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Master Service Agreement – Dec. 20, 2019
UPDATED DEC. 20, 2019 | Previous Versions | Current Version
This Master Services Agreement (“MSA” or “Agreement”) sets forth the terms and conditions by which Company (as defined below) will provide the Services (as defined below) to the contracting party (“Customer”) identified under section 1 of the applicable Order Form(s). Company and Customer may also be referred to in this MSA individually as a “Party” and collectively as the “Parties.”
BY ACCESSING AND USING THE SERVICES IN ANY WAY, THE CUSTOMER AGREES TO BE BOUND BY THIS MSA, INCLUDING THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY PROVISIONS BELOW. THEREFORE, IF CUSTOMER DOES NOT WISH TO BE BOUND TO THESE TERMS, CUSTOMER IS ADVISED NOT USE THE SERVICES. THIS MSA IS A LEGALLY BINDING DOCUMENT BETWEEN CUSTOMER AND THE COMPANY. IF CUSTOMER IS ENTERING INTO THIS MSA ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY AND/OR AUTHORIZATION TO BIND SUCH ENTITY.
1. DEFINITIONS AND INTERPRETATION. All capitalized terms used in this MSA but not defined herein have the meanings set forth elsewhere in this MSA. In addition, the following definitions apply for the purposes of this MSA:
1.1 Business Day means a day that is not a Saturday, Sunday or public holiday in the United States.
1.2 Company means Travel Tripper LLC d/b/a Pegasus, a Delaware limited liability company, along with its parents, subsidiaries and affiliates, including but not limited to: (i) Travel Tripper Limited; (ii) Travel Tripper India Pvt. Ltd; (iii) Pegasus Solutions Japan; and (iv) Pegasus Solutions GmbH.
1.3 Company Software means any software or system supplied by Company in connection with the Services.
1.4 Confidential Information of a party means any information that one party (“Disclosing Party”) discloses to the other party (“Receiving Party”) that is marked as confidential or which by its nature the Receiving Party knows or ought to know is confidential (regardless of the form of the information and when it was acquired) and includes (without limitation) contracts and contract terms, pricing and fees, trade secrets, technical knowledge, computer source and object code, concepts, design details and specifications, plans, precedents, processes, methods, techniques, know-how, innovations, ideas, procedures, research data, financial information, databases, personnel data, computer software and programs, partner and supplier information, correspondence and letters and papers of every description including all copies or extracts of the same relating to the affairs or business of the party.
1.5 Customer Agents means any person authorized by Customer to act on its behalf, including (without limitation) Customers: (i) officers; (ii) employees; (iii) contractors; (iv) affiliates; and (v) representatives.
1.6 Documentation means training materials, reports, charts, diagrams, instruction manuals, etc.
1.7 Fee(s) means the fees payable by the Customer to the Company for the Services provided under this Agreement.
1.8 Intellectual Property Rights means any and all now known or hereafter known tangible and intangible (i) rights associated with works of authorship, including but not limited to copyrights and moral rights; (ii) trademark, trade name and trade dress rights and similar rights; (iii) trade secret rights; and (iv) patents, designs, database rights, algorithms and other industrial property rights; (v) 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 (vi) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force.
1.9 Service(s) means the supply of any Computer Software or service, which may include (without limitation) any of the following, each as more particularly described under any applicable Order Form (as defined below):
a. Pegasus Reservations Services;
b. Pegasus E-Commerce Services;
c. Pegasus Global Sales Services;
d. Pegasus Intelligence Services;
e. training and Documentation
f. installation, integration, maintenance, assistance or backup services;
g. help desk systems and support;
h. other connectivity applications and interfaces;
i. conversion or adaptation of data and information from Customer systems; or
j. development services as specified under any accompanying Statement of Work.
2. ORDER FORMS. The Company will provide the Services to the Customer as set forth and as agreed-to by Customer in one or more fully executed order form(s) and any schedules, addendums, or amendments attached thereto (collectively, the “Order Form(s)”). The Parties acknowledge and agree that the Order Forms and the terms therein shall be expressly incorporated into this MSA by this reference and any reference to the term “Agreement” shall refer to both the terms herein and the Order Forms, as applicable.
3. LICENSE GRANT. The Company grants to Customer a limited, non-exclusive, fully revocable, non-transferable, non-sublicensable license (“License”) to use the Services in accordance with the terms of this MSA and any applicable Order Form(s). Customer is permitted to use the Services and make unlimited copies of the Documentation, in whole or part, to be used solely by Customer Agents in using the Services or for training purposes. Customer is not permitted to make any copies of Company Software. All copies of Documentation made by Customer must include the Company’s copyright, trademark, and/or proprietary notices, and mark all copies as “Confidential.”
4. INVOICING AND PAYMENT. Customer shall pay for the Services at the Fees set forth in the applicable Order Form.
4.1 Payment Terms. All Fees are due to Company within twenty (20) days of the invoice date and payments shall be made in U.S. currency, unless otherwise specified in the applicable Order Form. All payments shall be made by check, wire transfer, or credit card (subject to a 3.5% convenience fee). The Company will submit itemized and detailed invoices for Fees, Taxes (if applicable) and expenses to Customer on a regular basis and will provide appropriate supporting documentation reasonably requested by Customer. Except for invoices which are subject to a good faith dispute, Customer’s failure to pay, in whole or part, any invoice within five (5) calendar days of the due date, the Company will send Customer a written demand for payment. If Customer fails to pay the late invoice within five (5) calendar days after actual receipt of the written demand, then such unpaid amount shall bear annual interest at a rate of fifteen percent (15%) per annum, or the maximum rate allowed by law, whichever is lower, calculated from the date payment was first due to the date of actual payment. If Customer has a good faith dispute with any invoice, Customer must provide written notification to the Company within ten (10) calendar days of receipt of the invoice detailing the amount disputed, the nature of the dispute and the relief requested. Customer shall be obligated to pay ninety-five percent (95%) of the amount billed at the time of the dispute. Once the dispute over the invoice has been resolved, either: (i) Customer shall pay the original or corrected amount due within five (5) calendar days of such resolution; or (ii) the Company shall refund any overpayment or apply such amount as a credit to the next invoice.
4.2 Payment Obligation. Customer agrees that its payment obligation under this Agreement shall continue without interruption even if: (i) for any reason, Customer ceases to own, lease, manage, or otherwise control the operations of the property that is subject to this Agreement; (ii) the Customer’s franchise changes or imposes conditions interfering with the ability of Company to perform the Services; or (iii) any similar event occurs preventing the Company from performing the Services.
4.3 Taxes. Customer will pay all sales, use, service, excise, value added and similar taxes, duties and fees levied by any taxing authority (“Taxes”) in connection with the Company’s performance of this Agreement, whether foreign, national, state, or local. In no event shall Customer be liable for taxes of the Company in respect of its net income, payroll, or any other business activity of the Company unrelated to the provision of Services to Customer hereunder. Except as expressly stated otherwise in the Agreement, all Fees exclude any applicable Taxes.
5. TERMINATION.
5.1 Termination Upon Breach. Either Party may terminate this Agreement if the other Party breaches or is in default of any material obligation, which default is incapable of cure or which, being capable of cure, has not been cured within fifteen (15) Business Days after receipt of written notice of such default from the non-defaulting Party.
5.2 Termination Upon Change in Financial Position. Company may terminate this Agreement by giving written notice to the Customer if the Customer 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 a substantial part of its property subjected to any levy or seizure for or by any third party.
5.3 Post-Termination. Upon termination, Customer shall pay all outstanding amounts due and payable to Company. Company will invoice Customer for all outstanding Fees immediately due upon termination. In the event that certain transaction Fees are due upon arrival or departure date of the reservation (e.g. GDS Fees), the Company will continue to invoice Customer on the last day of the month for each post-termination reservation accordingly. Customer shall return all Confidential Information received and all copies of the Documentation to Company immediately following termination. All other obligations of Company and Customer that were incurred prior to the cancellation, termination, or expiration of the Agreement shall survive such cancellation, termination, or expiration.
6. CONFIDENTIALITY AND DATA USE.
6.1 Confidentiality. Each Receiving Party hereto shall not use the Disclosing Party’s Confidential Information for any purpose other than to fulfill its obligations arising under this Agreement or as otherwise set forth herein. The Parties agree that all information concerning the design, functionality, and operation of the Services are proprietary and the Confidential Information of the Company. The Parties agree that all Customer transaction data generated by operation of the Services is the Confidential Information of the Customer.
6.2 Non-Disclosure. Each Receiving Party hereto shall use its best efforts to keep confidential the Disclosing Party’s Confidential Information and shall not disclose such Confidential Information to any third party, other than its employees, agents, and affiliates who agree to comply with this section 6. Customer shall be responsible for the breach of this section 6 by Customer Agents. The confidentiality provisions set forth herein shall survive termination of this Agreement.
6.3 Disclosure Required. A Party may disclose Confidential Information if required to do so by order of a court of competent jurisdiction after first giving notice to Disclosing Party and after taking all practicable steps to cooperate with Disclosing Party to prevent the disclosure to the maximum extent permitted by law.
6.4 Public Domain. Confidential Information does not include any information that (i) is already lawfully known by the Receiving Party when received as a matter of record; (ii) is now or hereafter becomes generally available to the public through no fault of the receiving party; (iii) is received by the Receiving Party from a third party legally entitled to make such disclosure; or (iv) is disclosed after the Receiving Party obtains prior written approval from the Disclosing Party for such disclosure.
6.5 Remedies. The Parties expressly agree that due to the unique nature of Confidential Information, monetary damages may be inadequate to compensate the Disclosing Party for any breach by the Receiving Party of the covenants and agreements contained in this section 6. Accordingly, the Parties agree that any such violation or threatened violation may cause irreparable injury to the Disclosing Party and that, in addition to any other remedies that may be available, in law, in equity, or otherwise, the Disclosing Party shall be entitled to obtain injunctive relief against the threatened breach or the continuation of any such breach of this section by the Receiving Party, without the necessity of proving actual damage.
6.6 Data Use. Notwithstanding any provision of this Agreement, Customer acknowledges and agrees that Company may store, aggregate, modify, transfer, use, and disclose data derived by Company from its performance of the Services for any purpose allowed by law, including without limitation, reporting, statistical analysis, product development, and research (collectively, “Data Use”). Company represents that it will not disclose any personally identifiable information or personal financial information of the Customer or any guest of the Customer in connection with the Data Use and that the use of such data will otherwise not be in violation of any law or regulation. Customer acknowledges and agrees that Customer will assert no ownership of intellectual property right or other rights to prevent the Data Use.
7. INTELLECTUAL PROPERTY RIGHTS.
7.1 Company Ownership of Intellectual Property Rights. The Company shall retain exclusive ownership of all right, title and interest, including without limitation, all Intellectual Property Rights in and to the Services; the design, functionality, operation and components of the same; all modifications, enhancements and upgrades to the same; and the Company’s business methods. Except for the License granted herein, no right, title or interest of any kind in the foregoing is granted to Customer pursuant to this Agreement. Customer will not and shall not acquire any rights in the underlying Services in which the Company possesses all rights, title, and interests.
7.2 Customer Restrictions. Customer and Customer Agents are expressly restricted from doing the following: (i) making derivative works based on the Services; (ii) modifying, copying, duplicating, reproducing, reverse engineering, decompiling, or reverse assembling all or any portion of the Services for any reason; (iii) renting, leasing, selling, reselling, distributing, or otherwise transferring the Services; (iii) sharing or permitting any third parties to access or utilize the Services without the express written consent of the Company; (iv) sublicensing the Services; or (v) using the Services as a timesharing or service bureau or other similar type of service.
7.3 Brands and Marks. Each party hereby grants to the other party a limited, non-exclusive, non-sublicensable, non-transferable, revocable license throughout the term of this Agreement to use its trademarks solely for the purpose of providing and receiving Services, and solely for each party’s internal business purposes; provided, however, that Customer is only permitted to use the Company’s trademarks with the Company’s prior written consent in each instance. Customer hereby grants the Company the right to reproduce, display and otherwise use the trademark, logo and/or trade name of Customer in connection with advertisement and promotion of the Company’s Service offerings. The Company will have the right to make reasonable use of Customer materials which are incorporated into any of the Services or which make use of the same, including but not limited to, the use of still photographs of and/or screen captures, and to make demonstrations of executable versions of any Company Service, including any that showcase Customer properties and facilities, to the extent that such use does not reveal the confidential information of Customer.
8. NETWORK SECURITY.
8.1 Confidentiality of Access Credentials. Customer and Customer Agents (collectively, the “End User”) are responsible for maintaining the confidentiality of all passwords and usernames (“Access Credentials”) issued to access Company Software. The Company shall maintain the confidentiality of the Access Credentials and take reasonable steps to ensure that the Access Credentials are not accessed or made available to unauthorized persons. Except as a result of the Company’s breach of the foregoing: (i) the Customer shall be fully responsible for all activities that occur while accessing Company Software using the Access Credentials; and (ii) Company shall not be liable for any loss incurred as a result of someone other than the End User gaining access to Company Software through the use of the End User’s Access Credentials. Additionally, Company shall not be liable or responsible for any unauthorized access or misuse of Company Software by the End Users. Upon Company’s reasonable request, Customer shall identify the individuals it has given access to Company Software and notify the Company of any changes to such group. Customer agrees to implement and maintain policies and procedures to protect the security of Company Software. The Company shall have the right, in its sole and absolute discretion, to deny any individual’s access to Company Software due to legitimate security concerns.
8.2 Data Processing Addendum. In consideration of the mutual obligations set out herein, the Parties expressly acknowledge and agree that the terms of the Data Processing Addendum (“DPA”) appearing at www.pegs.com/dpa are hereby incorporated into this Agreement by this reference, to the extent necessary to comply with domestic and/or foreign data protection regulations as may be applicable to each Party.
8.3 PCI DSS Compliance. Company warrants that it is Payment Card Industry Data Security Standard (“PCI-DSS”) compliant and must remain compliant for the duration of this Agreement. Company will store, process, and transmit all cardholder data in accordance with the PCI DSS.
9. COOPERATION; INFRASTRUCTURE. Customer agrees: (i) to reasonably cooperate with the Company with respect to the implementation, maintenance, performance, and modification or enhancement of the Services; and (ii) at Customer’s sole expense, to procure, operate, maintain and manage such hardware, software, equipment, and communication services and lines as may be necessary for Customer to access and receive the Services.
10. REPRESENTATIONS & LIMITED WARRANTIES. Each party represents, warrants, and covenants that: (i) it is duly organized and validly existing under the laws of its state or location of formation or incorporation; (ii) the execution of this Agreement and all applicable Order Forms has been duly authorized by all necessary company action; (iii) it has obtained and holds all licenses, permits and approvals of all governmental authorities necessary to perform its obligations hereunder; (iv) it will comply with all applicable laws, rules, codes and regulations; (v) that it has all power, right and authority to enter into this Agreement, to grant to the other party the rights granted herein and to perform all of its obligations hereunder; and (vi) the execution, delivery and performance of its obligations hereunder do not conflict with and will not result in a breach or default by the other party of any of its obligations under any other contract or agreement.
11. DISCLAIMER OF WARRANTIES; INDEMNIFICATION; LIMITATIONS OF LIABILITY.
11.1 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 THE COMPANY AND EXPRESSLY WAIVED BY CUSTOMER TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE COMPANY DOES NOT WARRANT THAT THE PROVISION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
11.2 Indemnification. Customer agrees to indemnify, defend and hold harmless Company, its affiliates, and each of their directors, officers, employees, agents and members, from and against any and all third party losses, claims, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) (collectively, “Claims”) related to or arising from: (i) any failure by Customer or a hotel to honor any confirmed reservation made through any Company Service in accordance with this Agreement; (ii) any breach of any representations, warranties or agreements made by it under this Agreement; (iii) its acts or omissions hereunder, including, without limitation, any unauthorized use by it or any of its subcontractors of any portion of the Company Services; (iv) Company’s use of information/data provided by Customer; (v) any events, occurrences or accidents related directly or indirectly to the use or occupancy of a hotel or its related services, including, without limitation, claims for personal injury (including death) and property damage; (vi) actual or alleged infringement by Customer’s information it provides to the Company, including, but not limited to, its confidential information, its brands, trademarks, logos or trade names. The foregoing indemnity shall not apply to Claims that arise solely from the gross negligence or willful misconduct of the Company.
11.3 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, STATUTORY, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES RENDERED BY THE COMPANY TO CUSTOMER INCLUDING (WITHOUT LIMITATION) DAMAGES FOR: (I) LOSS OF REVENUE, PROFITS, INCOME, OR GOODWILL; (II) ANY LOSSES RESULTING FROM INACCURATE DATA, UNTIMELY DATA, SYSTEM DELAYS, OR SERVICE INTERRUPTIONS INCLUDING FOR THIRD PARTY DOWNTIME; OR (III) ANY LOSS OF DATA, USE, OR OTHER INTANGIBLE LOSSES ARISING UNDER OR RELATING TO THIS AGREEMENT. NOTWITHSTANDING ANY OTHER TERM HEREIN, COMPANY’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER FOR ANY CAUSE OF ACTION ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY THE CUSTOMER UNDER THE TERMS OF THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. THE COMPANY ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY CUSTOMER OR THIRD PARTY EQUIPMENT, SOFTWARE OR DATA RESULTING FROM ANY CAUSE. THE COMPANY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM CUSTOMER’S WEBSITE, BOOKING ENGINE, AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED BY OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTION OR INACTION OF THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S CONNECTION TO THE INTERNET OR PORTIONS THEREOF. AS SUCH, THE COMPANY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS AND MAKES NO WARRANTIES WITH RESPECT TO SUCH DATA FLOW.
12. MISCELLANEOUS PROVISIONS.
12.1 Third Party Services. The Company retains the right to subcontract any of the Services in this Agreement to a third party. As the contracting party with Customer, the Company will remain liable for all terms of service set forth in this Agreement, whether the Service is fulfilled by the Company’s own employees, contractors, or a third party entity. The Company reserves the right to direct Customers to third parties for support of those parties’ services.
12.2 Force Majeure. Neither party shall be responsible for delays or failures in performance resulting from acts beyond their control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of terrorism or war, fire, communication line failures, power failures, earthquakes, or other natural disasters (collectively, “Force Majeure Events”). Notwithstanding the foregoing, Customer’s obligation to make payments hereunder shall not be affected by any Force Majeure Events and Customer shall make any payments due and payable to the Company during such Force Majeure Events. Except for the foregoing payment obligation, should any failures to perform last for more than thirty (30) calendar days, either Party may terminate this Agreement by providing written notice to the other.
12.3 Entire Agreement. This MSA as updated from time to time and all Order Forms executed by the parties in accordance with the terms contained herein constitute the entire agreement between the Parties and supersedes and replaces all other prior agreements and representations, or discussions, whether oral or written.
12.4 Notices. Any notices or other communications between the parties shall be sent to the addresses provided by the respective party on the applicable Order Form by (i) first-class, registered, or certified mail, return receipt requested, or similar service with postage prepaid; or (ii) 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) return receipt requested. Such notices shall be deemed given and received at the time of delivery or refusal of delivery.
12.5 Severability. If any provision of this Agreement is held to be invalid, it shall be deemed severed from this Agreement and such invalidity shall not affect the other provisions of this Agreement.
12.6 Waiver. Except as otherwise provided herein, the delay or 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. All waivers must be in writing and signed by the party waiving the right. Any waiver by either party shall be a specific, limited waiver and shall not constitute a continuing waiver.
12.7 Governing Law. This Agreement shall for all purposes be governed, construed, and enforced by the laws of the State of New York, USA. Each party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in New York County, New York.
12.8 Assignment. The Company may freely assign this Agreement (including a transfer in the event of a sale of all or substantially all of the assets corresponding to the business to which this Agreement pertains, a sale of all or substantially all of its voting securities, a merger or other corporate reorganization) without the consent of the Customer, provided that the Company will provide written notice of such assignment. Customer may not assign this Agreement without the prior written consent of the Company, by operation of law or otherwise, without the Company’s prior written consent, which shall not be unreasonably withheld. Any assignment in violation of this section is void and unenforceable.
12.9 Relationship of the 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 other act on behalf of the other. Nothing herein shall be construed to give any person or entity other than the Company and Customer any legal or equitable right, remedy, or claim in connection with or arising from the Company’s performance hereunder.
12.10 E-Signature and Counterparts. This Agreement may be executed in multiple counterparts, which may be shared electronically (including via email), each of which will be deemed an original, but all of which together will constitute one and the same instrument. Electronic signatures shall be considered originals hereunder, and the parties agree that use of electronic signature software (e.g., DocuSign, Adobe Sign) to execute this Agreement or any order form hereunder is sufficient evidence of intent to be bound to the terms hereof and thereof to constitute a binding signature.
