GENERAL TERMS AND CONDITIONS
1.1 All capitalized terms not otherwise defined herein or in the applicable Agreement have the following meanings:
(a) Agreement means, collectively, all agreements, service schedules, services agreements, order forms, pricing schedules/pricing forms, enrollment forms or any other forms (including any contract form entered into by Open Hospitality, LLC that (i) reference these General Terms and Conditions, and (ii) are executed by Pegasus and Client.
(b) Affiliate means (i) any lodging establishment that is now or hereafter owned, leased, managed, franchised or represented by Client with access to the Services; (ii) any location that is now or hereafter owned, leased or managed by Client that provides reservation services to any of the foregoing establishments; or (iii) any entity that is controlled by or under common control with Client with access to the Services.
(c) Customer or Client means the entity executing the Agreement in order to receive Services from Pegasus.
(d) General Terms and Conditions means this document and the Data Processing Addendum, incorporated here by reference.
(e) Pegasus means, as the case may be, Pegasus Solutions Companies, a Delaware corporation, or any entity that is controlled by or under common control with Pegasus Solutions Companies, that provide Services to Client.
Pursuant to a mutually agreed plan and schedule of implementation, Pegasus will provide to Client the services (“Services”) described in the Agreement. The Agreement is governed by these General Terms and Conditions.
2.2. Additional Services.
Pegasus is not obligated to provide any services to Client other than those described in the Agreement. If Pegasus provides any services to Client pursuant to a work order, statement of work or similar document, which services are not subject to an Agreement, such services will be provided pursuant to these General Terms and Conditions and the contents of the governing work order, statement of work or similar document, provided that in the event of a conflict, these General Terms and Conditions will control.
3.0 GENERAL REQUIREMENTS
3.1 Cooperation; Infrastructure.
Client agrees (a) to reasonably cooperate with, and to cause each Affiliate to reasonably cooperate with, Pegasus with respect to the implementation, maintenance, performance and modification or enhancement of the Services; and (b) at Client’s sole expense, to procure, operate, maintain and manage (or cause its Affiliates to procure, operate, maintain and manage) such hardware, software, equipment and communications services and lines as may be reasonably necessary for Client and each Affiliate to access and receive the Services (and, to the extent that the parties agree that Pegasus will provide such communications services and lines, to pay Pegasus for the same as agreed).
3.2 Modifications and Enhancements.
Pegasus reserves the right to modify or enhance the Services and related processes and procedures, provided that no such modification or enhancement affects the functionality of the Services in a material adverse manner. Pegasus will not be obligated to provide, maintain or support any release or version of any Service other than the then-current release or version of such Service or the release or version immediately preceding the then-current release or version.
3.3 Accuracy of Data.
Client will cause all Client and Affiliate information provided by Client or Affiliates to Pegasus to be complete, accurate, and current, and in the form and format reasonably required by Pegasus.
3.4 Network Security.
Each of Pegasus and Client will, and Client will cause its Affiliates to, maintain commercially reasonable security policies and procedures that are directed at (a) detecting, preventing and containing the infection of their systems by harmful or malicious code; (b) deterring the use of Client’s and Affiliates’ connections to the Services by unauthorized personnel or for unauthorized purposes; and (c) deterring improper access to, use of or loss of data residing on Pegasus’ systems by means of Client’s and Affiliates’ connections to the Services. Client will, upon Pegasus’ request, (i) identify the individuals given access by Client and Affiliates to Pegasus’ networks and systems and notify Pegasus of any changes to such group; and (ii) complete a Pegasus-provided network security survey. Pegasus will have the right to deny access by Client, an Affiliate or any individual to Pegasus’ networks and systems due to reasonable security concerns. Client will cause each third-party engaged by Client or an Affiliate to access the Services on its behalf to comply with this section, and Pegasus will be entitled to exercise any of its rights under this section with respect to such a third party.
4.0 FEES AND COSTS
4.1 Fees and Costs.
Client agrees to pay the fees and costs for the Services as set forth in the Agreement. All fees and costs are payable by Client in U.S. dollars unless otherwise specified in the Agreement.
Client will pay all sales, use, excise, value added and similar taxes and duties levied by any taxing authority in connection with Pegasus’ delivery of the Service other than taxes that are levied upon Pegasus’ net income or payroll (collectively, “Taxes”). Except as expressly stated otherwise, all fees and costs are exclusive of Taxes.
4.3 Payment of Fees and Costs.
(a) Except as otherwise provided in any Schedule, all amounts payable hereunder (i) are due within thirty (30) days of the date of receipt of each billing statement therefor; (ii) will be paid in accordance with payment instructions communicated to Client by Pegasus from time to time; and (iii) will be paid in U.S. Dollars, or such other currency as may be reflected in the subject billing statement by mutual agreement of the parties. Pegasus may deliver billing statements by delivery of paper copies or by delivery of electronic copies via e- mail. If any amount is past due hereunder, Client agrees to pay interest on such amount at the rate of one percent (1%) per month, or the maximum rate allowed by law, whichever is lower. Client shall pay any collection costs, including reasonable attorneys' fees, and other expenses incurred by Pegasus or any of its affiliates to collect any sums due under this Agreement.
(b) Client will notify Pegasus in writing, within ten (10) business days of receipt of a billing statement, of any good faith dispute concerning such statement. Such notice will include reasonable details relating to the dispute, including the amount disputed by the Client. Client’s dispute of an amount due will not relieve Client of its obligations to pay any undisputed amounts in accordance with this Agreement. The failure of Client to dispute, in accordance with this section, an amount reflected as due on a billing statement will constitute a waiver by Client of any objection to such amount.
4.4 Third-Party Costs.
Client acknowledges that any third party costs charged by Pegasus as a separate line item on a billing statement (“Third Party Costs”) may not include discounts, rebates or credits received by Pegasus. Any increases in Third-Party Costs directly related to Pegasus’ delivery of the Services may be charged to Client.
5.1 Termination Upon Breach.
If a party to this Agreement materially breaches this Agreement, the non- breaching party may give written notice to the breaching party specifying the breach or breaches that have occurred. Except as otherwise provided in any Schedule, the breaching party will be entitled to ten (10) days after receipt of such notice within which to cure any payment breach and thirty (30) days after receipt of such notice within which to cure any other breach. If the breaching party fails to cure such breach within the applicable cure period after receipt of written notice, the non-breaching party may terminate the Agreement by giving written notice to the breaching party within sixty (60) days of the expiration of the cure Further, where Pegasus is the non-breaching party, in addition to the termination rights set forth herein, Pegasus may immediately suspend all services provided to the Client if Client fails to cure any payment breach within (10) days after receipt of notice of such breach.
5.2 Termination Upon Change in Financial Position.
Pegasus may terminate the Agreement by giving written notice to the Client if the Client ceases to do business as a going concern; becomes insolvent, bankrupt or the subject of a receivership or administration; has a trustee or liquidator appointed for it; or has substantial part of its property subjected to any levy or seizure for or by any third party.
5.3 Force Majeure.
A party’s failure to comply with the terms of this Agreement, other than Client’s payment obligations, will not constitute a breach to the extent such failure results from events beyond the control of the non-compliant party, including without limitation government regulation; acts of God; terrorist acts; fire; war; civil unrest; power fluctuations or outages; or telecommunications outages or delays. If such non-compliance continues for more than thirty (30) consecutive days, either party may terminate the Agreement by giving written notice to the other party.
5.4 Agreed Damages Upon Early Termination.
Subject to Section 5.3 above, if Client takes action to terminate the Agreement before the end of their term for any reason other than Pegasus’ breach, or if Pegasus terminates the Agreement for Client’s breach, Client will pay to Pegasus as liquidated damages for such termination, and not as a penalty, any amounts described in the Agreement under the heading “Agreed Damages Upon Early Termination.” The parties agree that such amounts are liquidated damages payable to Pegasus for the termination of such Agreement and are not a penalty; that it would be difficult or impossible to ascertain Pegasus’ actual damages arising from such a termination of the such Agreement, and that the amount of such liquidated damages represents a reasonable and good faith estimate of such damages; and that such liquidated damages are not indirect, special, incidental or consequential damages for purposes of these General Terms and Conditions. Pegasus’ rights under this section are in addition to any other rights that Pegasus may have hereunder.
5.5 Survival. Sections 5.4, 5.5, 6.1, 7.1, 7.2, the indemnification language of 7.3, 7.4, 8.1, 8.2, 8.3, 9.1, 9.2 and 9.11 hereof and any rights of Pegasus or Client that may have accrued as of the termination of any Schedule will survive such termination.
“Confidential Information” means all information furnished by one party to the other in connection with Pegasus’ delivery of the Services that is designated or treated as confidential by the disclosing party and all information concerning the design, functionality and operation of the Pegasus systems used to provide the Services. Confidential Information does not include any information that (a) is already lawfully known by the receiving party when received as a matter of record; (b) is independently developed by the receiving party; (c) is now or hereafter becomes generally available to the public through no fault of the receiving party; (d) is received by the receiving party from a third party legally entitled to make such disclosure; or (e) is disclosed after the receiving party obtains prior written approval from the disclosing party for such disclosure. Neither party will use the other party’s Confidential Information for any purpose other than to fulfill its obligations arising under this Agreement. Each party will use reasonable efforts to keep confidential the other party’s Confidential Information and the terms and pricing contained in this Agreement and will not disclose such information to any person or entity other than its employees, agents, and affiliates who agree to comply with this section or other than as required to fulfill its obligations arising under hereunder. Each party will be responsible for the breach of this section by its employees, agents, and affiliates. A party may disclose the other party’s Confidential Information to the extent required by law, regulation, judicial process or order of a governmental authority, provided that the disclosing party discloses only that Confidential Information necessary to comply with such requirement and that the disclosing party gives the other party prompt notice of such requirement following the disclosing party’s receipt of notice, or determination of the existence, of such requirement. After the termination of this Agreement, each party will promptly return to the other party or destroy all original and duplicate copies of the other party’s Confidential Information furnished to it upon the written request of the other party, provided that Pegasus may retain in its records relating to its performance of the Services Client’s Confidential Information that is incorporated into such records in the normal course of Pegasus’ business. Each party will certify any such destruction to the other party within five business days of such written request. Notwithstanding any provision of this Agreement, Pegasus may use and disclose data derived by Pegasus from its performance of the Services for purposes of reporting and analysis, provided that neither Client nor any Affiliate, nor any customer or guest of Client or any Affiliate, is identifiable from such reporting or analysis. Pegasus represents that it will not disclose any personally identifiable information or personal financial information of any customer or guest of Client or its Affiliates in connection with any such reporting or analysis. Pegasus agrees to indemnify and hold harmless Client and its Affiliates from and against all losses, costs, liability, damages, and expenses (including reasonable legal expenses) incurred or suffered by them arising out of or in connection with Pegasus’ breach of the representation in the preceding sentence.
7.0 INTELLECTUAL PROPERTY RIGHTS; OWNERSHIP OF DATA
7.1 Pegasus Ownership.
Pegasus and its licensors will retain exclusive ownership of all right, title and interest, including without limitation, all Intellectual Property Rights (as defined below), in and to the Services and the systems and software used by Pegasus to provide the Services; the design, functionality, operation and components of the same; all modifications, enhancements and upgrades to the same; and Pegasus’ business methods. No right, title or interest of any kind in the foregoing is granted to Client or any Affiliate pursuant to these General Terms and Conditions.
7.2 Client Ownership.
No right, title or interest of any kind is granted to Pegasus pursuant to these General Terms and Conditions in or to the data or images furnished by Client and its Affiliates to Pegasus during the term of any Schedule for use by Pegasus in providing the Services. Following Client’s payment to Pegasus of all amounts due at the time of termination of the Agreement, Pegasus will deliver to Client, in a format supported by the Pegasus systems used to provide the Services, one or more files containing the data and images previously furnished by Client and its Affiliates to Pegasus that are stored on such systems as of the date of termination.
7.3 Use of Marks.
Client represents that it has the right to grant, and hereby grants, to Pegasus the right to use and display, and store on Pegasus' systems, the trademarks, service marks, trade names, trade dress, logos, names, and pictures (collectively, “Marks”) of Client and each Affiliate (and the Marks of any third party that are used or provided by Client and each of its Affiliates) to the extent necessary to perform Pegasus’ obligations in accordance with this Agreement. Client will indemnify, defend and hold harmless Pegasus and its affiliated entities from and against all losses, claims, liability, costs, damages, fines, and expenses (including all legal costs) incurred or suffered by them that arise out of or in connection with Client’s breach of the representation in the preceding sentence. Pegasus will not obtain any right, title or interest in or to the Marks of Client or any Affiliate pursuant to these General Terms and Conditions. Except as set forth in the first sentence of this section, neither party will use the Marks of the other party without the other party’s prior written approval.
“Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship, including but not limited to copyrights and moral rights; (b) trademark, trade name and trade dress rights and similar rights; (c) trade secret rights; and (d) patents, designs, database rights, algorithms and other industrial property rights; all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated), whether arising by operation of law, contract, license or otherwise; and all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force.
8.0 DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
8.1 Disclaimer of Warranties.
ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SATISFACTORY QUALITY, GOOD AND WORKMANLIKE SERVICE, REASONABLE SKILL AND CARE OR NON-INFRINGEMENT, RELATING TO THE SUBJECT MATTER HEREOF ARE DISCLAIMED BY PEGASUS AND WAIVED BY CLIENT TO THE MAXIMUM EXTENT PERMITTED BY LAW. PEGASUS DOES NOT WARRANT THAT THE PROVISION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
8.2 Limitation of Liability.
NOTHING IN THIS OR THE FOLLOWING SECTION EXCLUDES OR LIMITS THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR FOR ITS FRAUDULENT MISREPRESENTATION. SUBJECT TO THE PRECEDING SENTENCE, PEGASUS, ITS SUBSIDIARIES AND AFFILIATED ENTITIES WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO (a) THE FAILURE OF THE SERVICES TO OPERATE OR FUNCTION DUE TO APPLICATIONS, EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY CLIENT, AN AFFILIATE OR A THIRD PARTY NOT ACTING AS PEGASUS’ AGENT; (b) INTERRUPTIONS OF CLIENT’S OR ANY AFFILIATE’S ACCESS TO THE SERVICES OR LOST OR ALTERED TRANSMISSIONS NOT CAUSED BY THE ACTS OR OMISSIONS OF PEGASUS OR A THIRD PARTY ACTING AS PEGASUS' AGENT; OR (c) DATA PROVIDED OR ENTERED BY CLIENT, ANY AFFILIATE OR ANY THIRD PARTY (OTHER THAN ANY ERROR OR OMISSION IN DATA CAUSED BY PEGASUS’ ENTRY OF THAT DATA). IN NO EVENT WILL PEGASUS’ LIABILITY HEREUNDER EXCEED THE TOTAL FEES AND COSTS PAID BY CLIENT FOR THE SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CAUSE OF ACTION OR OCCURRENCE WHICH IS THE BASIS OF THE CLIENT’S CLAIM AGAINST PEGASUS.
8.3 No Consequential Damages.
Subject to the first sentence of the preceding section, neither party will be liable to the other for any indirect, special, incidental, punitive or consequential damages, including lost profits, income or goodwill, regardless of whether or not such party has been advised of the possibility of such damages, caused by or resulting from any breach of this Agreement or arising out of the performance under any Agreement, and each party hereby expressly waives such damages.
9.1 Mandatory Arbitration.
Any claim or dispute, other than injunctive relief sought by either party, (each, a “Claim”) by either Client or Pegasus against the other, or against the employees, officers, directors, agents or assigns of the other, arising from or relating in any way to Pegasus’ delivery of the Services (whether under statute, in contract, tort, or otherwise and whether for money damages, penalties or declaratory or equitable relief), including Claims regarding the applicability of this arbitration clause, will be resolved by binding arbitration. The parties agree that such arbitration will be governed by the rules of the American Arbitration Association (the “AAA”) if Client’s head or executive office is located in the United States, or the rules of the International Chamber of Commerce if Client’s head or executive office is located outside of the United States, provided that any Claim will first be submitted to a mediator in accordance with such governing rules. The parties agree to give up their right to a jury trial with respect to any Claim and agree that no Claim may be brought as a class action or as a private attorney general. Neither party may act as a class representative or participate as a member of a class of claimants with respect to any Claim. The parties agree that the results of any such arbitration or mediation, as well as information exchanged in connection with any arbitration or mediation, will be Confidential Information for purposes hereunder. These General Terms and Conditions are made pursuant to a transaction involving interstate commerce and are governed by the U.S. Federal Arbitration Act.
9.2 Law and Venue.
(a) If Client’s head or executive office is located in North, Central or South America (the “Americas”) (i) this Agreement shall be governed by and interpreted pursuant to the laws of the State of Delaware, USA, without reference to its conflict of laws principles; (ii) venue for any suit, cause of action, arbitration proceeding or other dispute relating to this Agreement will be in courts located in State of Delaware; and (iii) subject to any provisions of this Agreement mandating arbitration, each party irrevocably submits to the jurisdiction of the state and federal courts located in State of Delaware with respect to the same.
(b) If Client’s head or executive office is located outside the Americas (i) this Agreement shall be governed by and interpreted pursuant to the laws of England without reference to its conflict of laws principles; (ii) subject to any provisions of this Agreement mandating arbitration, each party agrees that the courts of England shall have exclusive jurisdiction to resolve any suit, cause of action or other dispute relating to this Agreement, and each party irrevocably submits to the jurisdiction of the English courts with respect to the same; and (iii) any arbitration or mediation in connection with this Agreement will be conducted in London, England.
9.3 Compliance with Laws.
Each of Client and Pegasus will fully comply with all material laws, regulations and governmental orders applicable to their performance hereunder. Pegasus represents that it has on file with the United States Department of Commerce a certification that Pegasus adheres to the “safe harbor framework” developed by such Department in coordination with the European Commission with respect to the European Commission’s Directive on Data Protection. In no event will Pegasus or any of its affiliates be required to perform hereunder to the extent that Pegasus reasonably concludes that such performance may violate any applicable law, regulation or governmental order (including any trade sanctions or export controls imposed by the government of the United States).
9.4 Status of Parties.
This Agreement does not constitute a partnership, joint venture, or similar arrangement between the parties. Neither party, nor any of their respective directors, officers, employees or agents, is authorized to bind the other party or otherwise act in the name of or on behalf of the other. Nothing herein shall be construed to give any person or entity other than Pegasus and Client any legal or equitable right, remedy or claim in connection with or arising from Pegasus’ performance hereunder. If this Agreement is governed by the laws of England, any person or entity that is not a party hereunder will have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
The Agreement(s) are not assignable by Pegasus or Client without the prior written consent of the other party, and such consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign the Agreement(s) without consent to a party engaged in a merger with, an acquisition of, or the purchase of all or substantially all of the assets of, the assigning party, provided the assignee unconditionally assumes the same in writing. Pegasus may assign the Agreement(s) to any of its subsidiaries or affiliates without Client’s consent. Any assignment in violation of this section is void and unenforceable.
All notices given hereby must be in writing and (a) personally delivered; (b) deposited in the mail, first-class, registered or certified mail, return receipt requested, or similar service with postage prepaid; or (c) sent by overnight courier service (for next business day delivery if within the country of the sender or second business day delivery if outside the country of the sender), shipping prepaid as follows (or to such persons or addresses as any party may request by notice duly given):
If to Pegasus:
If to Client:
Pegasus Solutions Companies
4141 N Scottsdale Rd Suite 200
Scottsdale, AZ 85251 USA
Attn: Contract Notices
Notice shall be sent to Client’s address on file
cc: General Counsel
at the same address
Except as otherwise specified herein, notices will be deemed given and received at the time of delivery or of refusal of delivery.
9.7 Entire Agreement; Controlling Language.
This Agreement constitutes the entire agreement between Pegasus and Client and supersedes and replaces any and all other agreements and representations, verbal or written, with respect thereto. There are no representations, warranties or agreements made or relied upon by either party with respect to the subject matter hereof that are not set forth in this Agreement. This Agreement may not be amended or modified other than by a written agreement executed by Client and Pegasus. In the event of any conflict between these General Terms and Conditions and the terms of any Agreement, these General Terms and Conditions will control. English will be the controlling language with respect to this Agreement. Any translation of this Agreement into another language is for convenience only and no such translation will be binding against the parties hereto.
9.8 Exclusive Agreement.
Except as otherwise provided herein, this is an exclusive arrangement and Client will not contract during the term of each Agreement with another party for the same or similar services as set forth therein.
9.9 Successors and Assigns.
This Agreement is binding upon and inures to the benefit of the legal representatives, successors and duly authorized assigns of each party.
9.10 Execution; Retention.
Each Agreement may be executed in counterparts, each of which when executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. A signature delivered by facsimile or electronic transmission will be effective to bind the executing party. Each Agreement may be retained or stored by either party solely in an electronic format, and any reproduction thereof by reliable means from an electronic format will be deemed an original.
Except as otherwise provided herein, the failure of a party to exercise any of its rights or to enforce any of the provisions of this Agreement on any occasion will not be a waiver of such right or provision, nor affect the right of such party thereafter to enforce such right or provision.