1. AGREEMENT STRUCTURE
   
   Structure.  Each Service Order, including its Exhibits, is governed by this Master Services and Subscription Agreement, including its Appendices (together, the “MSSA”).  The Service Order and the MSSA are collectively referred to as the “Agreement”. To the extent of any inconsistency between (i) the MSSA and any Service Order, the Service Order will control, and (ii) the MSSA and the MSSA appendices, the MSSA appendices will control.   Capitalized terms used in this Agreement have the meaning set forth herein or in MSSA Appendix 1 (Definitions).
2. ACCESS AND USE RIGHTS; RESTRICTIONS
   
   (A) Access and Use Rights.  Subject to Customer’s compliance with the terms and conditions contained in this Agreement, Amadeus hereby grants to Customer, during the relevant Subscription Term, a limited, non-exclusive, non-transferable right for its Users to access and use, solely for its internal business purposes, each Subscription Service ordered pursuant to a Service Order in accordance with the terms of this Agreement and any related documentation.  All rights not granted in this Agreement are reserved by Amadeus.(B) Customer’s Users.  Users must be direct employees of a Customer Licensee or a Customer Property Manager or individual subcontractors acting in the same professional capacity as such employees who are subject to similar contractual measures and systems-use restrictions as employees, generally, and who, in each case, may access and use the Subscription Services solely for the purpose of managing and supporting Customer Properties.  Customer is responsible and liable for Customer Licensees, Users and Customer’s agents, and their compliance with the terms of the Agreement, including the policies set forth in Exhibit B of the Service Order.  Amadeus has the right to temporarily suspend any User or Customer Licensee that Amadeus in good faith suspects is engaged in a violation of this Agreement or other unauthorized conduct.  Amadeus’ suspension of Users is in addition to any other remedies that Amadeus may have under this Agreement.(C) Restrictions.  Customer will not, directly or indirectly, and Customer will not permit or enable any Customer Licensee, User or third-party to:  (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of any Subscription Service; (b) modify, translate or distribute any Services, or create derivative works based on any element of the Services or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to access or use the Services; (d) use any of the Services for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer Properties; (e) remove any proprietary notices; (f) publish or disclose to third-parties any reporting or evaluation of or pertaining to the Services without Amadeus’ prior written consent; (g) use a Service for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of any Service; (i) introduce any Open Source Software into any Service; (j) create internet links, interfaces or otherwise connect any third-party to any Service unless approved in a Service Order or Change Order and thereafter certified by Amadeus; (k) reproduce, distribute, frame or mirror any part of any Service on any other computer system; (l) access or copy any Service or information therein in order for a similar or potentially competitive product or service to be developed, either directly or indirectly; (m) use any Service in violation of any law, regulation or third-party rights; or (n) attempt to gain unauthorized access to any Service or any related systems or networks.  Any right under applicable law to decompile or reverse engineer any part of the Subscription Services is subject to Customer first requesting from Amadeus the technical information reasonably necessary for the limited purposes permitted under such law.  Upon such request, Amadeus reserves the right to enable the limited purposes permitted by law through other reasonable means. The use of each Service by a Customer Licensee or User is subject to the restrictions in this Section, and as otherwise set forth in this MSSA and/or in the Documentation. Any right under applicable law to decompile or reverse engineer any part of the Subscription Services is subject to Customer first requesting from Amadeus the technical information reasonably necessary for the limited purposes permitted under such law.  Upon such request, Amadeus reserves the right to enable the limited purposes permitted by law through other reasonable means.(D) Third-Party Services and Third-Party Offerings.  Amadeus may use the services of one or more third parties to deliver any part of the Services.  Amadeus may also make Third-Party Offerings available to Customer in connection with an applicable Service under the applicable terms found at https://www.amadeus-hospitality.com/legal/mssa/3P or by executing an independent agreement with such provider, which in each case solely governs the relationship between Customer and such provider.  Accordingly, the services of a Third-Party Offerings provider are not “Services” under the Agreement. Customer is prohibited from connecting any Third-Party Offering to a Service unless such connection (e.g., an API) has been certified by Amadeus and such Third-Party Offering is listed in a Service Order.
3. CUSTOMER OBLIGATIONS.(A) Customer Systems.  Customer is responsible for (a) obtaining, deploying and maintaining its Customer Systems, and all computer hardware, software, modems, routers and other communications equipment necessary and suitable for Customer Licensees and Users to access and use the Subscription Service (including updating Customer’s operating environment); and (b) paying all internal costs and third-party charges and access charges incurred in connection with the foregoing. Except as specifically set forth in a Service Order or a Change Order, Amadeus will not be responsible for supplying or maintaining any hardware, software or other equipment to Customer under this Agreement.(B) Customer’s Contact Information and Communications. Customer agrees to keep all contractual and online account information accurate, current and complete and inform Amadeus of any changes in Customer’s legal business name, address, email address and phone number.  Customer agrees to accept emails from Amadeus at the e-mail addresses specified by its Users for login purposes.  In addition, Customer agrees that Amadeus may rely and act on all information and instructions provided to Amadeus by Users from the above-specified contact information.(C) Responsibility for Customer Data. Customer acknowledges and agrees that Amadeus neither endorses the contents of any Customer communications, Customer Data, or Customer Content nor assumes any responsibility for any content therein.  Customer is responsible and liable for the completeness, integrity, quality and accuracy of Customer Data.   Amadeus is not obligated to verify, authenticate, monitor or edit the Customer Data.(D) Excused Performance.  If a Customer Licensee, User or any of Customer Licensee’s third-party vendors is delayed or fails to perform its obligations under this Agreement or otherwise interferes with Provider’s performance hereunder, Amadeus will be relieved of its obligations to perform to the extent impacted by such delay, failure or interference.  In such cases, the Parties may be required to execute a Change Order to address any schedule changes or additional charges or work required as a result of such event giving rise to such delay or failure.
4. CHARGES AND PAYMENT
   
   (A) Charges.  Customer agrees to pay all charges specified in each Service Order (collectively, the “Charges”) using one of the payment methods that Amadeus supports.  Payment obligations are non-cancelable and non-refundable. If Amadeus provides separate invoices for each Customer Property, Customer remains responsible for all Charges and any other financial obligations of the Customer Properties related to the Services. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.All Charges for Subscription Services will be invoiced in advance unless otherwise set forth in the applicable Service Order.  Other Charges will be invoiced as set forth in an applicable Service Order.  Except as otherwise set forth in the applicable Service Order, Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date.(B) Overdue Charges.  If Amadeus does not receive payment in full by the due date, then at Amadeus’ discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) Amadeus has the right to charge and collect any collections costs including legal fees arising from such non-payment.(C) Suspension of Services.  If any amounts owed by Customer for the Services are fifteen (15) or more calendar days overdue, Amadeus has the right, without limiting Amadeus’ other rights and remedies, to provide notice to Customer that Customer’s Services and access to the Services will be suspended unless such amounts are paid in full within fifteen (15) calendar days of such notice.  If payment is not received before the end of such notice period, then, without limiting Amadeus’ other rights and remedies, Amadeus has the right to suspend the Services.(D) Taxes.   Charges are exclusive of Taxes.  Taxes are chargeable in the same or separate invoice issued by Amadeus for the Services.  Each Party agrees to use good faith, commercially reasonable efforts to enable or assist the other Party to claim or verify any input tax credit, set off, rebate or refund in connection with this Agreement.  Each Party is fully responsible for and shall be liable for its payment of any Income Tax or duty as a result of this Agreement.  Should the Customer be required under applicable law to withhold or deduct any portion of the Charges due to a Withholding Tax, then the sum payable to Amadeus will be increased by the amount necessary to yield an amount equal to the sum it would have received had no withholdings or deductions been made.  Customer is responsible for any additional costs that arise from a Change in Tax Law.  Customer’s obligation under this Section (Taxes) will survive the termination or expiration of this MSSA.
5. SECURITY AND CREDENTIALS
   
   (A) Security.  Each Party will maintain appropriate administrative, physical and technical safeguards for protection of and the privacy, security, confidentiality and integrity of Personal Data as set forth in the Data Processing Addendum.(B) Data Processing Addendum.  The Parties agree that, to the extent applicable, Personal Data provided will be processed, stored and otherwise handled in accordance with Amadeus’ Data Processing Addendum, which, if applicable, shall form an inseparable part of this Agreement.  In the event of any conflict between the terms of this Agreement and the Data Processing Addendum regarding the subject matter of this Section 5 (SECURITY AND CREDENTIALS), the Data Processing Addendum will prevail.(C) Credentials.  Customer will assign one or more Users to be authorized administrators who will grant and remove access and access levels to Customer Licensees’ User accounts.  Customer will not permit or enable any third-party to access the Subscription Services.  Administrators may assign only an individual User to each account (i.e., no shared accounts), and each User account must be associated with a Customer-branded or Customer Property Manager-branded email address (e.g., not a gmail or hotmail or an account associated with a third-party entity).  For clarity, personnel of third-party vendors of Customer Licensees are not permitted to be Users.  For systems that are authorized to access a Subscription Service, such access must be established through a Certified Connection that operates as a User.  Customer will and will ensure that each Customer Licensee, Customer Property Manager and User maintains the confidentiality of all credentials.  Customer is solely responsible for access and use of the Subscription Service that occur using credentials issued to any Users.  Customer will, and will ensure that Customer Licensees and Customer Property Managers, restrict Users from sharing passwords and User accounts.  Customer is responsible for retiring each User’s access to the Subscription Service when the User’s employment or agency is terminated or the individual otherwise no longer requires access to the Subscription Service.  New accounts may be set up for new Users in replacement of Users that have been deactivated or are no longer permitted access to the Subscription Service or as otherwise permitted by a Service Order.  Customer agrees to immediately notify Amadeus of any unauthorized use of any account or credentials issued to Customer or Users, or any breach of security known to or reasonably suspected by Customer or Customer Licensees and any time that Customer or the Users should no longer have access to the Subscription Services or the data derived therefrom.  Amadeus will have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.(D) Amadeus Protective Measures.  Amadeus may, upon detection, take measures to reject, queue, throttle, elongate response times or suspend activity that appears to be the result of a malicious or bad actor, poses a threat to the security of a Subscription Service, or may impact the stability, reliability or performance of a Subscription Service or connected system.(E) No Circumvention of Security.  Neither Customer Licensee nor any of Customer’s Affiliates nor any User may circumvent or otherwise interfere with any user authentication or security of the Subscription Service.  Customer will immediately notify Amadeus of any breach, or attempted breach, of security known to Customer Licensee.  Customer will not and will not engage or permit a third-party to perform manual or automated penetration tests, vulnerability assessments, scans or similar computer system tests of any nature on the Subscription Service or any of Amadeus’ systems without prior written approval of both Amadeus’ Information Security (CISO or Deputy CISO) and Legal departments (GC or Deputy GC).
6. REPRESENTATIONS AND WARRANTIES; DISCLAIMER(A) Mutual Representations and Warranties.  Each Party represents, warrants and covenants that: (a) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, licenses, approvals or immunities not yet obtained; and (b) its acceptance of and performance under this Agreement will not breach any oral or written agreement with any third-party or any obligation owed by it to any third-party.(B) Customer’s Representations and Warranties.  Customer represents and warrants that:  (a) it has obtained and will maintain all necessary approvals and consents from, and has provided all necessary notices to, any persons or entities that have an interest in the Customer Content or Customer Data to enable Amadeus to perform its obligations hereunder; (b) all information provided by Customer is true, complete, and accurate, and Customer will notify Amadeus of any known changes and keep such information true, complete and accurate for the Term; (c) it will comply with the laws and regulations applicable to its use of the Services, including in processing all personal information processed by the Amadeus Services; (d) neither Customer Content nor Customer Data will infringe, violate or misappropriate any Intellectual Property Right or right of privacy held by any third-party; (e) for Subscription Services that include direct messaging services (for example, confirmation messages, upsells, cart abandonment, checkout receipt) Customer is responsible for and will make the required disclosures to any persons to whom Customer enables message sending features or sends messages using the Subscription Service, and will obtain all necessary consents from such persons, as may be required by applicable law and by Customer’s policies or agreements with consumers.(C) Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 6 (REPRESENTATIONS AND WARRANTIES; DISCLAIMER REPRESENTATIONS AND WARRANTIES; DISCLAIMERREPRESENTATIONS AND WARRANTIES; DISCLAIMER),  AMADEUS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  ANY WARRANTIES MADE BY AMADEUS ARE FOR THE BENEFIT OF CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD-PARTY.  ANY MATERIALS PROVIDED THROUGH THE AMADEUS SERVICES ARE LICENSED AND NOT SOLD. AMADEUS WILL NOT AND DOES NOT PURPORT TO PROVIDE ANY LEGAL OR OTHER PROFESSIONAL ADVICE UNDER THIS AGREEMENT OR IN RELATION TO THE SERVICES.
7. CONFIDENTIALITY
   
   (A) Non-Disclosure of Confidential Information. Each Party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other Party.  As between the Parties, Confidential Information is owned solely and exclusively by the Disclosing Party. The Receiving Party will, at all times, both during the Agreement Term and thereafter, keep in confidence Confidential Information received by it.  The Receiving Party will not use Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement.  Each Party agrees (a) to secure and protect the other Party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such Party’s own Confidential Information (but in no event less than reasonable care), and (b) to take appropriate action by instruction or agreement with its employees, Affiliates, Customer Licensees, Customer Property Managers, Users, and other agents who are permitted access to the other Party’s Confidential Information to satisfy its obligations under this Agreement.  Except as described in this Agreement, the Receiving Party will not disclose Confidential Information of the Disclosing Party to any person or entity other than its (a) employees, Affiliates, Customer Licensees, Customer Property Managers, Users, and other agents; (b) third-parties legal, financial, tax and security advisors; and (c) in the case of Amadeus also its subprocessors, subcontractors and Third-Party Offering providers; in each case who need access to such Confidential Information in order to enable a Party to fulfill its obligations or exercise its rights under this Agreement in accordance with its terms and which are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.(B) Exceptions to Confidential Information Disclosure.  The obligations set forth in Section 7 (CONFIDENTIALITY)  not apply to the extent that Confidential Information includes information which:  (a) was rightfully known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party, as demonstrated by its written records; (b) was developed by the Receiving Party without any use of the Disclosing Party’s Confidential Information, as demonstrated by its written records; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of the Receiving Party.  Nothing in this Agreement will prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental or judicial entity pursuant to proceedings over which such entity has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party will (x) assert the confidential nature of the Confidential Information to the agency; (y) promptly notify the Disclosing Party in writing of the agency’s order or request to disclose, where legally permissible; and (z) reasonably cooperate with the Disclosing Party, at Disclosing Party’s expense, in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.(C) Return of Confidential Information.  Following termination, upon written request of Disclosing Party, Receiving Party will promptly destroy the Confidential Information of Disclosing Party, including all copies thereof and materials incorporating such Confidential Information, whether in physical or electronic form, and deliver to the Disclosing Party written certification of its compliance with this Section 7.3 signed by an officer of Receiving Party.  Notwithstanding the foregoing, each Party may retain a copy of the other Party’s Confidential Information in such Party’s archived computer backup that was made in accordance with its standard disaster recovery or backup procedures for archival purposes, subject to the terms and conditions of this Agreement including, without limitation, confidentiality obligations set forth herein.(D) Injunctive Relief.  The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
8. PROPRIETARY RIGHTS
   
   (A) Amadeus Intellectual Property.  As between Amadeus and Customer, the Amadeus Intellectual Property belongs to and is retained solely by Amadeus or Amadeus’ licensors and providers.  Customer agrees that, to the extent that the ownership of any contribution by Customer or its employees to the creation of the Amadeus Intellectual Property and Feedback is not by operation of law or otherwise vested in Amadeus, Customer hereby irrevocably assigns and agrees to assign to Amadeus all right, title and interest in and to such Amadeus Intellectual Property and Feedback without the necessity of any further consideration.  To the extent such rights, title and interest cannot be assigned, Customer hereby (a) grants to Amadeus an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense) to fully use, practice and exploit those non-assignable rights, title and interest and (b) agrees to waive and never assert against Amadeus any non-assignable and non-licensable rights, title and interest.  Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Amadeus may reasonably request, to perfect ownership of the Feedback and Amadeus Intellectual Property.(B) Customer Intellectual Property. As between Amadeus and Customer, all right, title and interest and Intellectual Property Rights in the Customer Content and Customer Confidential Information belongs to and is retained solely by Customer.  During the Term, Customer hereby grants Amadues a non-exclusive, worldwide, royalty-free, non-transferable, right and license, with the right to sublicense to third-party providers providing services to Amadeus in connection with the Services, to use, reproduce, display and transmit the Customer Content and, subject to the obligations in Section 7 (Confidentiality), Customer Confidential Information to provide the Services and exercise its rights or perform its obligations under this Agreement.    During the Term, Customer grants Amadeus and providers used by Amadeus to deliver the Services the right to access, obtain and use (through web scraping, web services, XML feed or otherwise) Customer’s rate and other information publicly available on Customer’s website for use in Amadeus’ products and services.(C) Aggregated Statistics.  Amadeus has the right to compile and use data obtained in connection with the use of the Services, including Customer Data, provided that any external use is on an aggregated and de-identified basis (“Aggregated Statistics”).  Aggregated Statistics will not identify Customer, Customer Licensees, Users or include Personal Data.  Aggregated Statistics may be analyzed, evaluated, used, distributed and published by Amadeus.(D) System Data.  Amadeus monitors and collects data regarding the performance, operation, integrity and security of the Services (“System Data”).  As between Amadeus and Customer, all right, title and interest in the System Data belongs to and is retained solely by Amadeus.
9. INDEMNIFICATION.
   
   (A) Amadeus Indemnity.(B) General.  Amadeus, at its expense, will defend Customer from and against all actions, proceedings, claims and demands by a third-party against Customer (a “Third-Party Claim”) alleging that Services infringes such third- party’s Intellectual Property Rights and will pay all direct damages, costs and expenses, including reasonable attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid by Customer due to such Third-Party Claim.  In the event a Third-Party Claim under this Section is made or Amadeus determines such a claim is likely to be made, (i) Customer will immediately upon notice from Amadeus cease use of the applicable Services, and (ii) Amadeus may in its sole discretion and at its option and expense (a) obtain for Customer the right to use the Services, (b) substitute a substantially functional equivalent, non-infringing replacement for such the Services, (c) modify Services to make it non-infringing and substantially functionally equivalent, or (d) to the extent Amadeus determines that options (a) through (c) are not commercially reasonable, terminate this Agreement and refund to Customer any prepaid amounts attributable the period of time between the date Customer was unable to use the Services due to such claim and the remaining days in the then-current Subscription Term.(C) Exclusions.  Notwithstanding anything to the contrary in this Agreement, the obligations in Sections 9.1(a) will not apply with respect to a claim of infringement if such claim is based on, relates to, or arises out of (i) use of infringing Customer Data; (ii) use of Services in combination with any information, software, hardware, processes, network or system not supplied by Amadeus where the claim relates to such combination, (iii) any modification or alteration of the Services other than by Amadeus, (iv) Customer’s continued use of Services after Amadeus notifies Customer to discontinue use because of an infringement claim or Customer has not upgraded from a deprecated version of the Services in accordance with an applicable Service Order, (v) any Customer System; (vi) Customer’s violation of applicable law; (vii) Third-Party Offerings; (viii) use of Open Source Software; (ix) a patent infringement or similar claim where the party bringing the claim or asserting the patent right is a Non-Practicing Entity, and (x) Customer’s use or alleged use of Services other than as permitted under this Agreement.(D) Sole Remedy.  THE FOREGOING STATES THE ENTIRE LIABILITY OF AMADEUS WITH RESPECT TO THE ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICES, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF AMADEUS WITH RESPECT THERETO.(E) Customer Indemnity.  Customer, at its expense, will defend Amadeus and its Affiliates (“Amadeus Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Content or a Customer System (and the exercise by Amadeus of the rights granted herein with respect to each of the foregoing) infringes, misappropriates or violates any third-party’s Intellectual Property Rights or any rights of privacy; (b)  Customer’s breach of Sections 7 (Confidentiality); (c) a Customer Security Incident; or (d) a violation of law, regulation or Amadeus policy by or willful misconduct of Customer, Customer Licensees, Users or Customer’s agents.  Customer will pay all damages, costs and expenses, including reasonable attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) incurred by the Amadeus Indemnified Parties from any such Third-Party Claim.(F) Indemnity Procedures.  Each Party’s respective indemnification obligations under this Section are conditioned upon (i) the indemnifying Party being promptly notified in writing of any claim under this Section, (ii) the indemnifying Party having the sole and exclusive right to control the defense and settlement of the claim, and (iii) the indemnified Party providing reasonable assistance (at the indemnifying Party’s expense and reasonable request) in the defense of such claim.  The indemnifying Party will not, without the prior written consent of the indemnified Party, which consent will not be unreasonably withheld, settle any claim in a manner that (i) admits to liability on the part of the indemnified Party, (ii) restricts the rights of the indemnified Party, or (iii) provides for the payment of monetary damages as to which the indemnified Party will not be indemnified in full. The indemnified Party may, at its own expense, engage separate counsel to advise such indemnified Party regarding a Claim and to participate in the defense of the claim, subject to the indemnifying Party’s right to control the defense and settlement.
10. LIMITATION OF LIABILITY(A) No Consequential Damages.  NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SERVICES OR THE RESULTS THEREOF.  AMADEUS WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.(B) Limitation of Liability.  EACH PARTY’S MAXIMUM LIABILITY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A SERVICE ORDER IN THE AGGREGATE AND ACROSS THE ENTIRE SERVICE ORDER TEM WILL NOT EXCEED THE AVERAGE ANNUAL AMOUNTS PAID BY CUSTOMER TO AMADEUS PURSUANT TO SUCH SERVICE ORDER CALCULATED BY DIVIDING THE AMOUNTS PAID BY THE CUSTOMER BY THE DATE OF THE CLAIM BEING MADE BY THE TOTAL NUMBER OF ELAPSED MONTHS OF THE TERM OF THE SERVICE ORDER (UP TO ITS TERMINATION OR EXPIRATION) AND MULTIPLYING SUCH AMOUNTS BY TWELVE (12) SO AS TO CREATE AN ANNUALIZED FIGURE (the “Liability Cap”). ANY AMOUNTS PREVIOUSLY PAID BY WAY OF LIABILITIES OR INDEMNITIES UNDER THE SERVICE ORDER SHALL BE DEDUCTED FROM THE CALCULATION OF THE REMAINING LIMIT OF LIABILITY.(C) Exclusions.  The Parties agree and acknowledge that the limitations on liability set forth in Section 10.1 (No Consequential Damages) and 10.2 (Limitation of Liability) will not apply to liability for: (i) the amounts payable to Amadeus under this Agreement, (ii) a Party’s indemnity obligations under Section 9 (Indemnification), (iii) a Customer Security Incident; (iv) breach of Section 2.3 (Restrictions); (v) personal injury or physical, tangible property damage, or (iv) willful misconduct.(D) Essential Purpose.  Customer acknowledges that the terms in this Section 10 (LIMITATION OF LIABILITY) WILL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (B) EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE, AND (C) WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
11. TERM AND TERMINATION.(A) Term.  The term of this MSSA commences on the Effective Date and will continue until the expiration or termination of all Service Order Term(s), unless earlier terminated as provided in this MSSA (the “MSSA Term”). Except as otherwise specified in the applicable Service Order, Subscription Terms shall automatically renew for additional periods equal to the expiring Subscription Term unless one Party gives the other written notice of non-renewal at least ninety (90) calendar days prior to the expiration of the then current Subscription Term. Unless otherwise specified in the Service Order, the Charges under each Service Order will increase by up to five percent (5%) annually.  Notwithstanding anything to the contrary in the Service Order, Amadeus may increase any pass-through fees or fees from Third Party Offerings providers upon thirty (30) days’ prior written notice.(B) Termination for Cause.  A Party may terminate a Service Order upon written notice to the other Party in the event the other Party: (a) commits a material breach of the applicable Service Order and does not remedy such breach within thirty (30) calendar days after receipt of notice from the non-defaulting Party, (b) makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business, and such termination will occur immediately upon notice; or (c) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within thirty (30) calendar days after filing or admits its inability to pay its debts as they mature.  In the event Customer commits a material breach of the MSSA does not remedy such breach within thirty (30) calendar days after receipt of notice from Amadeus, Amadeus may terminate the MSSA.  Upon any termination for cause by Amadeus, Customer will pay all Charges for the remainder of the Service Order Term(s).  Customer’s sole rights to terminate any Service Order are set forth in this Section 11.2.(C) Effects of Termination.  Upon expiration or termination of this MSSA, all Service Orders will terminate.  Upon expiration or termination of a Service Order or Subscription Term of a Service, (a) Customer’s use of and access to the applicable Service(s) and the performance of all Professional Services will cease; and (b) all charges and other amounts under any outstanding Service Order (including any Change Orders thereunder).  If Customer requests a copy of Customer Data within thirty (30) days of the effective date of such expiration or termination, Amadeus will provide the Customer Data to Customer in an electronic format determined in Amadeus’ reasonable discretion.  Amadeus reserves the right to charge a reasonable fee for data exports.  Amadeus will have no other obligation to maintain or provide any Customer Data following expiration or termination of the MSSA and will delete all Customer Data in its systems in accordance with Customer’s written request or Amadeus’ standard procedures.(D) Survival.  The following Sections of the MSSA, and such other provisions of the Agreement that by their nature would be intended to be apply following any expiration or termination of this Agreement: 1 (Agreement Structure), 2.3 (Restrictions), 2.4 (Third Party Services and Third Party Offerings), 5 (Security And Credentials), 7.4 (Injunctive Relief), 8 (Proprietary Rights), 9 (Indemnification), 10 (Limitation Of Liability), And 11 (Term And Termination), 12 (Miscellaneous), other than 12.6.
12. MISCELLANEOUS(A) Notices; Updates.  Amadeus may give notice to Customer by means of a general notice through the Subscription Service interface, electronic mail to Customer’s email address on record with Amadeus, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with Amadeus. Customer may give notice to Amadeus by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Amadeus at the address set forth on the applicable Service Order; provided that in each case, an email to Hospitality.Legal@amadeus.com is required in addition to any other method of delivered notice. Notice will be deemed to have been given upon the earlier of (i) receipt or, (ii) two (2) business days after mailing. All communications and notices to be made or given pursuant to this Agreement will be in the English language.(B) Governing Law.  The law governing this Agreement will be as follows: (i) the laws of the State of New York (USA), where Amadeus Hospitality, Inc. is the Amadeus legal entity under this MSSA; (ii) the laws of England and Wales where Amadeus Hospitality UK Limited is the Amadeus legal entity under this MSSA; (iii) the laws of the Kingdom of Spain, where Amadeus Hospitality Europe S.L. is the Amadeus legal entity under this MSSA; and (iv) the laws of Singapore, where Amadeus Hospitality Asia Pacific Pte. Ltd. is the Amadeus legal entity under this MSSA, in each case without giving effect to the conflict of law principles that would otherwise apply.  The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.(C) Dispute Resolution.  Any dispute arising out of or in connection with this Agreement (“Dispute”) will be resolved pursuant to this Section 12.3. The Parties will attempt in good faith to resolve a Dispute informally for at least sixty (60) days. Each Party agrees that it will continue performing its obligations under this Agreement while any Dispute is being resolved in good faith, provided that this provision will not operate as extending the Term or prohibiting or delaying a Party’s exercise of any right of termination or other remedy permitted under this Agreement. Thereafter, either Party may refer the Dispute for binding arbitration administered by the following arbitration entities (each, an “Arbitral Entity”) as follows:(i) where Amadeus Hospitality, Inc. is the Amadeus legal entity under this MSSA, arbitration will be administered the American Arbitration Association in accordance with its Commercial Arbitration Rules and the place of arbitration will be New York, New York;
    (ii) where Amadeus Hospitality UK Limited is the Amadeus legal entity under this MSSA, arbitration will be administered by the International Chamber of Commerce (“ICC”) under their Rules of Arbitration, and the place of arbitration will be London, England;
    (iii) where Amadeus Hospitality Europe S.L. is the Amadeus legal entity under this MSSA, arbitration will be administered by the ICC under their Rules of Arbitration, and the place of arbitration will be Madrid, Spain; and
    (iv) where Amadeus Hospitality Asia Pacific Pte. Ltd. is the Amadeus legal entity under this MSSA, arbitration will be administered by the Singapore International Arbitration Centre under their Arbitration Rules and the place of arbitration will be Singapore.The arbitration will be conducted by a tribunal consisting of three (3) arbitrators, and each of the Parties will have the right to nominate one of these arbitrators, such nominations to be made within thirty (30) calendar days of referral of the dispute to arbitration. The third arbitrator (who will serve as the chairman of the tribunal) will be nominated by agreement between the two (2) Party-nominated arbitrators within twenty (20) calendar days of the confirmation of the appointment of the second of them by the applicable Arbitral Entity. Failing such agreement, this third arbitrator will be appointed by the Arbitral Entity.   The language of the arbitration will be English. Judgment on the award rendered by the arbitrators may be entered in any court of competent jurisdiction.  Notwithstanding the foregoing, Amadeus has the right to pursue equitable relief in the courts located in the applicable place of arbitration (listed above) and Customer agrees to the exclusive jurisdiction and venue of such courts.(D) Duty to Mitigate.  Each Party must use commercially reasonable efforts to mitigate its damages to the extent within its reasonable control and consistent with the Parties’ respective performance obligations under this Agreement.(E) Publicity. Amadeus may reference and use Customer’s name and trademarks and disclose the nature of the Services provided hereunder in each case in its business development and marketing efforts, including its web site, and may issue a press release upon the execution of this Agreement.(F) Export.  The Services utilizes software and technology that may be subject to United States and foreign export controls. Customer agrees to comply strictly with all applicable export laws.  Customer represents and warrants that it is not located in, under the control of, or a national or resident of an embargoed country or designated national under United States or other applicable law.(G) Waiver.  No term or provision of this Agreement will be considered waived by either Party, and no breach excused by either Party, unless such waiver or consent is in writing signed on behalf of the Party against whom the waiver is asserted.  No consent by either Party to, or waiver of, a breach by either Party, whether express or implied, will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either Party.

    (H) Severability.  If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision will be amended to achieve as closely as possible the economic and legal effect of the original term and all other provisions will continue in full force and effect.

    (I) Assignment.  Customer may not assign its rights or delegate its obligations under this Agreement to any third-party, whether voluntarily or by operation of law or otherwise (including in connection with any merger or acquisition involving Customer), without the prior written consent of Amadeus, and subject to any documentation required by Amadeus and Customer paying any applicable costs or charges due to such assignment.  Customer must provide written notice to Amadeus any time there is a change in the brand, management company, owner of Customer or owner of a Customer Property and in such case, Customer must either (i) provide evidence reasonably acceptable to Amadeus that the new brand, management company, or owner (as applicable) has agreed to assume all obligations hereunder, or (ii) immediately pay all Charges that would have otherwise been due for the remainder of the Service Order Term(s).  With respect to subsection (ii) in the immediately preceding sentence, the amount of transactional fees due will be the average of the prior twelve (12) months’ (or such shorter duration if less than twelve (12) months have elapsed) transactional fees multiplied by the number of months remaining in the applicable Service Order Term(s).  Any purported assignment or transfer in violation of this section may be deemed void by Amadeus.

    (J) Relationship of the Parties.  Amadeus is an independent contractor to Customer. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties.  Neither Party has the authority to bind the other or to incur any obligation on its behalf.  There are no third-party beneficiaries to this Agreement.

    (K) Force Majeure. Except for Customer’s payment obligations, neither Party will be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; an epidemic or pandemic declared by the World Health Organization; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such Party of this Agreement); or any other event beyond the reasonable control of the Party whose performance is to be excused.

    (L) Joint Drafting.  The Parties have participated jointly in the negotiation and drafting of the Agreement. In the event an ambiguity or question of intent or interpretation arises, the Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

    (M) Entire Agreement.  This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereunder and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, quotations, responses to requests for proposals, information or quotes (RFPs/RFIs/RFQs) and agreements, whether written or oral.  No amendment to, or change, waiver or discharge of, any provision of this Agreement will be valid unless in writing and signed by an authorized representative of each Party.  Notwithstanding anything to the contrary in this Agreement, signature of the Service Order or MSSA by Customer constitutes acceptance of the online terms and any posted updates, modifications, or additions thereto.

 

MSSA Appendix 1

Definitions

“Affiliate” means any entity, now or hereafter existing that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means at least 51% ownership in and the direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise. For clarity, non-Affiliate owners and managers of Customer Properties are not considered Affiliates under this Agreement.

“Aggregated Statistics” is defined in Section 8.3 (Aggregated Statistics).

“Amadeus” means the Amadeus entity listed as “Amadeus” in the Service Order.

“Amadeus Indemnified Parties” is defined in Section 9.2 (Customer Indemnity).

Amadeus Intellectual Property means all right, title and interest in the Services, Documentation, Amadeus developments/deliverables, System Data, Feedback and any of Amadeus’ Confidential Information or other Amadeus materials furnished or made available to Customer or any third-party at the request of or for the benefit of Customer, and all modifications and enhancements thereof, and other Amadeus materials including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing.

“Application Programming Instance” or “API” means any connection between computer systems, including between Customer’s systems and Subscription Services, or third-party connections between Customer’s systems and/or Subscription Services.

“Business Intelligence Data” or “BI Data” means data stored, posted, displayed, or otherwise made available, through a Subscription Service Module for business intelligence services (for example, RevenueStrategy360™, Agency360®, Demand360®).

“Change in Tax Law” means any new (or change in the application of any) Tax law, enactment, order, regulation, directive or other similar instrument.

“Change Order’’ is defined in the Change Control Policy.

“Confidential Information” means any and all non-public technical and non-technical information disclosed by one Party to the other Party in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, product specifications or configurations, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (c) proprietary or confidential information of any third-party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (d) the terms (but not existence) of this Agreement and any Service Order. Confidential Information also includes all summaries and abstracts of Confidential Information. Confidential Information of Amadeus will include the Services and pricing terms. Confidential Information of Customer will include the Customer Data.

“Customer” means the party listed in the Service Order as “Customer”.

“Customer Content” means Customer’s trademarks, tradenames, logos, images, information, content and Customer Data provided by or on behalf of Customer in connection with the Services.

“Customer Data” means data submitted by or on behalf of a Customer Licensee or User into a Subscription Service, and all processed outputs of such data by a Subscription Service, expressly excluding System Data, BI Data and Media Data.

“Customer Licensee” means Customer and, unless otherwise specified in the Service Order, a Customer Property listed in the applicable Service Order.

“Customer Property” means each property (for example, hotel, extended stay facility, etc.) that is: (i) owned and managed by Customer or an Affiliate of Customer; (ii) owned by Customer or an Affiliate of Customer but managed by a Customer Property Manager, (iii) owned by a third-party, is a franchisee of Customer or an Affiliate of Customer and is managed by Customer, or (iv) owned by a third-party who is a franchisee of Customer or an Affiliate of Customer and managed by that third-party or another Customer Property Manager. A list of “Customer Properties” for each Service will be set forth or referenced in the applicable Service Order.

“Customer Property Manager” means any third-party property manager of a Customer Property. Each Customer Property Manager must be specified in an applicable Service Order with respect each Customer Property that it manages.

“Customer Security Incident” means any action or inaction by Customer resulting in unauthorized access, acquisition, or use of Customer Data, including any data breach as defined under applicable law.

“Customer System” means Customer’s networks, internal website(s), servers and other equipment and software used in the conduct of Customer’s business, including all of Customer’s third-party systems and software (for example, any internal or external revenue management system (RMS) or loyalty system of Customer or a third-party in support of Customer).

“Data Processing Addendum” means the Amadeus data processing addendum applicable to Customer, which is listed in Exhibit B to the Service Order.

“Disclosing Party” means the Party disclosing Confidential Information hereunder.

“Documentation” means, for each Subscription Service, specifications, user guides and help files made available by Amadeus for use with such Subscription Service, as may be updated from time to time by Amadeus.

“Feedback” means all evaluations, ideas, feedback and suggestions made by Customer to Amadeus in connection with this Agreement and all Intellectual Property Rights therein.

“Income Tax” refers any tax based upon, measured by, or calculated with respect to net income or profits or net receipts (including, but not limited to, any capital gains, minimum Tax or any Tax on items of Tax preference, but not including sales, use, real or personal property, or transfer or similar Taxes).

“Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, whether or not registered but including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.

“Media Data” means the data in Amadeus’ media accounts with third parties, such as Google Analytics and Facebook.

“Non-Practicing Entity” means a person or entity that acquires or enforces patent rights against accused infringers but does not manufacture or sell or supply services based on the patents in question.

“Open Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).

“Personal Data” is defined in MSSA Appendix 2 (Data Processing Addendum).

“Professional Services” means implementation, configuration, development work, training or consulting services that Amadeus may perform as described in a Change Order or Service Order executed by the parties.

“Receiving Party” means the Party receiving Confidential Information in connection herewith.

“Services” means, collectively, the Subscription Services and the Professional Services.

“Service Order” means an ordering document for one or more Services that is executed hereunder by the Parties under this Agreement, and including without limitation amendments, modifications, Change Orders, supplements and addenda thereto.

“Service Order Term” means the term of an applicable Service Order, as specified therein.

“Subscription Services” means those activities to be performed by Amadeus to operate, maintain and support the applicable Amadeus product, as set forth in the applicable Service Order and the applicable Amadeus Policies.

“Subscription Term” means the subscription period for Customer’s use of the Services, as set forth in a Service Order. If a Subscription Term is not expressly identified for a Service Order, then it will be deemed to be the same term as the Service Order Term.

“System Data” is defined in Section 8.4 (System Data).

“Tax” or “Taxes” refers to any and all federal, state, local and foreign taxes, including, without limitation, gross receipts, income, profits, use, occupation, value added, sales, goods and services (or any other equivalent tax by whatever name or acronym it is known), transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, assessments, governmental charges and duties together with all interest, penalties and additions imposed with respect to any such amounts and any obligations under any agreements or arrangements with any other person with respect to any such amounts and including any liability of a predecessor entity for any such amounts.

“Third-Party Claim” is defined in Section 9.1(a) (General).

“Third-Party Offerings” means certain technology, software or services delivered, developed, processed or performed by third-parties that interoperate with a Subscription Service, whether licensed or purchased by or on behalf of Customer Licensee under a Service Order or applicable third-party terms or independently by a Customer Licensee or any User. For clarity, Third-Party Offerings do not constitute Services under this Agreement.

“User” means any individual person who is granted access to a Subscription Service through an account by, or at instruction of, Customer Licensee using approved and validated credentials pursuant to Section 5.3 (Credentials) of the Agreement.

“Withholding Tax” refers to any deduction, duty or fee levied at source of income by the party making a payment (payer) from the income due to the recipient/service provider (payee), being the amount withheld delivered directly to the competent payer government.