The order form or order confirmation form (the “Order Form”) executed by Subscriber and Amadeus Hospitality Americas, Inc. or any of its subsidiaries or affiliates or an authorized reseller (collectively “Amadeus”) which confirms Subscriber’s subscription, and fees, if applicable (“Subscription Fees”), for use of any of Amadeus’ proprietary online applications branded as HotSOS, PMWorks, and REX (the “Service Optimization Application(s)”) and these Amadeus Service Optimization Service Terms (“Service Terms”) form a binding agreement (the “Agreement”) between Amadeus and Subscriber and governs Subscriber’s use of the Service Optimization Application(s) and associated Amadeus mobile and computer device client software (“Client Software”) used to access the Service Optimization Application(s) (collectively, “Service Optimization Products”). Subscriber means the business entity named on the Order Form.
If Subscriber purchases professional services (“Services”) on the Order Form and should Subscriber cancel any scheduled Service for convenience within thirty (30) days of the scheduled date of such Service, and Amadeus is unable to re-book the time with another customer, Amadeus shall have the right to assess Subscriber a cancellation fee. Such cancellation fee shall be eighty percent (80%) of the total price of the scheduled Service, as well as any non-refundable airline fees or other nonrefundable travel and related expenses.
- USER SUBSCRIPTIONS.Use of the Service Optimization Products is licensed, not sold. Subject to compliance with this Agreement, Amadeus grants Subscriber, a nontransferable (except for assignment of this Agreement under Section 15), nonexclusive right to access and use those Service Optimization Products described on the Order Form, solely for the duration of the Subscription Term set forth in the Order Form and only for Subscriber’s internal business purposes of operating a facility owned or managed by Subscriber and for which applicable subscription fees have been paid to Amadeus (an “Authorized Facility”). The Service Optimization Applications may only be used online at the applicable URL (the “Web Site”) and Service Optimization Products may only be used by employees and agents of Subscriber who are authorized by Subscriber to access the Service Optimization Applications on Subscriber’s behalf (“Authorized Users”). The maximum number of Authorized Users for each Service Optimization Products licensed or subscribed to by Subscriber shall not exceed the number authorized in the Order Form. Each Authorized User must have a unique user ID and password combination for using the Service Optimization Applications (“User Account”). Multiple individuals shall not share a User Account. New User Accounts may be set up for new Authorized Users in replacement of User Accounts that have been de-activated for individuals who have terminated employment with Subscriber or otherwise changed job status or function and no longer require use of Service Optimization Products.
- SUBSCRIPTION TERM. Amadeus may terminate the Subscription Term, or suspend Subscriber’s subscriptions to Service Optimization Products: i) if applicable undisputed Subscription Fees have not been paid; or ii) Subscriber is in material breach of this Agreement. Amadeus will promptly notify Subscriber of any suspension and will work with Subscriber in good faith to resolve the issue(s) which prompted suspension. Amadeus reserves the right to assess a reconnection fee in the event the suspension results from Subscriber’s failure to pay the applicable Subscription Fees or Subscriber’s intentional violation of this Agreement. Termination and/or suspension is without prejudice to other remedies available to Amadeus for any violation of this Agreement by Subscriber. Upon termination of the Subscription Term, Subscriber will immediately discontinue use of Service Optimization Products and, at Amadeus’ option, return or destroy all documentation. Within ten (10) days of termination, Subscriber will remove any software provided by Amadeus in connection with Service Optimization Products from any devices owned or controlled by Subscriber.
- AVAILABILITY. Amadeus will make Service Optimization Applications available 24 hours a day, 7 days a week, except for: (a) planned downtime (which will be scheduled to the extent practicable with at least 8 hours notice (posted on the Amadeus Web Site); or (b) any unavailability caused by circumstances beyond the reasonable control of Amadeus, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Amadeus), or Internet service provider failures or delays.
- Subscriber shall not: i) remove or alter any copyright notices or other proprietary legends contained in any Amadeus Product; ii) disassemble, decompile, or reverse engineer any Amadeus Product; iii) create Internet “links” to any Amadeus Product; iv) reproduce, distribute, “frame”, or “mirror” any part of any Amadeus Product on any other computer system; v) access or copy Amadeus Product in order to build a similar or competitive product or service; vi) make any Amadeus Product accessible or available to any third party other than for management of an Authorized Facility; vii) use any Amadeus Product to operate a service bureau or otherwise provide Amadeus Product services to any third party other than for management of an Authorized Facility; viii) copy, sell, redistribute, or otherwise transfer Service Optimization Products, Subscriber’s access thereto, or any materials provided to Subscriber in connection with Service Optimization Products; or ix) use Amadeus Products in violation of any law or regulation, including United States export control laws and associated regulations. Subscriber is responsible for all activity occurring through its User Accounts. Subscriber represents and warrants that all registration information provided by Subscriber is true, complete, and accurate, and Subscriber will notify Amadeus of any changes and keep such information true, complete and accurate for the Subscription Term. Subscriber shall promptly notify Amadeus of any known or suspected breach of security or use of Service Optimization Products in breach of this Agreement (including unauthorized use of User Accounts). Subscriber shall promptly notify Amadeus of any known or suspected breach of security or use of Amadeus Products in breach of this Agreement or breach of security (including unauthorized use of User Accounts).
- FEES AND PAYMENT.Unless otherwise set forth in the Order Form, the Subscription Fees for the Service Optimization Applications will be Amadeus’ prevailing subscription fees and Subscription Fees for the Initial Subscription Term will be invoiced upon execution of the Order Form and be due thirty (30) days thereafter. All orders are non-cancellable and all Subscription Fees are nonrefundable. All sales will be billed in U.S. dollars unless otherwise specified in the Order Form. Undisputed past due amounts bear interest at 1.5% per month or the maximum permitted by law, whichever is less. All fees are exclusive of, and Subscriber will pay, all taxes, levies, or duties imposed by taxing authorities, excluding taxes based solely on Amadeus’ income.
- SUPPORT SERVICES.Amadeus will provide support for the Subscription Products in accordance with the applicable Subscription Product Support Procedures and Guidelines (“Support Policy”), as updated from time to time, which are available upon request.
- AMADEUS RIGHTS. Amadeus and its third party licensors own all right, title and interest in: i) Service Optimization Products and all intellectual property embodied therein (including all software text, graphics, images, audio and visual information, online tutorials, documents, specifications, and materials made available to Subscriber); and ii) any recommendations, suggestions, enhancement requests, ideas, or other information related to any of Amadeus’ products or services (“Feedback”). Subscriber hereby grants Amadeus a non-exclusive fully paid-up royalty-free license to any Feedback provided by Subscriber and acknowledges Amadeus is free to use any such feedback for any purpose without payment or restriction.
- WARRANTIES. Amadeus warrants that Service Optimization Products will perform substantially in conformance with the online help documentation under normal use and circumstances. EXCEPT FOR THE EXPRESSED WARRANTIES DESCRIBED IN THIS SECTION, AMADEUS DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
- LIMITATION OF LIABILITY.Each party will be liable only for actual direct damages incurred as a direct result of either party’s gross negligence, willful misconduct, or failure to exercise reasonable care in providing Service Optimization Products. Neither party has liability for any indirect, consequential, or punitive loss, damage or expense, including any loss of data, revenue, profits or use, even if advised of the possibility of such loss or damage. Except for Amadeus’ liability pursuant to section 12 in no event will either party’s aggregate liability exceeds the fees paid, or payable, by Subscriber for the then-current Subscription Term.
- CONFIDENTIALITY. Service Optimization Products and the associated components (including but not limited to software code, routines, algorithms, database structure and associated triggers and stored procedures, data dictionaries, user interface conventions and design patterns), corresponding documentation, the terms and pricing under this Agreement and any other business, operational or technical information provided by Amadeus hereunder that is marked or otherwise identified as confidential (or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure), (collectively “Confidential Information”) is valuable information that is proprietary to Amadeus (or to the third party licensors) and represents and constitutes trade secrets and unpublished copyrighted material. Subscriber agrees to maintain the confidentiality of such Confidential Information and to only use such information to carry out its rights and obligations under this Agreement. For avoidance of doubt, Amadeus’ business and technical methodologies, procedures, techniques and processes shall also constitute Confidential Information hereunder. Amadeus agrees to maintain the confidentiality of all business, operational and other information provided by Subscriber to Amadeus hereunder that is marked or otherwise identified as confidential or proprietary (or that reasonably should be understood to be confidential or proprietary given the nature of the information and the circumstances of disclosure), (also referred to herein as Confidential Information), and will only use such Confidential Information to carry out its rights and obligations under this Agreement
The confidentiality obligations of the parties set forth in this section shall not apply to any material or information that (i) is or becomes a part of the public domain through no act or omission of the receiving party, (ii) is independently developed by the receiving party without use or reference to the disclosing party’s Confidential Information, or (iii) is disclosed to the receiving party by a third party that, to the receiving party’s knowledge, was not bound by a confidentiality obligation to the disclosing party.
If the receiving party is required by a lawful order from any court, or any body empowered to issue such an order, to disclose the Confidential Information of the disclosing party, the receiving party shall promptly notify the disclosing party of any such order, so that the disclosing party may take reasonable steps to limit further disclosure, including obtaining a protective order or other reasonable assurance that confidential treatment will be accorded the Confidential Information. If, in the absence of a protective order, the receiving party is compelled as a matter of law to disclose the Confidential Information of the disclosing party, the receiving party will disclose only the part of such Confidential Information as is required by law to be disclosed.
- INFRINGEMENT INDEMNIFICATION. Amadeus will defend or settle, at its own expense, any action brought against Subscriber alleging any Service Optimization Products or Subscriber’s use of any Service Optimization Products infringes any patent, copyright or other proprietary right enforceable in the United States. Amadeus will pay all costs and damages finally awarded in any such action. Amadeus’ obligations under this section are subject to Subscriber: i) providing prompt written notice of the claim; ii) granting Amadeus sole control of the defense and settlement of the claim; iii) not performing any action prejudicial to Amadeus’ ability to defend the claim; and iv) providing cooperation and information reasonably requested by Amadeus, at Amadeus’ expense. Amadeus has no liability for any claim based on use of Amadeus Product: i) in violation of this Agreement; or ii) in combination with other software or hardware not provided by, or specified by, Amadeus. If use of any Amadeus Product is enjoined despite Amadeus’ commercially reasonable efforts to procure rights to continue operating the Amadeus Product or modify the Amadeus Product to make it non-infringing, Amadeus may terminate the Subscription Term and issue a refund of a prorated portion of the Subscription Fee paid that is applicable to the portion of the Subscription Term following termination. This Section states Amadeus’ entire liability for any claim of infringement of any intellectual property rights of any kind.
- AMENDMENT. Amadeus may revise these Service Terms from time to time at Amadeus’ discretion by placing revised Service Terms on the Web Site and providing notice to Subscriber as described in Section 14. The revised Service Terms will become effective and replace previous versions only upon the next renewal of the Subscriber’s Subscription Term.
- NOTICE. Amadeus may provide notices to Subscriber by email, mail, or courier, in each case to Subscriber’s email or postal address as recorded in Amadeus’ account information. Notices to Amadeus must be sent by mail or courier to Amadeus Hospitality Americas, Inc., 75 New Hampshire Avenue, Portsmouth NH 03801, and Attention: CFO. Notices sent by email will be effective 24 hours after emailing unless Amadeus receives notice that the email was not delivered. Other Notices are effective upon receipt.
- GOVERNING LAW AND ARBITRATION. This Agreement will be governed by the laws of the United States and of the State of New Hampshire, excluding its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute as to the interpretation, enforcement, breach, or termination of this Agreement will be settled by binding arbitration under the Rules of the American Arbitration Association by three arbitrators appointed in accordance with the Rules in Portsmouth, New Hampshire. All other disputes regarding this Agreement or Amadeus Product shall be subject to the exclusive jurisdiction of courts within the State of New Hampshire. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration.
- MISCELLANEOUS. This Agreement consisting of these Service Terms and the attached addendum and the applicable Order Form are the final and complete agreement between the parties with respect to Subscriber’s use of the Amadeus Product. This Agreement supersedes all oral and written communications regarding these matters. This Agreement may not be assigned by either party without the prior written consent of the other party, such consent not to be unreasonably withheld. Amadeus may assign this Agreement with advance written notice to Subscriber or to an affiliate or a successor in interest of the Amadeus business. Any purported assignment in violation of this Section shall be void. Except for timely payment of Fees, neither party shall be responsible for any failure to perform its obligations if performance is prevented or delayed by force majeure conditions or any cause beyond its reasonable control. Nothing in this Agreement creates any agency, fiduciary, joint venture or partnership relationship between Amadeus and Subscriber. The failure of Amadeus to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision.