Terms and Conditions

TRAVELDESK MASTER TERMS & CONDITIONS

These TravelDesk Master Terms & Conditions (the “Terms of Service”) are applicable to, and govern, each agreement, statement of work, services agreement, purchase order, subscription order, or other contract with MMGY Roam, LLC d/b/a TravelDesk. (“TravelDesk”) that references these Terms of Service (the “Agreement”). A person or entity that enters into an Agreement with TravelDesk is referred to herein as “Customer” and each of Customer and TravelDesk are referred to herein individually, as a “Party” or collectively as the “Parties.” Any services or products ordered under an Agreement are referred to herein as the “Services.” In connection with an Agreement, Customer may also request support services from TravelDesk for the Services as further described therein and on relevant purchase orders (“Support Services”). In addition, TravelDesk may provide (i) implementation and activation services as further described in the Agreement and (ii) optional professional services as further described in the Agreement (collectively, “Professional Services”). The terms and conditions contained in the Agreement and these Terms of Service govern the provision of the Services, the Support Services, and the Professional Services to Customer and by signing the Agreement Customer agrees to be bound to these Terms of Service.

Identification of Parties. The term “Party” includes any Affiliates. “Affiliate” means a business entity controlling, controlled by or under common control, directly or indirectly, with a Party. For purposes of defining Affiliate only, “control” means ownership of more than fifty percent (50%) of the voting stock or other voting ownership interest in an entity. “Representative” means any person acting on behalf of either Party as individual contractors, directors, legal or accounting advisors, or employees.
Use of Service. During the term of the Agreement, and after configuration and implementation by TravelDesk, Customer may access and use the Services, Support Services and Professional Services described in the Agreement pursuant to the terms and conditions in the Agreement and these Terms of Service. TravelDesk grants Customer a limited, revocable, non-exclusive, nontransferable, right to use the materials or intellectual property TravelDesk provides to Customer in connection with its use of the Services (the “TravelDesk Supplied Materials”). TravelDesk Supplied Materials includes TravelDesk Materials that are provided by TravelDesk to Customer in connection with Customer’s use of the Services. “TravelDesk Materials” includes the following: any technology embodied or implemented in the Services; any computer code provided by TravelDesk for Customer’s website or computer network; any cookies installed by TravelDesk; any “pixel” provided to Customer, or installed, by TravelDesk; any hosting environment made accessible to Customer for purposes of obtaining the Services; any suggestions, ideas, enhancement requests, or feedback related to the Services; any data pre-existing in TravelDesk’s network, any user device data, device information, machine learning data, user data persistent in the TravelDesk network, device reports, or transaction histories; and any corollaries, associations, and TravelDesk conclusions pertaining to or arising out of any of the foregoing, TravelDesk Supplied Materials, and any and all TravelDesk Data (which is, collectively, data obtained by TravelDesk from Customer and others which is placed in aggregate form to provide Services to Customer and others, and any corollaries and conclusions TravelDesk derives from its provision of the Services, and any derivative data created by TravelDesk, in models, aggregations, algorithms, look-ups, or other such operations).TravelDesk retains all right, title, and interest in and to the Service and the TravelDesk Materials, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, and the Agreement and these Terms of Service do not grant Customer any intellectual property rights in the Service or any of its components. Customer shall use the Services and the TravelDesk Supplied Materials solely for its own internal legitimate business purposes, namely to curate audiences and segments for its business intelligence purposes. Customer shall not: (i) interfere with or disrupt the integrity or performance of the Services or TravelDesk Materials; or (ii) attempt to gain unauthorized access to the Services or their related systems or networks. Customer will provide data to TravelDesk as may be necessary for TravelDesk to provide to Customer the Services. Customer will take such actions as may be legally and technically necessary to allow TravelDesk to collect and process data from Customer in connection with the Services.
Legal Compliance. Customer will use the Services, Support Service and Professional Services in compliance with applicable law including, without limitation, those laws related to privacy and data protection, international communications, and the transmission of technical or personal data. Without limiting the generality of the foregoing, Customer will be responsible for any notifications required to or approvals, consents, or authorizations required from its customers arising out of any use of the Services, Support Services or Professional Services including, without limitation, those relating to any computer code deposited on any device and any information secured from such customers (or their respective devices). Customer also will be responsible for compliance with laws and regulations in all applicable jurisdictions concerning the data of its customers and for any decisions and actions Customer takes concerning such data. Subject to the foregoing, TravelDesk will provide the Services in compliance with applicable law and, to the extent applicable, subject to the TravelDesk Data Processing Addendum attached hereto as Exhibit A and incorporated in these Terms of Service by reference.
Use of Marks. Customer may place on its website the TravelDesk logo solely in the form and under the use criteria provided by TravelDesk. No other use of the TravelDesk logo is permitted, and Customer shall have no right to otherwise copy, distribute, transmit, or transfer, such logo or any other mark of TravelDesk. All goodwill associated with the use of TravelDesk’s marks or logos inure to TravelDesk. Customer agrees to allow TravelDesk to reference the relationship described in the Agreement and to cooperate with TravelDesk to promote TravelDesk’s services, including, but not limited to, developing a joint published and named case study regarding the value of TravelDesk’s services, a press release, a customer reference, and use of Customer’s name and logo.
Ownership. Customer acknowledges and agrees that (i) it has no ownership right in the Services or the TravelDesk Materials, (ii) Customer will not challenge TravelDesk’s (or TravelDesk’s licensors’) ownership rights to the Services or the TravelDesk Materials, (iii) TravelDesk (and its licensors, where applicable) owns all right, title and interest, including all related intellectual property rights, in and to the Services, the Professional Services (or any work product or deliverables created or developed by Dara in connection therewith) and the TravelDesk Materials, any software delivered to Customer, any hosting environment made accessible to Customer, any technology embodied or implemented in the Services and TravelDesk Materials, and any computer code provided by TravelDesk for Customer’s particular website and computer network. The TravelDesk name, the TravelDesk logo, and the product names associated with the Services are trademarks of TravelDesk or third parties, and no right or license is granted to use them. All rights not expressly granted to Customer are reserved by TravelDesk, and Customer shall have no rights which arise by implication or estoppel.
Limitations. The Services provided pursuant to the Agreement and these Terms of Service are not provided by “consumer reporting agencies,” as that term is defined in the Fair Credit Reporting Act (15 U.S.C. § 1681, et seq.) (“FCRA”) and do not constitute “consumer reports,” as that term is defined in the FCRA. Customer certifies that it will not use the Services to determine, in whole or in part an individual’s eligibility for any of the following products, services or transactions: (1) credit or insurance to be used primarily for personal, family or household purposes; (2) employment purposes; (3) a license or other benefit granted by a government agency; (4) or any other product, service or transaction in connection with which a consumer report may be used under the FCRA or any similar state statute, including without limitation apartment rental, check-cashing, or the opening of a deposit or transaction account. Further, Customer may not use the Services to take any “adverse action,” as that term is defined in the FCRA. In addition, Customer shall not, and shall not permit any third party to: (a) copy all or any portion of any TravelDesk Materials; (b) decompile, disassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the contrary) the Services or TravelDesk Materials, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Services or any TravelDesk Materials or any portion thereof; (c) modify, translate, or otherwise create any derivative works based upon the Services or TravelDesk Materials; (d) distribute, disclose, market, rent, lease, assign, sublicense, pledge, or otherwise transfer the Services or TravelDesk Materials, in whole or in part, to any third party; or (e) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on the Services or in any TravelDesk Materials.
Invoices, Fees, Payment and Taxes. TravelDesk will issue an invoice to Customer for the Services, Support Services, and Professional Services (i) upon execution of the Agreement or (ii) in advance for each period for which Customer purchases a subscription to the Services, Support Services, or Professional Services, as determined by TravelDesk in its sole discretion. All pricing shall be set forth in the applicable Agreement. Each Agreement will include a term for the Services, Support Services, and/or Professional Services (the “Term”) and may include a maximum for the number of “audiences” or “segments” Customer may obtain during the Term and/or other limits on the use of the Services, Support Service, or Professional Services (the “Cap”). If, for any reason, Customer consumes more Services, Support Services, or Professional Services than set forth in the Cap during the Term, TravelDesk may, at its sole discretion, either (1) cancel and/or suspend Customer’s access to the Services, Support Services, and Professional Services or (2) charge and invoice Customer, at then-prevailing rates, for such excess Services, Support Services, and Professional Services until Customer enters into an order with TravelDesk to purchase additional Services, Support Services or Professional Services. Customer shall reimburse TravelDesk for its reasonable costs and expenses incurred in connection with providing the Support Services.All invoices are due and payable thirty (30) days after the invoice date. Delinquent invoices (accounts in arrears) are subject to interest of one percent (1.0%) per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. TravelDesk shall have the right, and may at any time without notice to Customer, reduce and set-off any amounts owed by, or other liability of, TravelDesk to Customer or its Affiliates (under this Agreement or any other agreement between TravelDesk and Customer or any Affiliate) against any liability of Customer under this Agreement, whether either liability is present or future, liquidated or unliquidated, and whether either liability arises under this Agreement. Any exercise by TravelDesk under this right of set-off shall not limit or affect any other rights or remedies available to TravelDesk under this Agreement or otherwise. TravelDesk reserves the right to modify its fees and charges and to introduce new charges at any time and anticipates that it will increase its fees annually based on the consumer price index plus five percent; provided, however, that pricing on all previously purchased Services, Support Services, and Professional Services are not subject to price changes and shall remain as purchased. All pricing terms are Confidential Information, and Customer agrees not to disclose them to any third party. All payments to TravelDesk are exclusive of any tax levied by any duly constituted taxing authority including, without limitation, any sales, gross receipts, value-added taxes, tax surcharges, direct or indirect government assessment fees or any other tax imposition on the Services, Support Services, or Professional Services, which Customer agrees to pay to TravelDesk if and when such tax is presented for payment on an invoice issued by TravelDesk to Customer or directly to the appropriate taxing authority when such tax is assessed against Customer.
Discontinuation of Services. TravelDesk reserves the right to suspend or terminate the Agreement and Customer’s access to the Services, Support Services, Professional Services, and TravelDesk Materials, without notice, if (a) Customer fails to pay any amount when due or its account otherwise becomes delinquent (falls into arrears), or (b) Customer violates any term of the Agreement or these Terms of Service. Upon such termination, all unconsumed Services, Support Services, and Professional Services shall expire immediately. TravelDesk may cease providing the Professional Services at its convenience and without notice, effective upon the completed use of all Professional Services for which payment has been received by TravelDesk
Confidentiality.
1. Information Covered. In connection with the Agreement, each Party hereto (a “Disclosing Party”) has furnished or may in the future furnish Confidential Information to the other Party (a “Receiving Party”). Confidential Information includes information furnished to a Receiving Party or a Receiving Party’s Representatives by a Disclosing Party or a Disclosing Party’s Representatives. Except as set forth below in this paragraph, “Confidential Information” means all non-public, confidential or proprietary information of or about Disclosing Party that is received by Receiving Party (or its Representatives) which relates to Disclosing Party’s business and/or business partners (including without limitation, business plans, financial data, pricing information, marketing, finances, customer and consumer information, personal information, and marketing plans), technology (including without limitation, drawings, designs, schematics, engineering, algorithms, processes, source code, technical data, product plans, research, software, and other confidential intellectual property), products, services, Trade Secrets, know-how, formulas, processes, ideas, and inventions (whether or not patentable), TravelDesk Material, or other information which should be reasonably understood by Receiving Party as the confidential or proprietary information of Disclosing Party. For the purposes of the Agreement and these Terms of Service, the term “Trade Secret” shall be deemed to include any information which gives Disclosing Party an advantage over competitors who do not have access to such information as well as all information that fits the definition of “trade secret” set forth in California Civil Code Section 3426.1. Confidential Information will not include any information that Receiving Party can document: (i) is or becomes generally known to the public without fault of Receiving Party; (ii) was in its possession or known by it without any obligation of confidentiality prior to receipt pursuant to the Agreement; (iii) is independently developed by Receiving Party without use of or reference to the Confidential Information; or (iv) is rightfully obtained by Receiving Party from a third party without any obligation of confidentiality to Disclosing Party. Disclosing Party understands that Receiving Party may currently or in the future be developing information internally, or receiving information from other parties, that may be similar to Disclosing Party’s Confidential Information. Accordingly, nothing in the Agreement or these Terms of Service shall be construed as a representation or inference that Receiving Party will not develop products, or have products developed, that compete with the products or systems contemplated by Disclosing Party’s Confidential Information.
2. Receiving Party’s Obligations. Confidential Information of Disclosing Party may be used by Receiving Party solely for the purposes anticipated in the Agreement or these Terms of Service and may not be used for any other purpose. Subject to the terms specified in Section 9.3, Receiving Party shall hold Disclosing Party’s Confidential Information in strictest confidence and may not use or disclose Disclosing Party’s Confidential Information, except as expressly permitted herein, without the prior written consent of Disclosing Party, which consent may be granted or refused in Disclosing Party’s sole discretion. Receiving Party shall take all reasonable measures to protect the Confidential Information of Disclosing Party from becoming known to the public or falling into the possession of persons other than those persons authorized to have any such Confidential Information, which measures shall include the highest degree of care that Receiving Party uses to protect its own information of a similar nature, but in no event less than a reasonable degree of care. Receiving Party may disclose Disclosing Party’s Confidential Information only to its Representatives who have a legitimate “need to know,” have been advised of the obligations of confidentiality under the Agreement and these Terms of Service and are bound in writing to obligations of confidentiality no less stringent than those set out in these Terms of Service. Receiving Party will be liable for any breach of the Agreement and these Terms of Service by its Representatives. Nothing in the Agreement or these Terms of Service will prohibit Receiving Party from disclosing Confidential Information of Disclosing Party if legally required to do so by judicial or governmental order or in a judicial or governmental proceeding (“Required Disclosure”); provided that Receiving Party shall: (i) where permitted, give Disclosing Party reasonable notice of such Required Disclosure prior to disclosure; (ii) cooperate with Disclosing Party in the event that it elects to contest such disclosure or seek a protective order with respect thereto; and (iii) in any event only disclose the exact Confidential Information, or portion thereof, specifically requested by the Required Disclosure.
3. Confidentiality Period; Return of Confidential Information. The confidentiality obligations with respect to any disclosure will survive and continue for a period of three (3) years after the Agreement terminates, except that the obligations with respect to Confidential Information constituting a Trade Secret shall survive for so long as such information remains a Trade Secret under applicable law. Immediately upon either the written request by Disclosing Party at any time or the termination of the Agreement, Receiving Party shall cease all use of and return to Disclosing Party all copies or extracts of Disclosing Party’s Confidential Information, in any medium, or certify, in writing by an authorized officer of Receiving Party, the destruction of the same.
4. Remedies. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations under this Section 9, that any such breach may allow Receiving Party or third parties to compete unfairly with Disclosing Party resulting in irreparable harm to Disclosing Party and, therefore, that upon any such breach or any threat of breach of this Section 9, Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law. Each Party agrees that monetary damages would be inadequate to compensate the other Party for any breach of this Section 9. Receiving Party will notify Disclosing Party in writing immediately upon the occurrence of any such unauthorized release or other breach of which it is aware.
Indemnification.
1. TravelDesk’s Indemnity. Subject to the limitations set forth below, TravelDesk shall defend, indemnify and hold harmless Customer from all liabilities and reasonable expenses (including, but not limited to, attorneys’ fees), judgments, fines or penalties which Customer incurs as a result of any claim that the Services, as used within the scope of the Agreement, infringe the intellectual property rights of a third party; provided that in no event shall TravelDesk’s aggregate liability to Customer under this Section 10 exceed $2,000,000 and which shall be recoverable under policies insuring TravelDesk with respect to such claims. If Customer believes it is entitled to indemnification, Customer must (a) notify TravelDesk in writing of any claim promptly upon learning of the claim; (b) provide TravelDesk with sole control of the defense and all related settlement negotiations; and (c) cooperate with TravelDesk, at TravelDesk’s expense, in defending or settling the claim. In connection with providing such indemnification, TravelDesk, at its sole option, may: (i) obtain for Customer the right to utilize the Services in accordance with the Agreement; or (ii) use commercially reasonable efforts to make the Services non-infringing without materially diminishing the Services’ utility to Customer. TravelDesk shall have no liability for any claim of infringement if such infringement arose solely out of Customer’s data or Customer’s misuse of the Services. THIS SECTION STATES TRAVELDESK’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
2. Customer Indemnity. Customer shall defend, indemnify and hold harmless TravelDesk, its Affiliates, and their licensors, and each of their respective officers, directors, employees, attorneys and agents from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) any claim alleging that use of any information or data provided by Customer, any of its customers, or any individual or entity whose information Customer has indicated should be used in connection with TravelDesk’s performance of the Services, Support Services, or Professional Services, infringes the rights of, or has caused harm to, a third party, (ii) Customer’s alleged or actual use or misuse of the Services, Support Services, or Professional Services, including without limitation, claims by Customer’s users, customers, subscribers, and employees, or (iii) Customer’s failure to provide data to TravelDesk in the format prescribed by TravelDesk
Disclaimers of Warranty; Limitation of Liability. THE SERVICES, SUPPORT SERVICES AND PROFESSIONAL SERVICES INCLUDING, WITHOUT LIMITATION, THE TRAVELDESK MATERIALS, AND ANY OTHER SERVICES PROVIDED UNDER ANY EXHIBITS, ARE PROVIDED AS IS. TRAVELDESK HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, WITH RESPECT TO THE SERVICES, TRAVELDESK MATERIALS, PROFESSIONAL SERVICES, AND SUPPORT SERVICES INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE PRACTICE. EXCEPT FOR TRAVELDESK’S OBLIGATIONS UNDER SECTIONS 9 AND 10, IN NO EVENT SHALL TRAVELDESK’S AGGREGATE LIABILITY FOR ANY CLAIM OR COMBINATION OF CLAIMS EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO TRAVELDESK UNDER THE APPLICABLE AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL TRAVELDESK AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, TRAVELDESK MATERIALS, PROFESSIONAL SERVICES, OR SUPPORT SERVICES INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE THE SERVICES, TRAVELDESK MATERIALS, PROFESSIONAL SERVICES, OR SUPPORT SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF TRAVELDESK HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Force Majeure. Neither Party shall be liable hereunder by reason of any delay or failure in the performance of its obligations if such delay arises out of causes beyond its control including, without limitation, use of the internet and electronic communications, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, electrical outages, computer or communications failures, internet failures or malfunction, severe weather, war, governmental action, labor conditions, and acts or omissions of subcontractors or third parties (“Force Majeure Event”). The Party prevented from performing its obligations or duties because of a Force Majeure Event shall promptly notify the other Party of the occurrence and particulars of such Force Majeure Event and shall provide the other Party, from time to time, with its best estimate of the duration of such Force Majeure Event and, if applicable, with notice of the termination thereof.
Assignment. Neither the Agreement nor these Terms of Service nor the license granted herein may be assigned by Customer, in whole or in part, without the prior written consent of TravelDesk, including, without limitation, by way of dissolution, merger, consolidation, reorganization, or sale or other transfer of assets or properties or change of control. A sale or other transfer of a controlling interest of twenty percent (20%) or more of Customer shall be deemed a change of control and an assignment. Any actual or proposed change in control of Customer that results or would result in a direct competitor of TravelDesk directly or indirectly owning or controlling 20% or more of Customer shall entitle TravelDesk to terminate the Agreement for cause immediately upon written notice. Any actual or proposed assignment in violation of this Section 13 shall entitle TravelDesk to terminate the Agreement for cause immediately upon written notice. TravelDesk shall have the right to assign any Agreement by way of merger, consolidation, reorganization, sale or other transfer of assets or properties, a change of control, or otherwise without the consent of Customer.
Notice. TravelDesk may give notice by means of a general notice on the Services, electronic mail to Customer’s e-mail address on record in TravelDesk’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in TravelDesk’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing (if sent by first class mail or pre-paid post) or posting as a general notice on the Services, or twelve (12) hours after sending (if sent by electronic mail). Customer may give notice to TravelDesk (such notice shall be deemed given when received by TravelDesk) at any time by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail to TravelDesk at the following address: 7309 W 80^th Street, Suite 400, Overland Park, KS 66204
Usage Review. Customer understands and agrees that, to ensure compliance with state or federal laws, regulations, or rules, regulatory agency requirements, TravelDesk’s obligations under its contracts with its data providers, and TravelDesk’s internal policies, TravelDesk may conduct periodic usage reviews of Customer’s use of the Services. Customer agrees to cooperate fully with all usage reviews and to respond to any such inquiry within ten (10) business days unless an expedited response is required. Violations discovered in any review and/or audit by TravelDesk will be subject to immediate action including, but not limited to, suspension or termination of the Agreement or Customer’s right to use the Services, reactivation fees, legal action, and/or referral to federal or state regulatory agencies.
Additional Provisions for Professional Services. Customer shall provide, in a timely manner, and at no cost to TravelDesk, assistance, cooperation, complete and accurate information and data, and other resources reasonably requested by TravelDesk to enable it to perform the Professional Services (collectively, “Assistance”). TravelDesk shall not be liable for any deficiency in performing the Professional Services if such deficiency results from Customer’s failure to provide full Assistance as required hereunder. For implementation and activation services, Assistance includes, without limitation, designating a project manager (the “Project Manager”) to interface with TravelDesk during the course of performing the Professional Services, designating the technical representative who will be charged with deployment of the Services, and identifying a representative that will manage the Services after deployment. Pursuant to the table in Exhibit B, which assigns owners for tasks, TravelDesk will work with Customer to provide the implementation and activation Professional Services.
Anti-Bribery and Anti-Corruption. Customer represents and warrants that it shall neither take nor refrain from taking any action that could result in liability for TravelDesk under any anti-corruption or anti-bribery laws including, without limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act of 2010, plus any other anti-bribery or anti-corruption law or treaty applicable to Customer or, if applicable, its Affiliates. Customer has and shall maintain in place throughout the Term policies and procedures to confirm compliance with applicable Laws relating to anti-bribery and anti-corruption. Customer shall not accept, offer, or make any payment or provide anything else of value, or take or fail to take any other action which is either prohibited or required by applicable Laws in connection with the Agreement.
Entire Agreement; Severability; Signature and Delivery. The Agreement entered into between Customer and TravelDesk, which is comprised of the Agreement, these Terms of Service and exhibits and related subscription orders and statements of work, contains all of the covenants and agreements between the Parties with respect to the rendering of the Services, Support Services, or Professional Services and any other matter hereunder, and supersedes any and all prior negotiations, representations and agreements, whether written or oral, between the Parties with respect to the rendering of such Services, Support Services and Professional Services and any other matter hereunder. Each Party acknowledges that no representations, inducements, promises or agreements, orally or otherwise have been made by any Party. No other agreement, statement or promise not contained in these Terms of Service, and no changes or modifications to these Terms of Service, shall be effective unless it is in writing and signed by both Parties. If any court of competent jurisdiction holds any provision of the Agreement or these Terms of Service to be illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect.
Waivers. All waivers hereunder must be made in writing by a duly authorized representative of the Party against whom the waiver is to operate, and failure at any time to require the other Party’s performance of any obligation under the Agreement shall not affect the right subsequently to require performance of that obligation. No delay, failure or waiver of either Party’s exercise or partial exercise of any right or remedy under the Agreement will operate to limit, impair, preclude, cancel, waive, or otherwise affect such right or remedy. No waiver of any provision of the Agreement or these Terms of Service will constitute a waiver of any other provision(s) or of the same provision on another occasion.
Governing Law; Forum; Legal Costs. The Agreement and these Terms of Service will be construed and governed by the laws of the State of Kansas, without giving effect to its conflicts of law principles. The Parties submit to the personal jurisdiction of and agree that any legal proceeding with respect to or arising under the Agreement or these Terms of Service will be brought solely in, the state courts in and for Johnson County, Kansas. If any legal action or proceeding is commenced in connection with any dispute arising under, relating to, or otherwise concerning the Agreement or these Terms of Service, the prevailing Party, as determined by the court, will be entitled to recover its attorneys’ and experts’ fees and all costs and necessary disbursements actually incurred in connection with such action or proceeding.
Survival. Sections 5, 7-11, and 16-21 shall survive any termination of the Agreement.
Miscellaneous. Headings and titles used in these Terms of Service are for convenience only and shall not affect the interpretation of these Terms of Service. The Agreement and these Terms of Service are the result of arm’s length negotiations between the Parties and shall be construed to have been drafted by all Parties such that any ambiguities in the Agreement or these Terms of Service shall not be construed against either Party. The English language version of the Agreement and these Terms of Service shall govern. No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms of the Agreement or these Terms of Service, unless such document references these Terms of Service and is signed by authorized representatives of both parties. No joint venture, partnership, employment, or agency relationship exists between Customer and TravelDesk as a result of the Agreement.

EXHIBIT A

DATA PROCESSING ADDENDUM (EU)

This Data Processing Addendum applies to Personal Data of residents of the European Economic Area (EEA) for adequate safeguards with respect to the protection of Personal Data as required by European Union Data Protections Laws for the processing of analytics activities under this Agreement.

1. Definitions
  For the purposes of this Agreement, the following terms shall have the following meanings:
  1. “Data Protection Laws” means any law, rule or regulation relating to the processing, privacy, and use of Personal Data, as applicable to TravelDesk or Customer, including, without limitation (i) as of 25 May 2018 the General Data Protection Regulation (EU) 2016/679 (GDPR), and/or any local and national laws, rules and regulations implementing GDPR or imposing specific privacy-related regulations where GDPR permits; (ii) Privacy Laws; and (iii) any other applicable data protection and privacy laws, rules, and regulations, and “Data Controller”, “Data Processor”, “Data Subject” and “processing” shall have the meanings given to those terms under Data Protection Laws.
  2. “EEA” means the European Economic Area.
  3. “Privacy Laws” means (i) in member states of the European Union and the United Kingdom: any laws or regulations implementing Directive 2002/58/EC (ePrivacy Directive) and the Regulation concerning the respect for private life and the protection of personal data in electronic communications (Regulation on Privacy and Electronic Communications) 2017/0003 (COD)s; (ii) any judicial or administrative interpretation of any of the above, any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority; and (iii) where agreed by the parties in writing industry self-regulatory codes of practice.
  4. “Personal Data” means all personal data as defined under Data Protection Laws and which is processed by the parties in relation to this Agreement.
  5. “Personal Data Breach” means the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any Personal Data processed by TravelDesk pursuant to this Agreement.
  6. “Supervisory Authority” means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws.
2. Data. Customer does not acquire any interest in the “TravelDesk Data”, i.e. that is data obtained by TravelDesk from Customer and others that is placed in aggregate form to provide services to Customer and others, or in the services provided by TravelDesk with regard to the collection and processing of such Data. Except as provided above, as between Customer and TravelDesk, Customer will own all “Customer Data”, i.e. data provided by Customer to TravelDesk or obtained by TravelDesk through the issuance of pixels through Customer’s website(s) or digital media. Without limitation, as between TravelDesk and Customer, TravelDesk owns, and shall continue to own, all intellectual property and other proprietary rights in and to the TravelDesk Data and its collection services. Customer shall make no effort to reverse engineer or create derivative data products.
3. Personal Data
  Protection and Privacy.
  1. The Parties agree that (i) both TravelDesk and Customer are Data Controllers in respect of all Personal Data processed in relation to services. Both Parties shall comply with all Data Protection Laws which apply to it in respect of the performance of its obligations under this Agreement. The Parties agree that they are not joint controllers of any data.
  2. Customer shall be responsible for obtaining consent and providing transparency notices to each data subject, and/or ensuring its clients (as appropriate) obtain consent and provide transparency notices to each data subject, in compliance with, and where required by, applicable Data Protection Laws, for (i) the processing of Personal Data by or on behalf of TravelDesk, (ii) the serving of cookies and (iii) the accessing of information from end user browsers and devices by TravelDesk, as set out in this Agreement.
  3. The Parties shall cooperate reasonably with each other in the fulfilment of their respective obligations in respect of Data Subject requests for third party notification, erasure or other requests under Data Protection Laws.
  4. A Party shall promptly notify the other Party if it receives notice of any claim or complaint in connection with Data Protection Laws by any data subject in relation to Personal Data in respect of which Customer and TravelDesk, or the Customers’ client and TravelDesk, are both Data Controllers.
  5. Taking into account the nature of and risks associated with the type of Personal Data collected or used in connection with TravelDesk’s services, each Party shall have in place appropriate technical and organizational measures to ensure a level of security appropriate to the risks that are presented by the processing of Personal Data by or on behalf of the Parties including where appropriate data protection by default and/or by design measures, and all other such measures as may be agreed between the Parties.
  6. In relation to Personal Data, the Parties will provide reasonable assistance and cooperate with each other to ensure each Party’s compliance with Data Protection Laws. Subject to obligations of confidentiality and Customer policies on the disclosure of information, where a Party has a concern that there has been non-compliance of the other Party with this Section 1, the Parties agree to exchange information to ascertain the cause of such non-compliance, and take reasonable steps to remediate such non-compliance.
  7. In relation to Personal Data, TravelDesk agrees to notify Customer of a Personal Data Breach without undue delay after becoming aware (but in no event later than 48 hours after becoming aware of the Personal Data Breach); and TravelDesk shall provide Customer within the same deadline with such details as Customer reasonably requires regarding the nature of the Personal Data Breach, any related investigations, the likely consequences, any measures taken by TravelDesk to address the Personal Data Breach, and provide Customer with regular updates on these matters. TravelDesk will co-operate reasonably with Customer including in respect of any proposed notification to a Supervisory Authority.
  8. Data retention: TravelDesk and Customer shall not retain or process the Personal Data longer than is necessary to carry out the purpose of the processing.
  9. International Transfers. The provision of TravelDesk’s services may require the transfer of Personal Data to countries outside the EEA from time to time. TravelDesk shall ensure, and shall require its Data Processors (and its data partners in general) to ensure an appropriate mechanism that is recognized by applicable Data Protection Laws is implemented to allow for the data transfer.
4. General.
  1. TravelDesk. TravelDesk agrees to indemnify, defend and hold Customer and its officers, directors, and employees harmless from and against any and all liability, claims, causes of action, suits, damages and expenses, including reasonable attorneys’ fees and costs, (collectively, “Losses”) to the extent that such is based upon a third party claim that the data collection services provided by TravelDesk without alteration, directly infringes upon the intellectual property rights of a third party. The indemnification provided by TravelDesk to Customer hereunder shall not apply to the extent any Losses arise from: (a) any use of the data by Customer in breach of this Agreement; or (b) the combination, operation, or use of the data with any product, services, data or other information not approved or provided by TravelDesk.
  2. Customer. Subject to TravelDesk’s indemnification obligations set forth above, Customer agrees to indemnify, defend and hold TravelDesk, its affiliates and their respective officers, directors, and employees harmless from and against any and all Losses to the extent that such Losses are based upon any third party claim in connection with the Customer’s use of the data and data collection services, except to the extent caused by a breach of this Agreement by TravelDesk.
  3. Obligation of Indemnified Party. The obligation to indemnify the indemnified party as set forth above shall be conditioned upon the indemnified party giving prompt written notice of claim or action for which the indemnified party is seeking indemnity and the indemnified parties’ reasonable cooperation with the indemnified party in the defense or settlement of said claim or action. The indemnifying party shall have control of the defense or settlement of any such claim or action. The indemnified party may participate in any action, at its own expense, with its own counsel. The indemnifying party agrees that it will not enter into any settlement of any claim or action unless the settlement results in a full and final release of all claims against the indemnified party.
  4. Limitation of Liability. EXCEPT FOR THE OBLIGATION TO INDEMNIFY THE OTHER PARTY AGAINST LOSSES AS PROVIDED FOR ABOVE NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE DATA OR DATA COLLECTION SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AND (B) EACH PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES PAID OR PAYABLE TO TravelDesk BY CUSTOMER HEREUNDER.

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