in the Deem Service other than a Critical Incident.
"Deem Network" means any hardware or software residing on Deem's facilities for the provision of the Deem Service. For purposes of clarification, the Deem Network does not include any hardware or software provided by any Client, vendor, or any third party, including, without limitation, any Client LAN or WAN, any Client's or Internet connection or the Internet.
"Update" means a generally available release of DBSS which corrects any defects, error or bugs or incorporates minor enhancements to the functionality. Updates shall not include any Upgrade, or any modules, products or services that are priced and sold separately.
"Upgrade" means a generally available release of DBSS that incorporates significant additional or improved features.
"Initial Response Time" means the amount of time until Deem acknowledges the Error Report and issues a support ticket and tracking number.
2. Technical Support
Deem shall provide technical support for DBSS solely to the Partner Designated Support Contacts in accordance with this Exhibit A. The Partner Designated Support Contacts shall be responsible for technical support, if any, to End Users. The maximum number of included Partner Designated Support Contacts is two (2), provided that each Designated Support Contact shall also have one back-up Designated Support Contact. Partner may add an additional Partner Designated Support Contact (including one back-up) upon its reasonable request as commercially necessary to fulfill its support obligations.
2.2 Reporting and classification of support issues
In the event that Partner desires to report an Incident, Partner shall provide Deem with: (i) a short description of the Incident; (ii) a preliminary classification of the Incident as either Critical or Non- Critical; (iii) a customer ID that has been provided by Deem to identify the Client reporting the Incident; and (iv) a contact telephone number and e-mail address for the Partner Designated Support Contact to whom Deem should report the incident status (collectively, the "Incident Report"). Deem shall respond to the Incident Report by issuing a support ticket and tracking number in accordance with the response times set forth in Part 2.4. Deem reserves the right to review and change the classification of an Incident provided that Deem provides justification for the change.
2.3 Provision of technical support services
(a) Technical Telephone Support. Deem shall provide telephone support to Partner Designated Support Contacts on a 24x7 basis for the purpose of reporting an outage or a Critical Incident. Partner shall not provide any End User with any telephone number provided by Deem for telephone support. In consideration of such telephone support, Partner shall pay Deem the amounts as calculated in accordance with the Agreement, as applicable.
(b) Technical E-mail Support. Deem shall provide Partner an e-mail address (currently firstname.lastname@example.org) to which Partner Designated Support Contacts can e-mail Incident Reports or other technical support questions or issues. Client shall not provide any End User with any such e-mail address.
(c) Customer Support portal. Vendor shall provide Partner a webform for simplifying the entry of new technical support cases.
2.4 Response times
Deem shall use reasonable efforts to meet an initial response time of one hour for cases reported. Deem does not guarantee that any issues or problems will be resolved or that any component of the Services will be error-free.
2.5 Broadcast messages
Deem shall send to the Designated Support Contacts broadcast system-related messages. Such broadcast system-related messages include, without limitation, messages regarding service updates, maintenance windows and service enhancements.
Deem shall not be responsible for providing any technical support for any errors residing outside the Deem Network.
3. Updates and Upgrades
Deem reserves the right to develop, implement and deploy Updates and Upgrades to the Deem Service at any time in its discretion. In no event shall Client be denied access to functionality included in prior versions of the Deem Service if Deem offers such functionality as an Upgrade in future versions of the Deem Service.
4.1 By Deem
Deem shall offer: (i) its "Train-the-Trainer" sessions to the Partner Designated Support Contacts and designated Partner trainers; and (ii) web-based training to End Users, in accordance with its standard policies and pricing and any terms set forth in a separate document, governed by these Terms and Conditions, as applicable.
4.2 By Partner
The Partner's designated trainers shall be responsible for providing all trainings internally.
The following policy defines the circumstances under which Deem will take responsibility for the reimbursement of a travel agency due to a pricing discrepancy between airfare, hotel or rental car rates displayed in our system and the final price paid by the traveler.
1. Changes in airfare, hotel rates or rental car rates
Deem does not guarantee that air fares, hotel rates, or rental car rates quoted in our system will be available at the quoted price when the ticket is issued by the travel agency or when the customer is billed for their hotel or rental car. We will take commercially reasonable steps to insure that we provide accurate faring and pricing information to the user when they are shopping for a trip.
2. Test and customer support bookings
Deem staff assists the travel agency in configuring the Deem travel booking site. The travel agency is responsible for reviewing the configuration of the booking site and performing the appropriate level of quality control and testing prior to allowing a customer to book travel. This includes validating that prices for air, hotel and rental car options are accurate.
The travel agency is responsible for defining and communicating their processes for creating and cancelling bookings made for testing or customer support purposes. The travel agency is responsible for any costs associated with bookings made by travel agency staff. Deem employees who use the booking site for testing or customer support purposes are responsible for complying with the written procedures of the travel agency.
In those situations in which Deem staff do not comply with the travel agency's policies and they create a booking that incurs a cost, then Deem will be responsible for paying those costs.
2.1 Airfare discrepancies
Prior to purchase, we price all travel itineraries in the GDS that is configured by the travel agency. Our system uses the configured Pseudo City Code and displays the appropriate discounts and fare rules for the flight options displayed in our system. The travel agency is responsible for loading air fare discounts and fare rules into the GDS for the customer's Pseudo City Code.
Deem is not responsible for any price discrepancies between fares displayed in Deem from the GDS at the time of booking and the correct price that should have been displayed to the user because the information stored in the GDS was incorrect or incomplete.
This includes itineraries with flight segments on multiple airlines that are incorrectly displayed in the GDS as discounted and combinable.
In those situations in which the price of a ticket goes up because the travel agency has to split a ticket on a fare that was incorrectly stored in the GDS, then it is the responsibility of the travel agency and/or the customer to pay the cost of any fare increase.
In those situations in which the price of a ticket goes up because the travel agency does not issue a ticket in a timely manner or fails to issue a ticket, then it is the responsibility of the travel agency and/or customer to pay the cost of any fare increase.
Deem is responsible for additional costs incurred by the traveler if the Deem travel booking site malfunctions and causes the status of a booking to be displayed incorrectly so that it prevents ticketing from occurring but does not let the user or travel agency know there is a problem.
3. Hotel rates discrepancies
Deem is not responsible for any discrepancies between hotel rates displayed in our system and the rate charged to the traveler when they complete their hotel stay.
Deem is responsible for additional costs incurred by the traveler under the following circumstance:
· If our system malfunctions and displays the status of a hotel reservation as confirmed, when it is not confirmed in the GDS.
4. Rental car discrepancies
Deem is not responsible for any discrepancies between rental car rates displayed in our system and the rate charged to the traveler when they complete their rental.
Deem is responsible for additional costs incurred by the traveler for the following circumstance:
· If our system malfunctions and displays the status of a rental car reservation as confirmed, when it is not confirmed in the GDS.
5. Other conditions
In other mutually agreed upon situations, Deem reserves the right to compensate or reimburse the travel agency for any additional costs incurred as a result of a system malfunction or inappropriate action taken by Deem staff.
If our system malfunctions as a direct result of bad data provided to Deem by the travel agency or company (including but not limited to user profile data), then Deem will not take any responsibility for reimbursing the traveler/customer.
If our system malfunctions as a direct result of actions taken by the travel agency in the GDS, then Deem will not take any responsibility for reimbursing the traveler/customer.
6. Reimbursement policy
Deem will not directly reimburse the customer in any of the above mentioned situations. Deem will only reimburse the travel agency when they provide us with a debit memo for the additional costs incurred by the traveler/customer. Deem will only reimburse commercially reasonable costs incurred by the traveler.