Effective Date: [August 13, 2024]
These TMC Alliance and Hosted Reseller Terms and Conditions (the "Terms and Conditions") apply to any agreement entered into by and between a Partner and Deem that incorporates these Terms and Conditions by reference. By executing an agreement with Deem that incorporates these Terms and Conditions or by registering for products or services from Deem that incorporate these Terms and Conditions, you agree to be bound by and accept these Terms and Conditions, as modified by any such agreement. On the other hand, the execution of an agreement with Deem for products and services that do not include the full scope of product and services described in or covered by these Terms and Conditions does not provide a Partner with rights to access, use or resell such out of scope products and services. To obtain rights to access, use or resell such out of scope products and services, Partner must enter into an agreement with Deem for such out of scope products and services. These Terms and Conditions apply only if and to the extent that Partner has entered into an agreement with Deem that incorporates these Terms and Conditions by reference. Unless otherwise defined in these Terms and Conditions, capitalized terms used in these Terms and Conditions will have the same meanings as set forth in the applicable agreement.
1.1 Definitions
As used in these Terms and Conditions, the following terms shall have the following meanings:
"Agreement” shall mean the agreement entered into by and between a Partner and Deem that incorporates these Terms and Conditions by reference.
"Active User" shall mean each unique End User account that uses the Deem Services to book, modify or cancel a Travel Transaction (including via TravelFusion, Southwest or online automated ticket exchange functionality).
"Client" means a third party who is a recipient of the Hosted Services solely for such Client's own internal business purposes and not for distribution, further sublicensing, or other commercial reselling purposes.
"Client Agreement" means a separate agreement between Partner and a Client for the provision by Partner to the Client of Hosted Services.
"Customer(s)" means a third-party licensee of Deem Services directly under a Customer Agreement and approved by Deem for such purposes.
"Customer Agreement" means a written agreement between Deem and a Customer whereby the Customer has been granted the non-exclusive right to use Deem Services for such Customer's internal business purposes, as set out in the applicable Order Form.
“Deem Group Companies” means(i) Deem’s wholly-owned direct and indirect subsidiaries; (ii) Deem’s direct and indirect holding companies; and (iii) the wholly-owned direct and indirect subsidiaries of the holding companies referred to in Subsection (ii) of this definition. “Deem Group” will be construed accordingly. For an avoidance of any doubt, this definition shall include Deem itself.
"Deem Services" means Deem Software and any Premium Service made available by Deem and provided to Partner hereunder, as may be identified in an applicable Statement of Work. Deem may modify Deem Services at any time. Deem Service will be construed accordingly.
“Deem Software” shall mean the current Deem hosted service, or any successor service, which provides a framework for defining, implementing, and enforcing corporate rules for user-centric business services. Deem Software includes any hardware or software managed by Deem for the provision of the Deem Service. For purposes of clarification, Deem Software does not include any hardware or software provided by any Customer, Vendor, or any third party, including, without limitation, any Customer LAN or WAN, or any Customer’s Internet connection or the Internet.
"End User" means any Client employee or independent contractor who is enrolled by a Client to use Deem Services.
"Fees" means any fees which become due under the Agreement, and applicable SOWs.
"Government Entity" means (i) any national, state, regional, or local government (including, in each case, any agency, department, or subdivision of such government), and any government agency or department; (ii) any political party;(iii) any entity or business that is owned or controlled by any of those bodies listed in subcategory (i) or (ii); or (iv) any international organization, such as the United Nations or the World Bank.
"Government Official" means (i) any director, officer, employee, agent, or representative (including anyone elected, nominated, or appointed to be a director, officer, employee, agent, or representative) of any Government Entity, or anyone otherwise acting in an official capacity on behalf of a Government Entity; (ii) any political party, political party official, or political party employee; (iii) any candidate for public or political office; (iv) any royal or ruling family member; or (v) any agent or representative of any of those persons listed in subcategories (i) through (iv).
"Hosted Services" means Partner's provision of the Deem Services master domain(s) assigned to Partner for Clients' access and use in accordance with these Terms and Conditions. Deem Services may only be made available to the Clients during a set term and may only be accessed by the Client through a sub-domain of Partner's master domain.
"Intellectual Property Rights" means all patents, patent rights, patent applications, copyrights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights, as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Order Form” shall mean any order form governed by the respective Agreement and executed by the parties that sets forth the pricing, services, term, number of End Users, and any other terms, under which Customer has ordered products or services from Deem.
"PNR" means a passenger name record in a computer reservation system that includes a reservation for travel related goods and services.
"Premium Service" means any current or future service made available as an offering priced and sold separately as part of Deem Services. Clients shall only be entitled to receive those Premium Services expressly outlined in the applicable SOW or a separate document, governed by these Terms and Conditions.
"Statement of Work" or "SOW" means a separate document, governed by the Agreement by which Partner orders Deem Services.
"Term” means the defined term within the Agreement.
“Trade Secret” means information, including a formula, pattern, compilation, program device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
"Travel Transaction" means any booking of air, car, or hotel that results in the creation of a PNR, and any change of booking.
2.1 Development, Marketing Support and Promotional License
Subject to the terms of the Agreement (including Partner's obligation to pay any Fees due), Deem grants Partner a nonexclusive, nontransferable license to use Deem Services provided under the Agreement to provide prototype demonstrations and to have trained employees demonstrate Deem Services to potential Clients.
2.2 Limitations on Use; Title
Partner shall not use or duplicate Deem Services for any purpose other than as specified in the Agreement or make Deem Services available to unauthorized third parties. Partner shall not make copies or make media translations of the applicable portions of Deem Services, in whole or in part without Deem's prior written approval. Partner agrees that if it comes into possession of any source code for any Deem product it will immediately deliver all copies of such source code to Deem. Partner shall not: (a) use Deem Services for its internal data processing or for processing customer data other than of Partner's Clients; (b) rent, electronically distribute, or timeshare Deem Services or market Deem Services by interactive cable, Internet, or remote processing services other than to potential Clients as expressly provided herein or otherwise distribute Deem Services; or (c) cause or permit the reverse engineering, disassembly, or decompilation of Deem Services. Deem shall retain all title, copyright, and other proprietary rights in Deem Services and any modifications or translations thereof. Deem will at all times retain all right, title and interest in and to Deem Services, other than those specified in the Agreement.
2.3 Marketing Practices
In marketing Deem Services, Partner shall:
a) Not engage in any deceptive, misleading, illegal or unethical practices detrimental to Deem or to Deem Services; or
(b) Not make any representations, warranties, or guarantees to prospective Clients concerning Deem Services that are clearly inconsistent with or in addition to those made in the Agreement or by Deem.
2.4 Reselling
a) Subject to the Agreement (including Partner's obligation to pay any Fees due), during the Term, Deem grants Partner a non-sublicensable, non-exclusive, non-transferable license to use Deem Services to provide the Hosted Services during the Term strictly and exclusively for Clients pursuant to a Client Agreement. Partner shall have the right to allow such Clients to access and use Deem Services provided: (i) Details are provided for each individual Client pursuant to Section 3.2 below; (ii) such Clients access and use Deem Services only in accordance with the Agreement; (iii) in the case of providing the Hosted Services, Partner remains the licensee of said Deem Services; (iv) each Client is obligated (i.e., pursuant to a Client Agreement) to protect Deem's proprietary rights in Deem Services and Confidential Information in accordance with the Agreement; and (vi) such Client shall not use Deem Services for any purpose outside the scope of this Section 2.4(a). Partner agrees that it shall not knowingly pursue Clients who have direct agreements with Deem to become Clients, it being understood that Partner may pursue such Clients for travel management services, excluding Hosted Services.
(b) Other than as stated in Section 2.4(a), Partner will not allow any third party to use Deem Services under this license grant. Partner further agrees to use Deem Services only in accordance with the obligations imposed by the Agreement. Partner shall perform the Hosted Services only in accordance with generally accepted professional standards for providing similar services. Partner hereby agrees that if it uses the "Open Enrollment" functionality for any Client, it will properly configure this to restrict such enrollment based upon email addresses specific to such Client's domain.
(c) Partner agrees to maintain the copyright, trademark, logos, and other notices that appear on Deem Services on all associated media, screens, and copies thereof. Partner does not acquire any rights in Deem Services other than as expressly specified in the Agreement. Partner shall not, and shall not allow any third party to, knowingly: (i) reverse engineer, decompile, disassemble or attempt to discover any source code or underlying ideas or algorithms of Deem Services; (ii) use, provide, or allow others to use Deem Services for the benefit of any third party except as expressly allowed herein; or (iii) reset or disable Deem Services.
3.1 Deem will provide training services agreed to by the parties under the terms of the Agreement. Partner is responsible for providing all travel-related support, technical support, training and consultations to its Clients. Any questions from Partner's Clients will be referred by Deem to Partner. Any reimbursements or credits owed by Deem shall be provided to Partner. Partner is responsible for providing any reimbursements or credits to Partner’s Clients. For any on-site services requested or required by Partner, including implementation services, Partner shall reimburse Deem for actual, travel and out-of-pocket expenses incurred, not to exceed $1,000 without Partner's prior written permission (email sufficient).
3.2 Partner shall provide Deem with details for each new Client by providing all the required information by using the "domain cloning tool," accessed via the Partner's master domain, or through such other procedure as otherwise required by Deem's policies as they may be updated from time to time.
3.3 Partner will be responsible for any assistance needed to activate its Clients. If agreed upon in an applicable SOW or Order Form, Partner may subcontract the services of Deem and such activation services shall be pursuant to the Agreement and shall be provided at the rates set forth in Deem's price list in effect at the time such implementation services are ordered or as provided in the SOW or Order Form.
3.4 Deem may provide Partner with Updates from time to time during the Term. Such Updates may be provided as auto-updates or may require installation by Partner. Partner shall install any such Updates within thirty (30) days of receipt from Deem. Deem may discontinue, suspend, update, alter, or supplement all or any portion of the Services or Software, and all or any portion of the information provided in connection thereto, at its sole discretion and Deem shall provide commercially reasonable notice to Partner of any material change that drastically alters Partner and its Client’s use of the Services to the Deem Services or Software; provided, however, Deem shall not treat Partner differently from Deem's other customers with respect to Deem's decision to discontinue, suspend, update, alter, or supplement all or any portion of the Services or Software, and all or any portion of the information provided in connection thereto.
4.1 Partner shall pay to Deem the Fees as set forth in the applicable SOW. Except as otherwise provided in such SOW, all Fees shall be non-cancelable and nonrefundable. Partner shall not be relieved of its obligation to pay Fees owed to Deem by the nonpayment of fees owed by any Client to Partner.
4.2 Deem Services are charged on a time and materials basis. Except as otherwise provided in an applicable SOW, all charges for Deem Services will be invoiced monthly as accrued and shall be due thirty (30) days from the date of invoice. Charges for Deem Services do not include out-of-pocket expenses such as travel, which will be invoiced separately and must be reimbursed by Partner, provided that Deem complies with Partner's travel and expense guidelines and policies and has obtained pre-approval by Partner.
4.3 Except as otherwise set forth herein, all fees shall be due within 30 days from invoice date. Partner will be responsible for and will reimburse and indemnify and hold Deem and its owners harmless from and against all sales, use, excise, real property, withholding and other taxes (including, without limitation, penalties, interest, additions to tax and similar amounts), and any and all duties or import, export, or license fees, however so designated whether federal, state, local, foreign or otherwise, which are related to the Agreement or to payments made under the Agreement, other than taxes imposed on the net income of Deem (collectively, "Taxes"). Partner will reimburse Deem for all such taxes, fees and charges within 30 days of the date of Deem’s invoice for such amounts. Upon request of Deem, Partner will provide reasonable assistance to Deem in the filing of any documents or the making of any statement in connection with the recovery of any taxes referred to in this Section 4.
5.1 Parties' Obligations
Partner shall use commercially reasonable efforts to promote, market, and offer the Hosted Services to potential Clients. Each party will designate executive sponsors and field personnel to promote joint sales programs. At Deem’s sole discretion, Deem may promote Partner as a preferred provider of travel management services and will provide appropriate references accordingly in applicable marketing materials, proposals, and sales presentations relating to the fulfillment of online transactions as approved in advance by Partner.
Partner acknowledges that its timely provision of and access to office accommodations, facilities, equipment, assistance, cooperation, complete and accurate information and data from its officers, agents, and employees, and suitably configured computer products (collectively, "Cooperation") are essential to performance of any services and that Deem shall not be liable for any deficiency in performing Services if such deficiency results from Partner's failure to provide full Cooperation. For the avoidance of doubt, Deem shall not be responsible for project delays related to Partner staffing outages, late deliverables from Partner or similar and all specified fees will continue to be in effect during delays. If services are delayed, or Deem's cost of providing services is increased, as a result of Partner's failure to timely provide its Cooperation, Partner shall pay reasonable time and materials rates for Deem's increased costs in providing services or as otherwise specified in the applicable SOW.
5.2 Publicity Obligations
If Deem elects to issue a joint press release, the parties shall work in good faith towards issuing a joint press release announcing the relationship created by the Agreement within a reasonable period of time from the Effective Date. Each Party shall allow the other to review all announcements, press releases, marketing materials and product brochures pertaining to the other's products prior to their release to the public or the press and shall incorporate all changes that the other may reasonably request to ensure correct usage of their trademarks and accuracy of content.
5.3 Partner Responsibilities
Partner shall support Deem by performing, and Deem will use commercially reason able efforts to enable Partner to perform, the following:
(a) Promptly participate in the general certification of Deem Services, including a review of the system capabilities.
(b) Provide resources in the form of a project manager to assist in all facets of the deployment of Deem Services at designated Client locations.
(c) Provide Pseudo City Code access to the GDS or an alternative distribution source on behalf of the Clients.
(d) Provide detailed PNR requirements to Deem that would assist in configuring the Deem Travel PNR Editor.
(e) Provide any/all Queue configurations to Deem that would assist in the initial set-up to serve the Clients.
(f) Provide any/all special handling processes that would need to be identified during the implementation.
(g) Provide, as identified, data feeds to assist in the initial configuration as it relates to each Client's corporate policy, profiles, preferred vendors, etc.
(h) Assist in the initial post-configuration testing to ensure all aspects of the application are working in conjunction with agency and Client requirements.
(i) Provide access to its fulfillment support staff to ensure they can be trained in support of Deem Services.
(j) Participate in the development of a press release describing the Deem TMC Program and Partner's involvement.
(k) Participate in the development of ongoing press releases, joint case studies, and/or white papers, involving success with Clients.
(l) Provide Deem with ninety (90) days written notice if a Client is moving off of the Deem Software.
All use and disclosure of the End User data constituting personally identifiable information collected by Deem and Partner in connection with Deem Services ("End User Data") shall be governed by Deem's privacy policy, which is posted at [https://www.deem.com/privacy]. Deem reserves the right to amend the Deem privacy policy from time to time, subject to prior notice. Partner shall comply with all applicable data privacy, protection and security laws with respect to the collection and use of personally identifiable information, including personally identifiable information about individual Clients, Customers and End Users. Partner shall use all commercially reasonable technical and organizational measures to protect personally identifiable information in its possession and control from any accidental, unauthorized or unlawful access, disclosure, loss or destruction ("Security Incident"), and shall promptly notify Deem if it becomes aware of any such Security Incident. Partner shall also provide Deem with reasonable assistance in any remediation of a Security Incident. When and as reasonably required by Deem from time to time, Partner shall execute supplemental data privacy, protection and security terms with Deem to ensure the parties' continued compliance with applicable law, and the security of personally identifiable information collected, transferred or otherwise processed under the Agreement.
7.1 Term
The Term of these Terms and Conditions shall be coterminous with the applicable agreement between the parties.
7.2 Termination for Breach
Either party may immediately terminate the applicable agreement upon written notice to the other party (“Defaulting Party”), if the Defaulting Party commits any material breach of any provision of the Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach. Furthermore, either party may terminate the Agreement upon written notice if the Defaulting Party ceases to conduct business (except for Force Majeure), becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to its liquidation or insolvency, which is not dismissed within ninety (90) days, or makes an assignment for the benefit or its creditors. Except as otherwise provided in the Agreement, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy.
7.3 Effect of Termination
Upon expiration or termination of the Agreement, all of Partner's rights and licenses to use and market Deem Services, and all other rights as set forth in the Agreement, shall cease immediately.
The termination of the Agreement shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve Partner's obligation to pay all Fees that have accrued as of the date of termination or that are owed by Partner hereunder. The parties' rights and obligations under Sections 2.2, 2.3, 2.4(c), 4, 7, 8, 9, 11, 12 and 14 shall survive termination of the Agreement. Upon termination, and at Partner's cost, Partner shall cease using, and shall return or destroy all copies of the applicable portions of Deem Services and related materials and certify to Deem within one (1) month after expiration or termination that Partner has destroyed or has returned to Deem all such applicable portions of Deem Services and materials.
Upon the expiration or termination of the Agreement, all of Partner's licenses to use Deem Services, and all other rights, services and licenses granted by Deem to Partner as set forth in the Agreement, shall cease immediately (except for those rights, licenses and obligations that are expressly stated to survive termination of the Agreement). Within ten (10) days from the date of any termination or expiration of the Agreement, whichever is later, each party shall provide the other with a signed written statement certifying that such party has not retained any copies of any documentation or any Confidential Information of the other party.
8.1 Deem represents, warrants and covenants to Partner that:
(a) it is and throughout the Term will remain the sole and exclusive legal and beneficial owner of the entire right, title and interest in and to Deem Services, including all Intellectual Property Rights relating thereto;
(b) it has and throughout the Term will retain the unconditional and irrevocable right, power and authority to grant and perform the license hereunder;
(c) Deem Services, and Partner's use thereof, is and throughout the Term will be free and clear of all encumbrances, liens and security interests of any kind;
(d) neither its grant of the license, nor the performance by or on behalf of Deem under the Agreement does or, to its knowledge will at any time: (i) conflict with or violate any applicable law; (ii) require the consent, approval or authorization of any governmental or regulatory authority or other third party; or (iii) require the provision of any payment or other consideration to any third party;
(e) use of the Deem Services by Partner does not and will not: (i) infringe, misappropriate or otherwise violate any Intellectual Property Right or other right of any third party; or (ii) fail to comply with any applicable law; and
(f) there is no settled, pending or to its knowledge threatened litigation, claim or proceeding: (i) alleging that any use of Deem Services does or would infringe, misappropriate or otherwise violate any copyright, patent, trade secret or other Intellectual Property Right of any third party; (ii) challenging Deem's ownership of, or right to use or license, Deem Services, or alleging any adverse right, title or interest with respect thereto; or (iii) alleging the invalidity, misuse, unregistrability, unenforceability or noninfringement of any copyrights, trade secret rights or patent rights in Deem Services.
8.2 Deem further represents, warrants and covenants to Partner that:
Partner's sole and exclusive remedy and the entire liability and obligation of Deem with respect to the foregoing representations, warranties and covenants in Section 8.1 shall be the re-performance of Deem Services.
8.3 Warranty Disclaimer
EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THE AGREEMENT, PARTNER ACKNOWLEDGES THAT DEEM SERVICES IS PROVIDED 'AS IS' WITHOUT WARRANTY OF ANY KIND, AND DEEM EXPRESSLY DISCLAIMS TO THE EXTENT PERMITTED BY LAW ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY BY ANY TERRITORY OR JURISDICTION, WITH RESPECT TO DEEM SERVICES OR SOFTWARE ASSOCIATED THEREWITH, OR THE DATA DERIVED FROM ANY SERVICES, AND ANY COMPONENTS THEREOF, AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT.
8.4 Limitation of Liability
IN NO EVENT SHALL DEEM BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, ECONOMIC, OR CONSEQUENTIAL LOSS OR DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF OPPORTUNITIES OR SAVINGS, LOSS OF REVENUE, DATA OR USE, INTERRUPTION OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF PARTNER OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL DEEM’S AGGREGATE AND CUMULATIVE LIABILITY FOR ANY CLAIMS AND DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY SUCH PARTY TO THE OTHER UNDER THE AGREEMENT DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE FOREGOING DOES NOT RELIEVE EITHER PARTY OF ITS OBLIGATION TO PAY ANY AMOUNT DUE AND PAYABLE UNDER THE AGREEMENT.
Partner acknowledges that the structure, organization and code of Deem Services are proprietary to Deem and that Deem retains exclusive ownership of Deem Services, Trademarks, Service marks and any other Intellectual Property Rights relating to Deem Services. Partner will take reasonable measures to protect Deem’s Intellectual Property Rights in Deem Services, and Trademarks, including such assistance and measures as are reasonably requested by Deem from time to time. Except as provided herein, Partner is not granted any other Intellectual Property Rights, or any other rights, franchises or licenses, with respect to Deem Services or Trademarks. Deem is not granted any Intellectual Property Rights by Partner hereunder, or any other rights, franchises or licenses, with respect to Partner or its Intellectual Property Rights.
Any Intellectual Property Rights associated with modifications, enhancements and derivative works of Deem Services developed by Partner in connection with the license grants shall be owned by Deem, and therefore, Partner irrevocably assigns to Deem all right, title and interest worldwide in and to such Intellectual Property Rights. If Partner has any rights to such Intellectual Property Rights that cannot be assigned to Deem, Partner unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Deem with respect to such rights, and agrees, at Deem’s request and expense, to consent to and join in any action to enforce such rights. If Partner has any rights to such Intellectual Property Rights that cannot be assigned to Deem or waived by Partner, Partner unconditionally and irrevocably grants to Deem during the term of such rights, an exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicense, to reproduce, create derivative works of, distribute, publicly perform and publicly display by all means now known or later developed, such rights.
Partner acknowledges that any breach of its obligations with respect to Intellectual Property Rights of Deem will cause Deem irreparable injury for which there are inadequate remedies at law and that Deem shall be entitled to equitable relief in addition to all other remedies available to it.
Partner shall use its best efforts to ensure that every Client Agreement shall include, at a minimum, contractual provisions which: (a) restrict use of Deem Services to Client’s own internal business purpose; (b) prohibit (i) assignment, timesharing and rental of Deem Services; (ii) title to Deem Services from passing to the Client or any other party; (iii) reverse engineering, disassembly or decompilation of Deem Services; (iv) use of any device, software or technique to interfere with or attempt to interfere with the proper working of Deem Services or impose an unreasonable or disproportionately large load on the site’s infrastructure; (v) posting or transmitting to Deem Services any unlawful, fraudulent, harassing, libelous, or obscene information of any kind, any information in violation of another party’s copyright or intellectual property rights, or any information that contains a virus, bug, or other harmful item; (vi) publishing, performing, distributing, or preparing derivative works, or other use, of Deem Services content other than as expressly permitted; or (vii) redeliver any of the content using “framing,” hyperlinks, or other technology without Deem’s express written permission; (c) disclaim, to the extent permitted by applicable law, Deem’s liability for any damages, whether direct, indirect, incidental or consequential, arising from the use of Deem Services or under the Client Agreement; (d) require the Client, at the termination of the Client Agreement to discontinue use and destroy or return to Partner all copies of Deem Services and documentation; (e) require the Client to comply fully with all relevant export laws and regulations to assure that neither Deem Services, nor any direct product thereof, are exported, directly or indirectly, in violation applicable law; and (f) specify Deem as a third party beneficiary of the provisions of this Section 10; and (g) notifies Client of the following:
Client acknowledges that Deem does not include any guarantee regarding the quality or performance of the services (e.g., travel, hotel, car rental, package ship) that may be procured through Deem or the sufficiency of the providers of such services in meeting the requirements of Client or its End Users. Client understands and agrees to comply with all applicable supported supplier website terms and conditions, including restrictions and applicable change and cancellation policies. Client acknowledges that Deem is not responsible for the content of the supported supplier websites, including, but not limited to the accuracy of the policies or practices of such web sites and that Deem does not make any representations regarding the content or accuracy of information (including but not limited to fares, rates or availability). Client's use of such suppliers' services and related sites is subject to any applicable terms and conditions of use and privacy policies of such suppliers. Client acknowledges that Deem, in conjunction with providing Deem Travel hereunder, may disclose certain booking data and Confidential Information including, but not limited to, End Users' names, End Users' profile information including credit card data with applicable airline supplier websites as directed by Client's End Users. Client will be solely responsible for: (a) all responsibilities related to changes and/or cancellations of services by an End User, including, but not limited to, lost tickets, fraud, obtaining possession of the applicable ticket (paper ticket or electronic ticket) from the applicable airline supplier or non- fulfillment by the applicable supplier; (b) for ensuring that any purchases hereunder are made in accordance with its policies and procedures and guidelines and for resolving any disputes with its employees and agents related thereto; (c) for payment of any and all products or services (and associated service fees) ordered or purchased through the Deem Services including, but not limited to, agent-assisted booking services, any purchases made using Client's centralized or group credit card including, but not limited to, purchases by its employees or agents (former or current); and (d) certain Confidential Information, including, but not limited to, End Users' names, End Users' profile information including credit card data and the security of such Confidential information when utilizing any supplier website utilized through the Deem Services.
Partner shall use all reasonable and practical means available to control the restricted use of Deem Services and to ensure compliance with the provisions of this Section 10. If Partner becomes aware that a Client uses or has used Deem Services in violation of the provisions of this Section 10, Partner shall immediately notify the Client of such unauthorized use and if the Client fails to discontinue such unauthorized use following notification, terminate the Client Agreement and/or access to the Client (as applicable). Any third-party software that is delivered with Deem Services may be used solely in connection with Partner's licensed use of Deem Services.
11. 1 By virtue of the Agreement, the parties may have access to information including know-how and trade secrets, proposed new products and services, and/or the business or affairs, which are the confidential and proprietary information of the other party and not generally known to the public ("Confidential Information"). Confidential Information shall include, without limitation, all information of either party clearly identified as confidential, Deem Services in any embodiment and any other information relating to Deem Services received by Partner from Deem that is also identified by Deem as proprietary or confidential, and the terms under the Agreement.
11.2 A party's Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the other party; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party.
11.3 The parties agree to hold each other's Confidential Information in confidence during the term of the Agreement and for a period of 3 years after termination of the Agreement, except for Trade Secrets, in which case the obligations of confidentiality contained herein shall continue as long as such Trade Secret retains its status as a Trade Secret under applicable law. The parties agree, unless required by law (in which case the party being required to disclose by law provides notice thereof to the other party, together with the statutory or regulatory provision, or court order, on which such disclosure is based, as soon as practicable prior to such disclosure so that the other party has the opportunity to obtain a protective order or take other protective measures as it may deem necessary with respect to such information), not to make each other's Confidential Information available in any form to any third party for any purpose other than the integration of the Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement. The parties hereby consent to the disclosure of its Confidential Information to the employees, contractors or consultants of the other party as is reasonably necessary in order to allow the other party to perform its obligations under the Agreement and to obtain the benefits hereof, provided that each such employee, contractor or consultant who will have access to any Confidential Information has executed a non-disclosure agreement which prohibits the unauthorized use or disclosure of any such Confidential Information.
11.4 The parties agree that Partner’s Confidential Information may be disclosed by Deem-to-Deem Group Companies provided Deem uses its reasonable commercial endeavors to procure that such entities will not do anything which, if done by Deem, would be in breach of the Agreement.
11.5 It is understood and agreed that notwithstanding any other provisions of the Agreement, a breach by either Party of this Section 11 ("Confidentiality"), may cause either party irreparable damage for which recovery of money damages would be inadequate, and that, in addition to any and all remedies available at law, either party shall be entitled to seek timely injunctive relief to protect its rights under the Agreement.
Partner hereby agrees to defend and/or settle, at its own expense, and hold Deem and its Group Companies and its respective officers, directors, agents and employees ("Deem Indemnitees") harmless from and against any and all third-party claims and actions, and shall pay such damages, expenses, and liabilities, including, but not limited to, attorney fees and other expenses incident thereto that may be threatened against, or recoverable from, the Indemnitees arising out of (i) Partner's failure to include, in all materials respects, the required contractual terms set forth in Section 10 above in each Client Agreement, (ii) misrepresentation, representations inconsistent with the Agreement, negligence, errors or omissions on the part of a party or representatives of such party, which in all cases materially and adversely affect Deem; (iii) unauthorized use or misuse of Deem Services including, without limitation, making fraudulent bookings, or permitting fraudulent bookings by violating Subsection 2.4(b), to the extent known by Partner and uncured or (iv) Partner's violation of law, or breach of its confidentiality or data security obligations.
In the event that Partner is required to defend and/or settle any third party claim or action, such requirement shall be contingent upon Deem: (a) notifying Partner promptly in writing of any such claim or action, provided, however, that the failure of Deem to notify Partner shall not relieve Partner from any liability that it may have hereunder, except to the extent such failure actually materially prejudices Partner; (b) gives Partner sole control of the defense and settlement of such claim or action; and (c) gives Partner all reasonable assistance and cooperation in such defense at Partner’s expense.
Obligations under this Section 12 shall survive the expiration or termination of these Terms and Conditions for any reason for a period of 12 months following the termination or expiration of the Agreement.
13.1 Deem covenants and agrees as follows:
(a) Partner shall comply with all applicable anti-bribery and anti-corruption laws and regulations, including the US Foreign Corrupt Practices Act and the UK Bribery Act 2010 and if applicable, local anti-bribery and anti- corruption laws (collectively, the "Anti-Bribery and Anti-Corruption Laws").
(b) Partner shall ensure that all of its shareholders/partners, officers, directors, employees, agents, subcontractors and any other persons or entities acting on its behalf in connection with this Agreement (collectively, the "Representatives") do so in compliance with the terms imposed on Partner in this Section 13 (the "Anti-Bribery Terms"). Partner shall be responsible for the observance and performance by the Representatives of the Anti-Bribery Terms, and shall be directly liable to Deem for any breach by the Representatives of any of the Anti-Bribery Terms.
(c) Partner shall not make, directly or indirectly, in connection with this Agreement or in connection with any other business transaction related to Deem, a payment or gift of, or an offer, promise, or authorization to give money or anything of value to any: (a) Government Official; (b) person or entity; or (c) other person or entity while knowing or having reason to believe that any portion of the payment or thing of value will be offered, given, or promised, directly or indirectly, to a Government Official or another person or entity for the purpose of: (i) influencing any act or decision of such Government Official or such person or entity in their official capacity, including a decision to do or omit to do any act in violation of their lawful duties or proper performance of functions; or (ii) inducing such Government Official or such person or entity to use their influence or position with any Government Entity or other person or entity to influence any act or decision; in order to obtain or retain business for, direct business to, or secure an improper advantage for Deem or Partner.
(d) Partner shall not, either in whole or in part, assign or delegate any rights, duties, or obligations under this Agreement to any third party, including any subcontractor, without the express prior written consent of Deem. If Deem approves the use of a subcontractor, Partner shall make such subcontractor's performance subject to the terms and conditions of this Agreement
(e) Partner shall perform its obligations under this Agreement solely in its personal or private capacity and shall not use the authority, influence, or prestige of any position to:
(f) perform the services required herein; or
(g) influence a Government Official concerning Deem's business.1
13.2 Partner shall maintain books and records that describe in accurate and reasonable detail all expenditures incurred by it in connection with this Agreement. Partner shall maintain such books and records for the duration of the Agreement and shall grant Deem the unrestricted right to take reasonable steps to verify Partner’s compliance with any Anti-Bribery Terms. Deem shall have the right to audit or retain a third party to audit, at its sole discretion, all:
(a) services performed by Partner under this Agreement.
(b) invoices and requests for expense reimbursement submitted to Deem by Third-Party Intermediary; and
(c) payments made to, or benefits conferred by Partner on third parties in the course of Third-Party Intermediary's performance of services under this Agreement.
13.3 Partner shall fully cooperate in any audit that may be conducted. Expenses incurred by Deem in conducting the audit shall initially be borne by Deem. However, if such audit reveals a failure by Partner to maintain complete and accurate books and records or a breach of the Agreement, then Partner shall bear the reasonable expense of the audit, if so, requested by Deem.
13.4 Partner shall:
(a) abide by Deem Group's Business Partner Conduct & Ethics Policy, which can be found here at https://www.travelport.com/travelport-business-partner-conduct-and-ethics-policy.
(b) have and maintain throughout the term of this Agreement adequate policies, procedures, and controls to ensure compliance with the Anti-Bribery Terms, including at a minimum policies and procedures relating to prevention of bribery, accounting for financial transactions, due diligence on third parties, and training of personnel, and will enforce them where appropriate.
(c) participate in anti-bribery compliance training, if so, requested by Deem.
(d) immediately notify Deem in writing if subsequent developments cause the statements in the Deem Business Conduct & Ethics Policy to be inaccurate or incomplete.
(e) promptly report to Deem any request or demand for any undue or suspicious payment or other advantage of any kind received by Partner in connection with the performance of this Agreement; and
(f) when requested by Deem from time to time, provide a certification in form and substance satisfactory to Deem, signed by a legal representative of Partner, certifying that Partner is, and to its best knowledge all of its Representatives are, in compliance with Deem Business Partner Conduct & Ethics Policy. Upon Deem's request, Partner shall also obtain such certificates from its Representatives and provide a copy of such certificates to Deem.
13.5 If Deem reasonably determines, at any time, that Partner or any of its Representatives may have violated any Anti-Bribery Terms, Deem shall have the right to suspend all payments due under this Agreement while it investigates the matter. If Deem determines reasonably and in good faith that there has been such a violation, Deem shall have the right to terminate this Agreement with immediate effect without payment to Partner and any payments owed by Partner to Deem at the date of termination shall become immediately due.
13.6 Partner shall indemnify and hold harmless Deem and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, that are incurred by Indemnified Party arising out of the violation of any Anti-Bribery Terms by Partner or any of its Representatives.
14.1 Relationship Between Parties
In all matters relating to the Agreement, Partner will act as an independent contractor. At all times, the relationship between Partner and Deem shall be that of independent contractors and nothing expressed or implied shall constitute the parties as partners, joint-ventures or co-owners. Except as expressly provided in the Agreement, neither party shall have the right to enter into a binding agreement on behalf of, or otherwise bind, the other, nor have the right to direct or control the activities of the other. Each party shall be responsible for its own costs and expenses associated with its performance under the Agreement.
14.2 Assignment and Acquisition
Deem shall have the right to assign, subcontract or otherwise delegate all or any of its rights or obligations under this Agreement. Partner may not assign or transfer any of the rights or responsibilities set forth herein without the express written consent of Deem (which consent shall not be unreasonably withheld or delayed), and any purported attempt to do so shall be deemed null and void; provided, however, that either party may assign the Agreement to any successor to substantially all of its business or assets to which the Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to the foregoing, the Agreement shall inure to the benefit of and be binding on the respective successors and assigns of the parties. In the event that Partner acquires a travel management company that is an existing Deem partner, and Partner wishes to terminate the acquired company's existing Deem contract and incorporate the acquired company into Partner's contract, Partner must fulfill any minimum financial commitments remaining on the acquired company's Deem contract by adjusting the commitment of this contract commensurately.
14.3 Notice
All notices which either party is required or may desire to give to the other party under or in conjunction with the Agreement shall be in writing and shall be delivered by either a nationally recognized courier, or registered mail, postage prepaid, return receipt requested. All notices sent to Deem must be copied to its General Counsel at 300 Galleria Pkwy #400, Atlanta GA 30339, ATTN: Legal Department – Contract Notices or via e-mail to legalnotices@travelport.com. Any notice sent by post in accordance with this Section 14.3 shall be deemed to have been received on the second Business Day after being posted. Any notice delivered by hand or sent by email shall be deemed to have been received on the day of delivery where such delivery takes place before 5:00 pm on a Business Day, or on the following Business Day where delivery takes place on a day not being a Business Day or after 5:00 pm on a Business Day. Notices to Partner shall be sent to the address set forth on the Cover Page or to such other address as Partner may specify in writing. Partner must notify Deem within ten Business Days if there is any change to the Control of Partner or the Partner’s name, registered office, address, agreed locations or other contact details.
14.4 Governing Law/Jurisdiction
This Agreement shall be governed by and in accordance with the laws of the State of Georgia, without reference to its conflict of laws principles. The party’s consent to exclusive jurisdiction and venue of the state and federal courts sitting in and for Georgia.
14.5 Severability
In the event that any provision of the Agreement shall be unenforceable or invalid under any applicable law or be so held by an applicable court decision, such unenforceability or invalidity shall not render the Agreement unenforceable or invalid as a whole, the remaining provisions of the Agreement will remain in full force and effect, and, in such event, any such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or intended provision within the limits of applicable law or applicable court decisions.
14.6 Waiver
The waiver by a party of any breach by the other party of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach by the other party of the same or any other term, covenant or condition contained in the Agreement. The subsequent acceptance of performance hereunder by a party shall not be deemed to be a waiver of any preceding breach by the other party of any term, covenant, or condition of the Agreement, other than the failure of such party to perform the particular duties so accepted, regardless of such party's knowledge of such preceding breach at the time of acceptance of such performance. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter.
14.7 Force Majeure
Neither party shall be liable to the other for failure or delay in the performance of a required obligation, except for the payment obligations of Partner, if such failure or delay is caused by strike, riot, fire, flood, natural disaster, act of terrorism or sabotage, cyber-attack or Internet service provider failure or delay, or other similar cause beyond such party's control, provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible, and provided further that the other party may terminate the Agreement if such condition continues for a period of one hundred eighty (180) days.
14.8 Publicity
Notwithstanding anything to the contrary in the Agreement, each party may announce in non-public forums the existence of the business relationship established hereunder, provided that neither party shall disclose any of the terms of the Agreement to any third party without first obtaining the written consent of the other party. Deem and Partner shall have the right to refer to each other as partners with respect to Deem Services in materials and on its website.
14.9 Counterparts
The Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
14.10 Entire Agreement
The Agreement, together with any schedules, exhibits, and addenda, constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of the Agreement. In the event of any conflict between the terms of the Agreement and an addendum hereto, the terms of the addendum shall control with respect to the subject matter of the addendum only. The Agreement may be modified only by further written amendment or supplement signed by a duly authorized representative of each party.