Last updated: January 2023

Disclaimer: OTA Insight does not accept a redlined download of these Terms & Conditions. Please contact your sales representative for more information.

These Terms and Conditions govern the use of OTA Insight Products & Services as set forth in the Ordering Document or any other form of agreement that references these terms (together “the Agreement”). By signing an Ordering Document or other form of agreement with OTA Insight the Customer agrees to be bound by these Terms and Conditions.

The Effective Date of the Agreement is set out on the Ordering Document or as otherwise agreed between the Parties.

In this Agreement, OTA Insight means OTA Insight Ltd. and any Group Member of OTA Insight Ltd. Group Member shall mean any entity which directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with that entity, where “control” means holding, directly or indirectly, a majority of the voting rights in it, or the power to direct or cause the direction of its management, policies or operations (whether through holding of voting rights, by contract or otherwise).

1. PRODUCTS & SERVICES

1.1 Description. The Products and Services consist of cloud-based business intelligence platforms (“the Platform(s)”) in subscription form (“Subscription”) or as otherwise set out between the Parties that enables the Customer to make informed revenue management, distribution and marketing decisions

1.2 Future functionalities, modifications, enhancements. OTA Insight does not commit to the delivery of any future feature or functionality. Our Products and Services are regularly updated and enhanced. OTA Insight may deprecate, diminish or remove certain features and functionalities. Such changes will never have a materially adverse impact on the Customer’s use of such Products and Services unless Customer consents to such materially adverse change in writing.

1.3 Professional Services.  Any Professional Services procured will be described in writing on a per-project basis through a Statement of Work (“SOW”). OTA Insight does not provide any custom deliverables or services under this Agreement which would qualify as work-made-for-hire.

1.4 Support. OTA Insight’s standard support services (“Support Services”) are included at no additional cost during the Term of this Agreement.

1.5 Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to the Service (a “Trial Subscription”), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of thirty (30) days or such other period granted by OTA Insight (the “Trial Period”). Trial Subscriptions are permitted solely for Customers use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period. OTA Insight has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, OTA INSIGHT WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.

1.6 Beta Offerings. The Customer may choose to use Beta Offerings in its sole discretion. Beta Offerings may not be supported and may be changed at any time without notice. Beta Offerings may not be as reliable or available as the Products and/or Services. Beta Offerings are not subject to the same security measures as in the Security Policy. OTA Insight will have no liability arising out of or in connection with Beta Offerings.

2. GRANT OF RIGHTS

2.1 Grant of rights. Subject to full payment of the applicable fees following the Effective Date, OTA Insight shall set-up the Customer in respect of the Product and/or Service(s) to which they have the right to access and use solely for the Customer’s internal business operations or any other Permitted Purpose as set out in the Agreement. The Customer has the non-exclusive, non-transferable, revocable right to

1. 1. access and use the Products offered on any of the OTA Insight Platforms;
      
   2. any Services as described in any SOW as agreed between the parties in writing (“Professional Services”); and
      
   3. Support Services in accordance with OTA Insight’s standard practices (all together “the Services”)
      

2.2 OTA Insight retains all right, title, and interest in and to the Products and Services and all related intellectual property rights, including without limitation any modifications, updates, customizations, apps or add-ons.

3. IMPLEMENTATION

3.1 Where the provision of the Services requires implementation assistance of the Customer to allow OTA Insight to deliver the Services, the Customer agrees to take all reasonable measures to allow OTA Insight to perform its obligations under this Agreement. If OTA Insight’s performance under this Agreement is prevented or delayed by any act or omission by the Customer OTA Insight shall not be in breach of this Agreement as a result of such act or omission.

4. TERM & TERMINATION

4.1 Subscription Term. Each Subscription shall commence on the Effective Date and shall, unless sooner terminated in accordance with its terms, continue for an initial term of the duration set out on the Ordering Document or similar Agreement (“Initial Term“). Unless otherwise specified on the applicable Agreement, each Subscription Term will automatically renew for additional twelve month periods (each a “Renewal Term”).

4.2 Termination. Either party may notify the other that it does not wish for the Subscription Term to be renewed by giving the other at least 30 days prior written notice before the end of the then-current Subscription Term. In such event the Agreement shall expire at the end of the then-current Subscription Term (either an Initial Term or a Renewal Term). If no notice has been given the Agreement shall automatically be renewed for another Renewal Term.

4.3 Termination for cause. Either party may terminate this Agreement, at any time, by giving the other written notice if the other:

1. materially breaches any term of this Agreement and it is not possible to remedy that breach;
2. materially breaches any term of this Agreement and it is possible to remedy that breach, but the other fails to do so within 30 days of being requested in writing to do so; or
3. becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an is order made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 28 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so. For the purposes of this clause, in order for it to be possible to remedy a breach it must be possible to take steps so as to put the other party into the same position which (save as to the date) it would have been in if the breach had never occurred.

4.4 OTA Insight may, in addition, and without liability, terminate this Agreement, or alternatively, suspend access to and use of any Product and/or Service, by giving the Customer written notice if:

1. any invoiced amount (not then-currently being disputed in good faith) is outstanding beyond the due date for payment;
2. the Customer is in persistent or repeated breach of any of their obligations under this Agreement.

4.5 Effects of termination. On termination or expiration of this Agreement OTA Insight shall destroy or otherwise dispose of any of the Customer Data unless otherwise set out in this Agreement. All sections of this Agreement which by their nature should survive termination will survive termination.

5. FEES, PAYMENT & TAXES

5.1 Upon mutual signature of the Agreement, OTA Insight shall invoice the Customer for the Fees in advance in accordance with the agreed Subscription Term, commencing on the Effective Date.

5.2 Unless otherwise set out in the Agreement, invoices are payable, in full within 30 days of receipt, without deduction, set off or withholding of any kind. All invoices will be delivered electronically using the billing and contact information provided by the Customer.

5.3 The Fees stated in the Ordering Document (or any other Agreement) do not include Taxes. Customer is responsible for paying all applicable Taxes. In the event OTA Insight determines it has a legal obligation to pay or collect Taxes, OTA Insight will add such Taxes to the applicable invoice and Customer will be obligated to pay such Taxes unless Customer provides OTA Insight with a valid tax exemption certificate from the appropriate tax authority. Any Taxes not reflected on the invoice will be taken care of and paid by the Customer.

5.4 Credit Card Payment. If the Customer purchases the Products/ Services via credit card the following terms apply: OTA Insight utilises third party payment providers to process credit card payments on our behalf (“Payment Provider”). Such Payment Provider’s policies govern the processing of a Customer’s payment, and Customer must refer to those policies and not this Agreement to determine their rights and liabilities. By providing credit card information to the Payment Provider, Customer authorises OTA Insight, through such Payment Provider, to immediately charge the Fees for the Service during any applicable Term on a recurring basis until expiration or termination of this Agreement. The Customer may update credit card information by entering updated information through the user interface of the Service

5.5 If OTA Insight has not received payment by the due date, and without prejudice to any other rights and remedies of OTA Insight may:

1. without liability to the Customer, disable the Customer’s access to all or part of the Products and Services and OTA Insight shall be under no obligation to provide any or all of the Services while the sums concerned remain unpaid; and
2. If Customer believes that OTA Insight has billed the Customer incorrectly, the Customer must contact OTA Insight no later than 30 days after receipt of the invoice in which the error or problem appeared, with a request to receive an adjustment or credit. The Customer may direct this request to: finance@otainsight.com.

5.6  Unless agreed otherwise in writing, OTA Insight shall have the right to increase the Fees up to 5 (five) % at the start of each Renewal Term.

6. RESTRICTIONS & ACCEPTABLE USE

6.1 The Customer will not, directly or indirectly:

1. 1. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, or any software developed, trained or owned by or licensed to OTA Insight and which forms part of, or is used in the provision the Services, documentation or data related to the Services (“Software”) including to build a competitive product or service using similar ideas, features, functions or graphics of the Service and/or copy any ideas, features, functions or graphics of the Service;
      
   2. copy, translate, modify, adapt or create derivative works from any Product or the Service (except to the extent expressly permitted by OTA Insight or authorised within the Services);
      
   3. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the employees or agents of the Customer or as otherwise permitted by the Agreement;
      
   4. use the Services in a manner that is illegal or causes damage or injury to any person or property;
      
   5. attempt to interfere with the proper working of any Product, the Service or Software and, in particular, must not attempt to circumvent security, licence control or other protection mechanisms, or tamper with, hack into or otherwise disrupt any Product, the Service or Software or any associated website, computer system, server, router or any other internet-connected device;
      
   6. amend or remove any copyright notice, trade mark or other proprietary marking on, or visible during the operation or use of, any Product, the Service or Software; or
      
   7. use the Service to: upload, store, post, email, transmit or otherwise make available any content that infringes any Intellectual Property Rights or data protection, privacy or other rights of any other person in breach of any contractual duty or any obligation of confidence,), knowingly false or misleading, or that does not comply with all applicable laws and regulations;
      
   8. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Customer Data transmitted through the Service;
      
   9. attempt to gain unauthorised access to any Product or the Service or its related systems or networks; and/or use automated systems, software (incl. but not limited to “crawlers” or “screen scraping”) or any other method to extract data from the Product (either through a browser or through access to the API) for any purpose (incl. but not limited to commercial, personal, research purposes). This activity is strictly prohibited unless the Customer has concluded a written agreement with OTA Insight which permits said usage for a pre-defined purpose.
      

6.2 Breach by the Customer of (one of) these provisions will result in OTA Insight blocking and/or deactivating access to the Service. No refund of fees paid in advance shall be due in respect of any unexpired portion of the then-current term.

6.3 The Customer shall:

1. provide OTA Insight with all necessary co-operation in relation to this Agreement (and all necessary access to such information as may be required by OTA Insight in order to provide the Services, including to Customer Data, security access information and configuration services;
2. comply with all applicable laws and regulations with respect to its activities under this Agreement;
3. carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, OTA Insight may adjust any agreed timetable or delivery schedule as reasonably necessary; and
4. obtain and maintain all necessary licences, consents, and permissions necessary for OTA Insight, its contractors and agents to perform their obligations under this agreement, including providing the Services. OTA Insight reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

7. WARRANTY & DISCLAIMER

7.1 OTA Insight undertakes that the Services will be performed with reasonable skill and care and warrants that the Service shall, under normal operating conditions, substantially conform to the functionality described in the specification set out in the Agreement or as otherwise provided by OTA Insight. OTA Insight’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for OTA Insight to use commercially reasonable efforts to correct the reported non-conformity, or if OTA Insight determines such remedy to be impracticable, either party may terminate the applicable Subscription and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Product or Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section will not apply:

1. 1. unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity,
      
   2. if the error was caused by misuse, unauthorised modifications or third-party hardware, software or services, or
      
   3. to use provided on a no-charge, trial or evaluation basis.
      

7.2 If the Services are not provided in accordance with the Agreement or are not provided with reasonable skill and care, OTA Insight will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. This constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in this clause.

7.3 For the avoidance of doubt OTA Insight:

1. 1. does not warrant that the Customer’s use of the Services will be uninterrupted or error-free;
      
   2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
      
   3. shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer, but does not guarantee 100% availability;
      
   4. does not control the Customer Data and, as such, OTA Insight does not make or give any representation or warranty as to the accuracy, completeness, currency, correctness, reliability, integrity, usefulness, quality, fitness for purpose or originality of any of the foregoing content or data; and
      
   5. reserves the right to update or maintain the Hosted Services at any time.
      

7.4 The Customer assumes sole responsibility for results obtained from the use of the Products/Services by the Customer, and for conclusions drawn from such use. OTA Insight shall have no liability for any damage caused by errors or omissions in any information, instructions provided to OTA Insight by the Customer in connection with the Services, or any actions taken by OTA Insight at the Customer’s direction. The Customer acknowledges that the Services are intended to be a useful tool, but are not intended to be a substitute for the Customer’s own skill and judgement in determining its own pricing decisions for its own unique inventory.

7.5 Third-Party Applications disclaimer. This Agreement does not govern Customer’s use of Third-Party Applications used in connection with the Products and Services. Third-Party Products are governed solely by the terms and conditions between Customer and the Third-Party Product. OTA Insight makes no commitments or claims regarding security, confidentiality, or performance of any Third-Party Products, and specifically disclaims any liability regarding use of or integration by OTA Insight with Third-Party Products.

8. CONFIDENTIALITY

8.1 Each party shall:

1. keep confidential all Confidential Information of the other party which it receives in connection with this Agreement;
2. apply to it no lesser security measures and degree of care than those which it takes in protecting its own Confidential Information and in any event no less than that which a reasonable person or business would take in protecting its own confidential information;
3. only use such Confidential Information as strictly necessary for the performance of, or exercise of its rights under, this Agreement;
4. not disclose such Confidential Information to any third party (other than its professional advisers, officers, employees, agents, contractors and subcontractors on a ‘need to know’ basis as strictly required for the purposes of this Agreement and subject to each such person being bound by an obligation of confidentiality equivalent to this clause 8; and
5. promptly, upon request and, in any event, upon termination of this Agreement (for whatever reason), return to the other party all materials (in whatever form) incorporating, embodying or recording any such Confidential Information in its possession or control and, if requested by the other party, certify in writing that it has done so. Either party may disclose the other’s Confidential Information to the extent required by law or by any court, tribunal, regulator or other authority with competent jurisdiction to order its disclosure (but only to the extent of such requirement).

9. INTELLECTUAL PROPERTY RIGHTS

9.1 In this clause, “Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action);

9.2  OTA Insight, OTA Insight Group Members and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in OTA Insight brands, software, database, trademarks and logos, the Services and the Software. Except as expressly permitted by this Agreement, the Customer may not use any of OTA Insight Intellectual Property Rights without prior written consent by OTA Insight.

9.3 The Customer shall promptly bring to the attention of OTA Insight any improper or wrongful use of any Intellectual Property Rights of OTA Insight which comes to the Customer’s notice. The Customer shall assist OTA Insight in taking all steps to defend OTA Insight’s Intellectual Property Rights, but not institute legal proceedings of its own accord.

9.4 The Customer grants OTA Insight a free of charge, a non-exclusive, worldwide royalty-free licence to use the Customer Data to such extent as is necessary to enable OTA Insight to perform its obligations under this Agreement or as otherwise set out in this Agreement.

9.5 Customer warrants that they own the Customer Data and/or are otherwise entitled to grant the foregoing licence. If this Agreement is terminated, the foregoing licence will automatically terminate.

9.6 OTA Insight and/or its Group Members shall own and retain all right, title and interest in and to:

1. 1. the Services and Software, all improvements, enhancements, modifications and derivatives thereto;
      
   2. any software, applications, inventions or other technology developed in connection with the Services;
      
   3. deliverables and work product (including drafts) arising in the course of the provision of the Implementation Services; and
      
   4. all intellectual Property Rights related to any of the foregoing.

9.7 Nothing in this Agreement shall operate to assign or transfer any intellectual Property Rights from OTA Insight to the Customer. The Customer warrants to OTA Insight that any data it supplies to OTA Insight will not infringe upon the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law or regulation.

10. PRIVACY & SECURITY

10.1 Security. OTA Insight will establish and maintain appropriate administrative, technical, and physical safeguards and controls to:

1. 1. ensure the ongoing confidentiality, integrity, availability, and resilience of the Products and Services and Customer Data;
      
   2. restore the availability and access to Customer Data in a timely manner in the event of a physical or technical incident; and
      
   3. have in place a process for regularly testing, assessing, and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing through the Products and Services.
      

10.2 OTA Insight is ISO 27001 certified for information security management.

10.3 Personal Data Processing. OTA Insight will comply with applicable privacy and data protection laws governing its processing and storage of Personal Data. For more information please consult the Privacy Policy page here.

11. DATA

This section expressly excludes Personally Identifiable Information (please see the Privacy & Security section).

11.1 Customer Data. “Customer Data” means all data, information, know-how, material or input uploaded to any Software or transmitted through the Services by or for the Customer and/or any authorized user. Customer Data expressly excludes Personally Identifiable Information.

11.2 Customer grants OTA Insight a non-exclusive, worldwide, royalty-free license to process, reproduce, display, copy, communicate, create derivative works and otherwise use Customer Data solely:

1. 1. to the extent necessary to perform its obligations or enforce its rights under the Agreement,
      
   2. where required or authorized by law or
      
   3. as otherwise set out in this Agreement.
      

11.3 The Customer shall own all right, title and interest in the Customer Data. The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

11.4 Customer is solely responsible for ensuring that Customer Data does not violate applicable laws and regulations or third-party intellectual property rights, and Customer will take reasonable steps to identify and promptly remove any such Customer Data that does not conform. Customer represents and warrants that it has all the necessary rights and consents to collect, share and use all Customer Data as contemplated in this Agreement (including access to Customer Data through Third Party Applications) and that no Customer data will not violate or infringe

1. 1. any third party intellectual property rights,
      
   2. laws, regulations or policies,
      
   3. any other terms or agreements governing the Customer’s rights and obligations with third parties. Customer warrants that Customer Data will not include any Personally Identifiable Information (e.g., hotel guest personal information).
      

11.5 OTA Insight shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by OTA Insight to perform services related to Customer Data maintenance and back-up).

11.6  Aggregated and anonymous data.

OTA Insight shall have the right to collect, use, analyse or otherwise process Customer Data and other information relating to the provision, use and performance of various aspects of the Products and Services and related systems and technologies (including information concerning Customer Data and data derived therefrom) in an anonymized and aggregated form for product development, product improvement or otherwise exploit for commercial purposes.
More specifically, OTA Insight will be free (both during and after the term of this Agreement):

1. 1. to use such Customer Data to improve and enhance the Products and Services and for other development purposes;
      
   2. to use such derived data in connection with its business, including for the training of machine learning algorithms (on an aggregated and anonymized basis) and for any other data processes deployed by OTA Insight; and
      
   3. to disclose such data to third parties solely in aggregated and anonymized form reasonably necessary.
      
   4. develop, publish and commercialise benchmarks and similar informational reports.
      
   5. OTA Insight will not process or otherwise incorporate Customer Data, Personally Identifiable Data or Confidential Information in a form that could serve to identify Customer or any individual.
      
   6. OTA Insight retains all intellectual property rights in information derived from aggregated and anonymised Customer Data.
      

11.7 Benchmarking. Subscription by the Customer (or any of its participating properties) to any of OTA Insight’s benchmarking products and services shall:

1. automatically lead to inclusion of the Customer Data in the anonymized and aggregated benchmarking Products;
2. automatically lead to the inclusion of the Customer’s Participating Property name in the compset selection feature. Any data derived from the compset selection feature shall be anonymous and aggregated.

12. THIRD PARTY INTERACTIONS

12.1 Third Party Applications. The Services may enable access to or include an integration with third party software or applications (collectively, “Third Party Applications”). Any such activity (and any terms, conditions, warranties or representations associated with such activity), is governed solely between the Customer and the Third Party Application. The Customer warrants that it has obtained the necessary licenses and permissions to permit OTA Insight access to such Third Party Application (including access to Customer’s Data hosted on such Third Party Application and use thereof). OTA Insight disclaims any and all liabilities arising from or related to Third Party Applications including access thereto and data usage. Customer acknowledges and agrees that OTA Insight is not responsible for, and has no obligation to control, monitor, or correct Third Party Applications. Customer acknowledges that:

1. 1. the nature, type, quality and availability of Third Party Applications may change at any time; and
      
   2. features of the Services that interoperate with Third Party Applications depend on the continuing availability of such Third Party Application. OTA Insight may need to update, change or modify the Services as a result of a change in, or unavailability of, such Third Party Applications.
      

13. INDEMNIFICATION

13.1 OTA Insight. OTA Insight will:

1. 1. defend at its expense and
      
   2. pay any damages finally awarded by a court of competent jurisdiction (or settlement amounts agreed to in writing by OTA Insight) for third-party claims alleging the following:
      
   3. the Products and Services directly infringe a third party’s intellectual property rights;
      
   4. a breach by OTA Insight of its obligations under applicable data protection laws and regulations.
      

13.2 Customer. Customer will:

1. 1. defend at its expense and
      
   2. pay any damages finally awarded by a court of competent jurisdiction (or settlement amounts agreed to in writing by Customer) for third-party claims as a result of
      
   3. an alleged infringement or violation by the Customer Data of such third-party’s intellectual property rights; or
      
   4. OTA Insight’s use of the Customer Data violating applicable law, provided that such use is in accordance with the terms of this Agreement.
      

13.3 Conditions. The indemnification obligations under this article are subject to the indemnified Party:

1. 1. promptly giving written notice of the claim to the indemnifying Party;
      
   2. giving the indemnifying party sole control of the defines, negotiation, and settlement of the indemnified portion of the claim; and
      
   3. providing the indemnifying Party with all reasonable assistance required to effectively defend the claim.
      

13.4 Exceptions. Neither party will have any indemnification obligation or liability regarding a third-party intellectual property infringement claim when the infringement was caused by:

1. 1. a combination of the Products and Services with any component not supplied by OTA Insight;
      
   2. unauthorized alteration or modification of the Products and Services by anyone other than OTA Insight.
      

13.5 IP Remedies. In the defines or settlement of any third-party intellectual property infringement claim, OTA Insight may, at its sole option and expense:

1. 1. procure for Customer a license to continue using the Products and Services in the same manner as anticipated by the Agreement;
      
   2. replace or modify the allegedly infringing Products and Services to avoid the infringement at no additional cost to Customer; or
      
   3. terminate Customer’s license and access to the Products and Services (or its infringing part) and refund any prepaid unused Fees as of the date of termination. Customer will not be entitled to direct damages for any third-party intellectual property infringement Claim resolved by OTA Insight pursuant to this section.
      

14. LIMITATION OF LIABILITY

14.1 Nothing in this Agreement shall exclude the liability of OTA Insight

1. 1. for death or personal injury by OTA Insight’s negligence;
      
   2. for fraud or fraudulent misrepresentation or
      
   3. for any liability for which it would be unlawful to exclude or attempt to exclude liability.
      

14.2 To the extent permitted by law, neither Party will, under any circumstances, be liable to the other Party or to any third party for indirect, consequential, incidental, special or exemplary damages, business interruption, lost profits, loss of sales, loss of turnover, revenue or business, loss of customers, loss of contracts or opportunity; loss of or damage to reputation or goodwill; loss of anticipated savings; loss of any software or data; loss of use of hardware, software or data; loss or waste of management or other staff time arising out of or relating to this Agreement.

14.3 Liability cap. To the extent permitted by law and except for excluded claims under no circumstances will either Party’s total liability of all kinds arising out of or related to the Agreement, regardless of the forum and regardless of whether any action or claim is based on contract, tort or otherwise, exceed two times the total amounts payable by the Customer under the Agreement during the 12 months immediately preceding the date of the event giving rise to the claim.

15. MISCELLANEOUS

15.1 Purchase Order. Terms or conditions in a Customer’s purchase order or similar document submitted by the Customer do not form part of this Agreement and are null and void unless otherwise agreed between the Parties.

15.2 Entire Agreement & variations. The Agreement contains the entire understanding of the Parties relating to the subject matter and supersedes all earlier agreements, understandings, proposals, discussions, negotiations, representations, and warranties, both written and oral, regarding the subject matter. All variations to this Agreement must be agreed, set out in writing and signed on behalf of both Parties before they take effect.

15.3 Assignment. A Party shall not, without the prior written consent of the other, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement to any third party other than an Affiliate. Notwithstanding the foregoing, either Party may assign the Agreement in its entirety (including all rights and obligations) without consent of the other Party in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. Any purported assignment in violation of this section will be null and void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns

15.4 Notice. All notices and consents relating to this Agreement (but excluding any proceedings or other documents in any legal action) must be made in writing (email to suffice).

15.5 Waiver. No failure or delay by either Party in exercising any right under the Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies.

15.6 Force Majeure. Neither Party will be liable for, or be considered to be in breach of, the Agreement on account of any delay or failure to perform as required by the Agreement as a result of any unforeseeable or exceptional situation beyond its reasonable control, so long as the non-performing Party:

1. 1. did not cause such situation by its own negligent acts or omissions and
      
   2. exercised all due diligence and used commercially reasonable efforts to avoid such situation and mitigate the impact.
      

15.7 Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be illegal, unenforceable, or invalid, the provision may be interpreted by the court so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remainder of the Agreement will remain in full force and effect.

15.8 Relationship. Nothing in this Agreement shall or is intended to create a partnership or joint venture between the parties, constitute one party as agent of the other or give either party authority to make or enter into commitments, assume liabilities or pledge credit on behalf of the other party. Neither party may act as if it were, or represent (expressly or by implying it) that it is an agent of the other or has such authority.

15.9 Governing law, venue. Unless otherwise agreed, this Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of and in the following venue subject to the OTA Insight Group Member the Customer has concluded an Agreement with:

16. DEFINITIONS

16.1 In this Agreement, where the context so admits, the following words and expressions shall have the following meanings: “Customer” means the customer subscribing to the Products and/or Services either on behalf of itself or managed, owned or franchised properties. “Confidential Information” means all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of this Agreement), including all information relating to that other’s or its Group Members’ business, operations, systems, processes, products, trade secrets, know how, contracts, finances, plans, strategies or current, former or prospective clients, customers, partners or suppliers (together with copies made of any o f the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential, but excluding information which:

1. is available to the public other than because of any breach of this Agreement;
2. is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or
3. is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others.

“Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action);

“Ordering Document” means the ordering document which references these terms and conditions;

“OTA Insight Content” means all data, information and material owned by or licensed to OTA Insight or any of its Group Members and comprised within any Product and/or the Service, but excluding Customer Data and Customer Materials;

“Product(s)” means the OTA Insight product(s) as set out in the Agreement;

“Participating Properties” means hotels or other similar guest properties owned and/or operated by the Customer subscribed to the Products or Services;

“Service” means the service to be provided by OTA Insight consisting of provision of access to the Product(s) on a software as a service (SaaS) basis;

“Software” means any software owned by or licensed to OTA Insight or any of its Group Members and which forms part of, or is used in the provision of, any Product or the Service.

“Taxes” means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign.