License Agreement

ELECTRONIC FORMS LICENSE AGREEMENT

 

This Electronic Forms License Agreement (“Agreement”) is made between TRAVEL INDUSTRY SOLUTIONS, LLC (“TIS”) and SUBSCRIBER, as named in the Program Materials subscription order placed on the TIS website (each a “Party” and, together, the “Parties”).

 

Subscriber wishes to use Program Materials, and TIS desires to make them available to Subscriber.

 

This Agreement describes the rights and obligations of a single-user Subscriber, unless Subscriber selects a Group License, in which case all rights and obligations apply to Subscriber and each Group User.

 

1.              DEFINITIONS

 

Group License” means a license allowing the use of Program Materials by Subscriber and any Group User.

 

Group User” means a user of Program Materials under Subscriber’s License, as Subscriber discloses to TIS, and TIS approves, in writing.

 

Intellectual Property Rights” means patents, copyrights, trademarks, trade names, trade secrets, brands, logos, know-how, design rights, and any other intellectual property right enforceable in any jurisdiction, whether or not applied for or granted, as existing from time to time.

 

License” means a license allowing the use of Program Materials by Subscriber and, if agreed between the Parties, Group Users.

 

Program Materials” means the forms and other materials developed by TIS and made available to Subscriber and Group Users pursuant to this Agreement through the following website: www.travelindustrysolutions.com (“TIS Website”).

 

Subscriber” means the Party ordering a forms subscription via TIS Website.

 

2.              LICENSE

 

2.1.      TIS hereby grants to Subscriber, and Subscriber hereby accepts from TIS, a non-exclusive, non-assignable, non-transferable license (“License”) to use Program Materials, as described in this Agreement, as amended from time to time.

 

2.2.          Subscriber may elect one of the following:

 

2.2.1.           A License allowing the use of Program Materials for Subscribers own purposes; or

 

2.2.2.           A Group License to use of Program Materials by Subscriber and its affiliated travel agencies, subject to TIS’s prior written consent on an agency-by-agency basis, as well as the terms and rates described at TIS Website.

 

2.3.          Subscriber and Group Users will not share with any third party any password, username, or other login information used to access Program Materials.

 

2.4.          Other than expressly allowed in this Agreement, Subscriber will not, without the prior written consent of TIS:

 

2.4.1.           Modify any Program Materials, in whole or part; or

 

2.4.2.           Reproduce, recreate, copy, or scan Program Materials, in whole or part, into electronic any image, text, or any other format; or

 

2.4.3.           Reverse engineer, decompile, disassemble, imitate, or replicate Program Materials, in whole or part; or

 

2.4.4.           Sell, distribute, transfer, share, or otherwise allow access to Program Materials to any third party.

 

3.              USE OF PROGRAM MATERIALS

 

3.1.          Subscriber may use Program Materials for on-site electronic reproduction only to document transactions with its own clients, to train its own employees, and to prepare and maintain user guides for its own employees.

 

3.2.          Program Materials are designed to be used only in strict accordance with the terms and conditions of this Agreement and policies set out at the TIS Website.

 

3.3.       Subscriber is solely responsible for understanding and adhering to all such terms, conditions, and policies, any breach of which will be deemed a material breach of this Agreement.

 

3.4.       Notwithstanding any other provision in this Agreement, if Program Materials are modified by Subscriber, any Group User, or any third party able to access Program Materials through Subscriber, then all warranties under this Agreement will be void immediately and TIS reserves all rights to act in law or equity to protect and defend its Intellectual Property Rights.

 

3.5.     TIS reserves the right, at its own expense, to audit Subscriber’s use of Program Materials at any time during Subscriber’s regular office hours, upon reasonable prior written notice, including, without limitation, all files and other written records regarding all Subscriber transactions related to this Agreement and the License granted. Such right of audit will continue for one year following any termination of this Agreement.

 

4.              LICENSE FEES

 

4.1.          Fees for Subscriber’s use of Program Materials (“License Fees”) are as described at TIS Website, as amended from time to time.

 

4.2.          A distinct License Fee will apply to each form, package of forms, or other part of the Program Materials, unless otherwise described on the TIS Website.

 

4.3.          Upon Subscriber’s submission of any order of Program Materials, Subscriber will pay License Fees in full. Thereafter, Subscriber will pay License Fees in full on either a monthly or annual basis, in accordance with its election on the TIS Website.

 

4.4.        If TIS does not receive License Fees on the due date, Subscriber’s subscription and warranty under this Agreement will be terminated, and Subscriber will discontinue immediately any use of Program Materials.

 

4.5.          Upon any termination of this Agreement, Subscriber will immediately pay TIS all unpaid License Fees.

 

4.6.          TIS may change and restructure License Fees, in whole or part, at any time in its sole discretion without notice to Subscriber or any other party.

 

4.7.          All Subscriber orders are a binding agreement to purchase Program Material the price stated on the TIS Website, at the time of purchase.

 

4.8.       TIS updates and revises the availability and pricing of Program Materials on a continually revolving basis and it may discontinue any part of Program Materials at any time, subject to reasonable notice to Subscriber.

 

4.9.          If Subscriber cancels its use of any part of Program Materials, or terminates this Agreement, no refunds, prorated or otherwise, of License Fees will apply.

 

4.10.        If TIS provides Subscriber a package price for particular forms, no reduction in the package price will apply if Subscriber subsequently chooses to remove any form from the package.

 

4.11.        If Subscriber removes or cancels 25% or more of the forms in the package, TIS reserves the right to convert package pricing to individual form pricing, which may result in increased overall pricing to Subscriber.

 

4.12.        If TIS applies special pricing based on its relationship with a host, consortium, or travel industry organization for member subscriptions and, for any reason, Subscriber ceases to be a member of that organization, then such special pricing will revert to then-standard TIS pricing.

 

4.13.      Past-due License Fees are subject to additional fees equal to 2.5% of total amounts due per month, or $25.00 per month, whichever is amount is greater. Such additional fees will commence 30 days following the payment due date.

 

4.14.    Notwithstanding the above, if TIS and Subscriber separately agree to an invoicing and payment process, TIS will invoice Subscriber for License Fees in accordance with that agreement in the amount of Subscriber’s website order. Upon TIS’s delivery of Program Materials to Subscriber, or to a third-party vendor (e.g., data processor) on Subscriber’s behalf, Subscriber will pay TIS in accordance with the terms on each invoice and this Agreement, regardless of any delay by any third party. Subscriber is solely responsible for all costs relating to third-party document mapping, programming, updating, and similar costs, without limitation.

 

5.              TERM AND TERMINATION

 

5.1.          This Agreement becomes effective upon Subscriber’s signature or acceptance in writing, electronically, or digitally (“Effective Date”) for an initial term of one year (“Initial Term”).

 

5.2.     After the Initial Term, this Agreement will renew automatically for successive terms, each of one year (each an “Renewal Term”), unless terminated in accordance with the provisions set out below.

 

5.3.          Initial Term and one or more Renewal Terms together constitute the “Term” of this Agreement.

 

5.4.          After the Initial Term, either Party may terminate this Agreement for convenience by providing written notice to the other Party with immediate effect as follows:

 

5.4.1.           By TIS providing written notice to Subscriber at least 5 days prior to a renewal date, effective at the end of the Initial Term or any Extension Term.

 

5.4.2.           By Subscriber providing at least 5 days of written notice to TIS prior to a renewal date, effective at the end of the Initial Term or any Extension Term. For clarity:

 

5.4.2.1.           If the renewal date is June 30, Subscriber must provide notice no later than June 25; and

 

5.4.2.2.           If Subscriber does not provide notice as described above, a Renewal Term will start automatically on the due renewal date and License Fees will be due and payable.

 

5.4.2.3.           No refunds or prorated refunds of License Fees will apply for the 12-month Renewal Term.

 

5.4.3.           If Subscriber terminates for convenience during the order processing, Subscriber will pay then-current TIS setup fees.

 

5.5.          TIS may terminate this Agreement for cause by providing written notice to Subscriber with immediate effect if:

 

5.5.1.           Subscriber knowingly or recklessly commits any material breach in violation of Articles 2, 3, or 4 above; or

 

5.5.2.           Subscriber commits any other breach of this Agreement, and does not remedy the breach within 30 days of written notice of such breach; or

 

5.5.3.           An order is made or a resolution is passed for Subscriber’s dissolution, except for purposes of consolidation, merger, or restructuring; or

 

5.5.4.           Subscriber is the subject of an assignment for the benefit of creditors or a voluntary or involuntary filing under the insolvency or bankruptcy laws of any jurisdiction.

 

5.6.          Subscriber may terminate this Agreement for cause by providing written notice to TIS with immediate effect if:

 

5.6.1.           TIS commits a material breach of this Agreement, and does not remedy the breach within 30 days of written notice of such breach; or

 

5.6.2.           An order is made or a resolution is passed for TIS’s dissolution, except for purposes of consolidation, merger, or restructuring; or

 

5.6.3.           TIS is the subject of an assignment for the benefit of creditors or a voluntary or involuntary filing under the insolvency or bankruptcy laws of any jurisdiction.

 

5.7.          Upon termination of this Agreement:

 

5.7.1.           Subscriber will immediately cease all activity related to and use of Program Materials and Intellectual Property Rights of TIS;

 

5.7.2.           Subscriber will immediately and permanently destroy all paper and digital versions and copies of Program Materials in their entirety;

 

5.7.3.           Each Party will immediately return any property belonging to the other Party;

 

5.7.4.           Each Party’s rights and obligations will cease immediately, except that termination will not affect: (1) a Party’s rights and obligations accrued but unsatisfied at termination; and (2) any provision of this Agreement expressed to survive its termination or which by implication is to survive its termination; and

 

6.              WARRANTIES

 

6.1.          TIS warrants that:

 

6.1.1.           It has the right, power, and authority to enter into this Agreement, to perform its obligations, and to grant Subscriber the rights set out in this Agreement;

 

6.1.2.           It will use reasonable endeavors in accordance with standard industry practice to ensure that the Program Materials do not contain any Virus. “Virus” means any trap door, back door, Trojan horse, time bomb, Easter egg, worm, cancelbot, or other virus or computer programming routine that is intended to detrimentally interfere with, damage, expropriate, or surreptitiously intercept any system, data, or personal information and that is reasonably capable of detection using commercially available virus detection software.

 

6.2.          TIS warranties become effective upon:

 

6.2.1.      The Effective Date of this Agreement; AND

 

6.2.2.      Subscriber’s receipt of the following for each booking involving one or more travelers:

 

§  A valid credit card authorization on behalf of travelers on the same booking; AND

§  Signed Travel Insurance Waivers from all travelers on the same booking; AND

§  Signed Travel Services Agreement or signed Terms and Conditions (“Terms”) if using Terms as a standalone document.

 

6.3.          TIS warranties become void if:

 

6.3.1.      Subscriber alters or modify any Program Materials in any manner; OR

 

6.3.2.      Subscriber uses Program Materials in any manner not expressly intended by the Parties; OR

 

6.3.3.      Subscriber fails to use the latest version of Program Materials, as TIS makes available; OR

 

6.3.4.      Subscriber does not clearly and conspicuously include the following information in the footer of any document Subscriber uses that originates from TIS:

 

Powered by Travel Industry Solutions, LLC © [year] rev[day-month-year]

 

6.4.          If Subscriber chooses to alter any Program Materials, Subscriber agrees to:

 

6.4.1.      Provide to TIS prior written notice; AND

 

6.4.2.      Engage a qualified attorney to review and confirm the enforceability of such alterations.

 

7.              RESERVATION OF RIGHTS

 

7.1.          Notwithstanding any other provision in this Agreement, TIS will be entitled to:

 

7.1.1.           Make any modifications to Program Materials that TIS may choose in its sole discretion, provided that: (1) TIS provides to Subscriber written notice within at least 30 days following material modifications; and (2) such modifications do not materially adversely affect the Services; and

 

7.1.2.           Refuse, suspend, or discontinue the provision of Program Materials to Subscriber or any Group User by providing to Subscriber as much prior notice as is reasonably practicable under the circumstances, if TIS, in its sole discretion, determines that provision of such services will jeopardize TIS’s ability or authority to provide Program Materials in any jurisdiction or would cause TIS to be in violation of any legal or regulatory obligation. In the event of such refusal, suspension, or discontinuation, the Parties will promptly consult with each other in good faith to seek an alternative solution, if any, that may allow the continued provision of Program Materials.

 

7.2.      In order to ensure state law and federal law compliance regarding Subscriber’s use of Program Materials, TIS suggests that Subscriber consult with its attorney in this regard before commencing its use of Program Materials.

 

7.3.          TIS recommends that Subscriber take steps to ensure that Program Materials are consistent with its policies, procedures, and data processing systems.

 

7.4.      TIS is not responsible for, and makes no representation or warranty regarding, the use of Program Materials in accordance with Subscriber’s policies, procedures, or data processing systems.

 

8.              UPDATES

 

8.1.     For Subscribers using the “Annual Forms” part of the Program Materials, TIS will use reasonable best efforts to monitor compliance regulations and amendments to laws and regulations that may impact the enforceability of Program Materials and will revise Program Materials in its discretion. TIS will provide instructions to Subscriber regarding implementation in a timely manner, subject to practical limitations regarding the time of final rule date and the rule-effective date.

 

8.2.          Any changes requested by the Subscriber after Program Materials have been approved and delivered to Subscriber or a third-party processor will be subject to additional costs based upon the scope of the changes. Costs will include, without limitation, typesetting, reproofing, resetting data fields, and resubmitting files to Subscriber or a third-party processor. Prior to making such changes, TIS will provide notification of costs, if any, for Subscriber’s consent. 

 

9.              LEGAL REVIEW

 

9.1.        If Subscriber requests any legal review and approves additional fees, TIS will engage appropriate legal counsel and provide copies of advice upon Subscriber payment of fees.

 

9.2.         TIS will provide to Subscriber an estimate of legal review hours for budgeting purposes. TIS will present an itemized final invoice, which may be higher or lower than the estimate.

 

9.3.          Legal advice is valid as of the date written and remain subject to changes in applicable law, whether based on statutes, regulations, or judicial interpretation. In no event, however, will such advice remain valid beyond two years from the date of issuance.

 

10.            INTELLECTUAL PROPERTY RIGHTS

 

10.1.        All Intellectual Property Rights in Program Materials, including any component and underlying data, are either licensed to or the property of TIS and nothing in this Agreement will convey title or any ownership interest therein to Subscriber, any Group User, or any third party.

 

10.2.        This article will survive termination of this Agreement.

 

11.            LIABILITY AND INDEMNITY

 

11.1.        Neither Party will be liable for any indirect, incidental, consequential, punitive, or special damages, including, without limitation, any damages for lost time, income, revenue, profit, customer goodwill, business interruption, or similar items of any kind (collectively, “Damages”) even if the other Party has been informed in advance of the possibility of Damages.

 

11.2.        The total liability for any cause of action in contract, tort, or otherwise arising from this Agreement will not exceed the License Fees paid.

 

11.3.        TIS’s sole obligations and liabilities are as stated in this Agreement. All other representations—innocent or negligent, express or implied, by statute, law, or otherwise—are excluded to the fullest extent permitted by law.

 

11.4.     Subscriber will defend and indemnify TIS against any liability or claim of Damages incurred as a result of, or in connection with, any Subscriber act or omission regarding this Agreement or Program Materials usage policies as stated on the TIS Website.

 

11.5.        This article will survive termination of this Agreement.

 

12.            CONFIDENTIALITY

 

12.1.     “Confidential Information” means the contents of this Agreement and all information disclosed by a Party (“Disclosing Party”) whether in writing or orally, directly or indirectly to the other Party (“Receiving Party”) before or after the Effective Date, including, without limitation, information relating to the Disclosing Party’s services, operations, customers, prospects, know-how, designs, trade secrets, market opportunities, and/or business affairs.

 

12.2.        During and after termination of this Agreement, the Receiving Party:

 

12.2.1.     may not use Confidential Information for any purpose other than for the performance of its obligations or exercise of its rights under this Agreement;

 

12.2.2.        may not disclose Confidential Information to any third party; and

 

12.2.3.        will use best efforts to prevent the unauthorized use or disclosure of Confidential Information.

 

12.3.        The restrictions imposed by Article 12.2 above will not apply to the disclosure of Confidential Information:

 

12.3.1.        That is now in, or hereafter comes into, the public domain other than by the Receiving Party’s breach of this Agreement;

 

12.3.2.        that is required by law to be disclosed to any authorized person; or

 

12.3.3.        to a court, arbitrator, or administrative tribunal in the course of proceedings to which the Receiving Party is a party where such disclosure is required.

 

12.4.    Where the Receiving Party is required to disclose any Confidential Information pursuant to Article 12.3 above, it will give as much advance notice to the Disclosing Party as it is reasonably and legally able and use reasonable efforts to limit the extent of any such disclosure.

 

12.5.        This article will survive termination of this Agreement for three years following the last disclosure of Confidential Information.

 

13.            GENERAL

 

13.1.        Amendments. This Agreement may be amended only in writing and signed the authorized signatories of both Parties.

 

13.2.    Assignment. Neither Party may assign any right or obligation under this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld or delayed.

 

13.3.    Waiver. No forbearance or delay in enforcing this Agreement will prejudice or restrict any rights. No waiver of any right will operate as a waiver of any subsequent right. No right is exclusive of any other right available, and each right is cumulative.

 

13.4.      Severability. If any part of this Agreement is found unenforceable, that part will be enforced to the fullest extent permitted by law and the remaining provisions will remain fully in force.

 

13.5.        Publicity. Neither Party will release any public announcement relating to the Program Materials without the other Party’s prior written consent. Each Party will reasonably assist the other to secure testimonials regarding use of the Program Materials.

 

13.6.        Logos. TIS may use Subscriber’s name and logo as part of TIS’s marketing portfolio, subject to the confidentiality obligations above.

 

13.7.        Non-Solicitation. During the Term of this Agreement and for one year thereafter, neither Party will directly or indirectly solicit for employment any employee or contractor of the other Party. General solicitations (e.g., job postings) not specifically directed at the other Party’s employees or contractors will not be deemed a breach of this clause, even if such other Party’s employees or contractors respond to such general solicitations.

 

13.8.        Relationship of Parties. This Agreement does not create a relationship of agency, partnership, joint venture, franchise, or employment between the Parties. Neither Party has the authority to bind the other or to incur any obligation on the other Party’s behalf.

 

13.9.        Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties. No third party, including without limitation any Group User, is intended to have and will not have any rights under this Agreement for: (1) injury, loss, or damage to person or property; or (2) economic injury, loss, or damage.

 

13.10.   Force Majeure. If a Party’s failure to perform any obligation under this Agreement, except for the payment of Fees, arises from a cause beyond its reasonable control, such failure will be deemed a force majeure and will not be a breach of this Agreement. Force majeure includes compulsory requisition or order by a governmental authority, war, terrorism, revolution, riots, earthquakes, floods, fires, or other natural or industrial disasters. The Party prevented from performance by any force majeure will: (1) promptly notify the other Party of such cause and the anticipated duration thereof; (2) use commercially reasonable efforts to remove such cause; and (3) resume its performance immediately upon removal of such cause.

 

13.11.     Equitable Relief. Either Party may seek injunctive or other equitable relief to remedy any actual or threatened dispute.

 

13.12.     Notices. All notices under this Agreement will be in writing and deemed given when sent prepaid by: (1) commercial courier with written verification of receipt; or (2) registered or certified post. All notices will be sent to the receiving Party’s email, street address, other address, as provided in writing. Each Party will ensure its valid email address is made available to the other Party at all times.

 

13.13.     Interpretation. The headings used in this Agreement are included for convenience only and will not be used to interpret this Agreement. In the event of any conflict between the body of this Agreement and any appendix, the former will prevail.

 

13.14.     Counterparts. This Agreement and any counterpart may be signed or accepted in writing, electronically, or digitally.

 

13.15.     Dispute Resolution. Any dispute arising in connection with this Agreement will be settled informally between the Parties and then, if necessary, exclusively by arbitration before a single arbitrator in Orange County, Florida, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Each Party irrevocably consents to personal jurisdiction and ex parte action should the other Party refuse to participate in such proceedings. The arbitrator’s award will be final and binding on each Party and judgment may be enforced in any court having jurisdiction. In the event of any arbitration, the arbitrator will award costs and reasonable attorney’s fees to the prevailing Party. This provision will survive any termination of this Agreement.

 

13.16.     Governing Law. This Agreement is governed by the laws of the State of Florida without regard to conflict-of-laws principles of any jurisdiction.

 

13.17.     Entire Agreement. This Agreement is the entire agreement between the Parties regarding Program Materials and supersedes all prior agreements between them, whether written or oral, regarding the same.

 

13.18.     Further Assurances. Each Party provides further assurances and will execute and deliver such additional documents and perform such additional acts as necessary and appropriate to effect this Agreement. The Parties will address together in good faith any unforeseen issues that arise in the execution of this Agreement, with a view to mitigating any material adverse impact on either Party.