GENERAL TERMS AND CONDITIONS
All capitalized terms not otherwise defined herein or in the applicable Schedules have the following meanings:
- (a) Agreement means these General Terms and Conditions and any Schedules that (i) reference these General Terms and Conditions, and (ii) are executed by Onyx and Customer.
- (b) Affiliate means (i) any lodging establishment that is now or hereafter owned, leased, managed, franchised or represented by Customer with access to the Services; (ii) any location that is now or hereafter owned, leased or managed by Customer that provides reservation services to any of the foregoing establishments; or (iii) any entity that is controlled by or under common control with Customer with access to the Services.
- (c) Customer or Client means the entity executing one or more Schedules in order to receive Services from Onyx.
- (d) Schedules means, collectively, all service schedules, services agreements, order forms, pricing schedules/pricing forms, enrollment forms or any other forms (including any contract form entered into by Open Hospitality, LLC) that (i) reference these General Terms and Conditions, and (ii) are executed by Onyx and Customer.
Services. Pursuant to a mutually agreed plan and schedule of implementation, Onyx will provide to Customer the services ("Services") described in the Schedules. The Schedules are governed by these General Terms and Conditions.
Additional Services. Onyx is not obligated to provide any services to Customer other than those described in the Schedules. If Onyx provides any services to Customer pursuant to a work order, statement of work or similar document, which services are not subject to a Schedule, such services will be provided pursuant to these General Terms and Conditions and the contents of the governing work order, statement of work or similar document, provided that in the event of a conflict, these General Terms and Conditions will control.
3.0 GENERAL REQUIREMENTS
Cooperation; Infrastructure. Customer agrees (a) to reasonably cooperate with, and to cause each Affiliate to reasonably cooperate with, Onyx with respect to the implementation, maintenance, performance and modification or enhancement of the Services; and (b) at Customer?s sole expense, to procure, operate, maintain and manage (or cause its Affiliates to procure, operate, maintain and manage) such hardware, software, equipment and communications services and lines as may be reasonably necessary for Customer and each Affiliate to access and receive the Services (and, to the extent that the parties agree that Onyx will provide such communications services and lines, to pay Onyx for the same as agreed).
Modifications and Enhancements. Onyx reserves the right to modify or enhance the Services and related processes and procedures, provided that no such modification or enhancement affects the functionality of the Services in a material adverse manner. Onyx will not be obligated to provide, maintain or support any release or version of any Service other than the then-current release or version of such Service or the release or version immediately preceding the then-current release or version.
Accuracy of Data. Customer will cause all Customer and Affiliate information provided by Customer or Affiliates to Onyx to be complete, accurate, and current, and in the form and format reasonably required by Onyx.
Network Security. Each of Onyx and Customer will, and Customer will cause its Affiliates to, maintain commercially reasonable security policies and procedures that are directed at (a) detecting, preventing and containing the infection of their systems by harmful or malicious code; (b) deterring the use of Customer?s and Affiliates? connections to the Services by unauthorized personnel or for unauthorized purposes; and (c) deterring improper access to, use of or loss of data residing on Onyx? systems by means of Customer?s and Affiliates? connections to the Services. Customer will, upon Onyx? request, (i) identify the individuals given access by Customer and Affiliates to Onyx? networks and systems and notify Onyx of any changes to such group. Onyx will have the right to deny access by Customer, an Affiliate or any individual to Onyx? networks and systems due to reasonable security concerns. Customer will cause each third-party engaged by Customer or an Affiliate to access the Services on its behalf to comply with this section, and Onyx will be entitled to exercise any of its rights under this section with respect to such a third party.
4.0 FEES AND COSTS
Fees and Costs. Customer agrees to pay the fees and costs for the Services as set forth in the Schedules. All fees and costs are payable by Customer in U.S. dollars unless otherwise specified in the Schedules.
Taxes. Customer will pay all sales, use, excise, value added and similar taxes and duties levied by any taxing authority in connection with Onyx? delivery of the Service other than taxes that are levied upon Onyx? net income or payroll (collectively, "Taxes"). Except as expressly stated otherwise, all fees and costs are exclusive of Taxes.
Payment of Fees and Costs.
- (a) Except as otherwise provided in any Schedule, all amounts payable hereunder (i) are due within thirty (30) days of the date of receipt of each billing statement therefor; (ii) will be paid in accordance with payment instructions communicated to Customer by Onyx from time to and (iii) will be paid in U.S. Dollars, or such other currency as may be reflected in the subject billing statement by mutual agreement of the parties. Onyx may deliver billing statements by delivery of paper copies or by delivery of electronic copies via e-mail. If any amount is past due hereunder, Customer agrees to pay interest on such amount at the rate of one percent (1%) per month, or the maximum rate allowed by law, whichever is lower. Customer shall pay any collection costs, including reasonable attorneys' fees, and other expenses incurred by Onyx or any of its affiliates to collect any sums due under this Agreement.
- (b) Customer will notify Onyx in writing, within ten (10) business days of receipt of a billing statement, of any good faith dispute concerning such statement. Such notice will include reasonable details relating to the dispute, including the amount disputed by the Customer. Customer?s dispute of an amount due will not relieve Customer of its obligations to pay any undisputed amounts in accordance with this Agreement. The failure of Customer to dispute, in accordance with this section, an amount reflected as due on a billing statement will constitute a waiver by Customer of any objection to such amount.
Third-Party Costs. Customer acknowledges that any third party costs charged by Onyx as a separate line item on a billing statement ("Third Party Costs") may not include discounts, rebates or credits received by Onyx. Any increases in Third-Party Costs directly related to Onyx? delivery of the Services may be charged to Customer.
Termination Upon Breach. If a party to this Agreement materially breaches this Agreement, the non-breaching party may give written notice to the breaching party specifying the breach or breaches that have occurred. Except as otherwise provided in any Schedule, the breaching party will be entitled to ten (10) days after receipt of such notice within which to cure any payment breach and thirty (30) days after receipt of such notice within which to cure any other breach. If the breaching party fails to cure such breach within the applicable cure period after receipt of written notice, the non-breaching party may terminate one or more Schedules by giving written notice to the breaching party within sixty (60) days of the expiration of the cure period.
Termination Upon Change in Financial Position. Either party may terminate one or more Schedules by giving written notice to the other party if the other party ceases to do business as a going concern; becomes insolvent, bankrupt or the subject of a receivership or administration; has a trustee or liquidator appointed for it; or has any substantial part of its property subjected to any levy, seizure, assignment or sale for or by any third party.
Force Majeure. A party?s failure to comply with the terms of this Agreement, other than Customer?s payment obligations, will not constitute a breach to the extent such failure results from events beyond the control of the non-compliant party, including without limitation government regulation; acts of God; terrorist acts; fire; war; civil unrest; power fluctuations or outages; or telecommunications outages or delays. If such non-compliance continues for more than thirty (30) consecutive days, either party may terminate one or more Schedules by giving written notice to the other party.
Agreed Damages Upon Early Termination. Subject to Section 5.3 above, if Customer takes action to terminate one or more Schedules before the end of their term for any reason other than Onyx? breach, or if Onyx terminates one or more Schedules for Customer?s breach, Customer will pay to Onyx as liquidated damages for such termination, and not as a penalty, any amounts described in the Schedules under the heading "Agreed Damages Upon Early Termination." The parties agree that such amounts are liquidated damages payable to Onyx for the termination of such Schedules and are not a penalty; that it would be difficult or impossible to ascertain Onyx? actual damages arising from such a termination of the such Schedules, and that the amount of such liquidated damages represents a reasonable and good faith estimate of such damages; and that such liquidated damages are not indirect, special, incidental or consequential damages for purposes of these General Terms and Conditions. Onyx? rights under this section are in addition to any other rights that Onyx may have hereunder.
Survival. Sections 5.4, 5.5, 6.1, 7.1, 7.2, the indemnification language of 7.3, 7.4, 8.1, 8.2, 8.3, 9.1, 9.2 and 9.11 hereof and any rights of Onyx or Customer that may have accrued as of the termination of any Schedule will survive such termination.
Confidentiality. "Confidential Information" means all information furnished by one party to the other in connection with Onyx? delivery of the Services that is designated or treated as confidential by the disclosing party and all information concerning the design, functionality and operation of the Onyx systems used to provide the Services. Confidential Information does not include any information that (a) is already lawfully known by the receiving party when received as a matter of record; (b) is independently developed by the receiving party; (c) is now or hereafter becomes generally available to the public through no fault of the receiving party; (d) is received by the receiving party from a third party legally entitled to make such disclosure; or (e) is disclosed after the receiving party obtains prior written approval from the disclosing party for such disclosure. Neither party will use the other party?s Confidential Information for any purpose other than to fulfill its obligations arising under this Agreement. Each party will use reasonable efforts to keep confidential the other party?s Confidential Information and the terms and pricing contained in this Agreement and will not disclose such information to any person or entity other than its employees, agents, and affiliates who agree to comply with this section or other than as required to fulfill its obligations arising under hereunder. Each party will be responsible for the breach of this section by its employees, agents, and affiliates. A party may disclose the other party?s Confidential Information to the extent required by law, regulation, judicial process or order of a governmental authority, provided that the disclosing party discloses only that Confidential Information necessary to comply with such requirement and that the disclosing party gives the other party prompt notice of such requirement following the disclosing party?s receipt of notice, or determination of the existence, of such requirement. After the termination of this Agreement, each party will promptly return to the other party or destroy all original and duplicate copies of the other party?s Confidential Information furnished to it upon the written request of the other party, provided that Onyx may retain in its records relating to its performance of the Services Customer?s Confidential Information that is incorporated into such records in the normal course of Onyx? business. Each party will certify any such destruction to the other party within five business days of such written request. Notwithstanding any provision of this Agreement, Onyx may use and disclose data derived by Onyx from its performance of the Services for purposes of reporting and analysis, provided that neither Customer nor any Affiliate, nor any customer or guest of Customer or any Affiliate, is identifiable from such reporting or analysis. Onyx represents that it will not disclose any personally identifiable information or personal financial information of any customer or guest of Customer or its Affiliates in connection with any such reporting or analysis. Onyx agrees to indemnify and hold harmless Customer and its Affiliates from and against all losses, costs, liability, damages, and expenses (including reasonable legal expenses) incurred or suffered by them arising out of or in connection with Onyx? breach of the representation in the preceding sentence.
7.0 INTELLECTUAL PROPERTY RIGHTS; OWNERSHIP OF DATA
Onyx Ownership. Onyx and its licensors will retain exclusive ownership of all right, title and interest, including without limitation, all Intellectual Property Rights (as defined below), in and to the Services and the systems and software used by Onyx to provide the Services; the design, functionality, operation and components of the same; all modifications, enhancements and upgrades to the same; and Onyx? business methods. No right, title or interest of any kind in the foregoing is granted to Customer or any Affiliate pursuant to these General Terms and Conditions.
Customer Ownership. No right, title or interest of any kind is granted to Onyx pursuant to these General Terms and Conditions in or to the data or images furnished by Customer and its Affiliates to Onyx during the term of any Schedule for use by Onyx in providing the Services. Following Customer?s payment to Onyx of all amounts due at the time of termination of one or more Schedules, Onyx will deliver to Customer, in a format supported by the Onyx systems used to provide the Services, one or more files containing the data and images previously furnished by Customer and its Affiliates to Onyx that are stored on such systems as of the date of termination.
Use of Marks. Customer represents that it has the right to grant, and hereby grants, to Onyx the right to use and display, and store on Onyx' systems, the trademarks, service marks, trade names, trade dress, logos, names, and pictures (collectively, "Marks") of Customer and each Affiliate (and the Marks of any third party that are used or provided by Customer and each of its Affiliates) to the extent necessary to perform Onyx? obligations in accordance with this Agreement. Customer will indemnify, defend and hold harmless Onyx and its affiliated entities from and against all losses, claims, liability, costs, damages, fines, and expenses (including all legal costs) incurred or suffered by them that arise out of or in connection with Customer?s breach of the representation in the preceding sentence. Onyx will not obtain any right, title or interest in or to the Marks of Customer or any Affiliate pursuant to these General Terms and Conditions. Except as set forth in the first sentence of this section, neither party will use the Marks of the other party without the other party?s prior written approval.
Definition. "Intellectual Property Rights" means any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship, including but not limited to copyrights and moral rights; (b) trademark, trade name and trade dress rights and similar rights; (c) trade secret rights; and (d) patents, designs, database rights, algorithms and other industrial property rights; all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated), whether arising by operation of law, contract, license or otherwise; and all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force.
8.0 DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
Disclaimer of Warranties. ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SATISFACTORY QUALITY, GOOD AND WORKMANLIKE SERVICE, REASONABLE SKILL AND CARE OR NON-INFRINGEMENT, RELATING TO THE SUBJECT MATTER HEREOF ARE DISCLAIMED BY ONYX AND WAIVED BY CUSTOMER TO THE MAXIMUM EXTENT PERMITTED BY LAW. ONYX DOES NOT WARRANT THAT THE PROVISION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
Limitation of Liability. NOTHING IN THIS OR THE FOLLOWING SECTION EXCLUDES OR LIMITS THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR FOR ITS FRAUDULENT MISREPRESENTATION. SUBJECT TO THE PRECEDING SENTENCE, ONYX, ITS SUBSIDIARIES AND AFFILIATED ENTITIES WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO (a) THE FAILURE OF THE SERVICES TO OPERATE OR FUNCTION DUE TO APPLICATIONS, EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY CUSTOMER, AN AFFILIATE OR A THIRD PARTY NOT ACTING AS ONYX? AGENT; (b) INTERRUPTIONS OF CUSTOMER?S OR ANY AFFILIATE?S ACCESS TO THE SERVICES OR LOST OR ALTERED TRANSMISSIONS NOT CAUSED BY THE ACTS OR OMISSIONS OF ONYX OR A THIRD PARTY ACTING AS ONYX' AGENT; OR (c) DATA PROVIDED OR ENTERED BY CUSTOMER, ANY AFFILIATE OR ANY THIRD PARTY (OTHER THAN ANY ERROR OR OMISSION IN DATA CAUSED BY ONYX? ENTRY OF THAT DATA). IN NO EVENT WILL ONYX? LIABILITY HEREUNDER EXCEED THE TOTAL FEES AND COSTS PAID BY CUSTOMER FOR THE SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CAUSE OF ACTION OR OCCURRENCE WHICH IS THE BASIS OF THE CUSTOMER?S CLAIM AGAINST ONYX.
No Consequential Damages. Subject to the first sentence of the preceding section, neither party will be liable to the other for any indirect, special, incidental, punitive or consequential damages, including lost profits, income or goodwill, regardless of whether or not such party has been advised of the possibility of such damages, caused by or resulting from any breach of this Agreement or arising out of the performance under any Service Schedule, and each party hereby expressly waives such damages.
Mandatory Arbitration. Any claim or dispute, other than injunctive relief sought by either party, (each, a "Claim") by either Customer or Onyx against the other, or against the employees, officers, directors, agents or assigns of the other, arising from or relating in any way to Onyx? delivery of the Services (whether under statute, in contract, tort, or otherwise and whether for money damages, penalties or declaratory or equitable relief), including Claims regarding the applicability of this arbitration clause, will be resolved by binding arbitration. The parties agree that such arbitration will be governed by the rules of the American Arbitration Association (the "AAA") if Customer?s head or executive office is located in the United States, or the rules of the International Chamber of Commerce if Customer?s head or executive office is located outside of the United States, provided that any Claim will first be submitted to a mediator in accordance with such governing rules. The parties agree to give up their right to a jury trial with respect to any Claim and agree that no Claim may be brought as a class action or as a private attorney general. Neither party may act as a class representative or participate as a member of a class of claimants with respect to any Claim. The parties agree that the results of any such arbitration or mediation, as well as information exchanged in connection with any arbitration or mediation, will be Confidential Information for purposes hereunder. These General Terms and Conditions are made pursuant to a transaction involving interstate commerce and are governed by the U.S. Federal Arbitration Act.
Law and Venue.
- (a) This Agreement shall be governed by and interpreted pursuant to the laws of the State of Texas, USA, without reference to its conflict of laws principles; (ii) venue for any suit, cause of action, arbitration proceeding or other dispute relating to this Agreement will be in Dallas County, Texas; and (iii) subject to any provisions of this Agreement mandating arbitration, each party irrevocably submits to the jurisdiction of the state and federal courts located in Dallas County, Texas with respect to the same.
Compliance with Laws. Each of Customer and Onyx will fully comply with all material laws, regulations and governmental orders applicable to their performance hereunder. Onyx represents that it has on file with the United States Department of Commerce a certification that Onyx adheres to the "safe harbor framework" developed by such Department in coordination with the European Commission with respect to the European Commission?s Directive on Data Protection. In no event will Onyx or any of its affiliates be required to perform hereunder to the extent that Onyx reasonably concludes that such performance may violate any applicable law, regulation or governmental order (including any trade sanctions or export controls imposed by the government of the United States).
Status of Parties. This Agreement does not constitute a partnership, joint venture, or similar arrangement between the parties. Neither party, nor any of their respective directors, officers, employees or agents, is authorized to bind the other party or otherwise act in the name of or on behalf of the other. Nothing herein shall be construed to give any person or entity other than Onyx and Customer any legal or equitable right, remedy or claim in connection with or arising from Onyx? performance hereunder. If this Agreement is governed by the laws of England, any person or entity that is not a party hereunder will have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
Assignment. The Schedule(s) are not assignable by Onyx or Customer without the prior written consent of the other party, and such consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign the Schedule(s) without consent to a party engaged in a merger with, an acquisition of, or the purchase of all or substantially all of the assets of, the assigning party, provided the assignee unconditionally assumes the same in writing. Onyx may assign the Schedule(s) to any of its subsidiaries or affiliates without Customer?s consent. Any assignment in violation of this section is void and unenforceable.
Notices. All notices given hereby must be in writing and (a) personally delivered; (b) deposited in the mail, first-class, registered or certified mail, return receipt requested, or similar service with postage prepaid; or (c) sent by overnight courier service (for next business day delivery if within the country of the sender or second business day delivery if outside the country of the sender), shipping prepaid as follows (or to such persons or addresses as any party may request by notice duly given):
If to Onyx: If to Customer: Pegasus Business Intelligence, LP Notice shall be sent to Customer?s address on file Two Lincoln Centre 5420 LBJ Freeway Suite 900 Dallas, Texas 75240, USA Attn: Monica French With Copy to: Michelle West (Same Address)
Except as otherwise specified herein, notices will be deemed given and received at the time of delivery or of refusal of delivery.
Entire Agreement; Controlling Language. This Agreement constitutes the entire agreement between Onyx and Customer and supersedes and replaces any and all other agreements and representations, verbal or written, with respect thereto. There are no representations, warranties or agreements made or relied upon by either party with respect to the subject matter hereof that are not set forth in this Agreement. This Agreement may not be amended or modified other than by a written agreement executed by Customer and Onyx. In the event of any conflict between these General Terms and Conditions and the terms of any Schedule, these General Terms and Conditions will control. English will be the controlling language with respect to this Agreement. Any translation of this Agreement into another language is for convenience only and no such translation will be binding against the parties hereto.
Exclusive Agreement. Except as otherwise provided herein, this is an exclusive arrangement and Customer will not contract during the term of each Schedule with another party for the same or similar services as set forth therein.
Successors and Assigns. This Agreement is binding upon and inures to the benefit of the legal representatives, successors and duly authorized assigns of each party.
Execution; Retention. Each Schedule may be executed in counterparts, each of which when executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. A signature delivered by facsimile or electronic transmission will be effective to bind the executing party. Each Schedule may be retained or stored by either party solely in an electronic format, and any reproduction thereof by reliable means from an electronic format will be deemed an original.
Waiver. Except as otherwise provided herein, the failure of a party to exercise any of its rights or to enforce any of the provisions of this Agreement on any occasion will not be a waiver of such right or provision, nor affect the right of such party thereafter to enforce such right or provision.