MASTER SUBSCRIPTION AGREEMENT
Updated on 01 September, 2014. Section 9. Fees, Terms, Taxes & Billing Contact as relates to addition of payment means, e.g. GoCardless. No other section modified.
This Master Subscription Agreement (“Agreement”) is made and entered into as of the first non-evaluation use of In1 Services or Order Form Effective Date of the first Order Form or License Agreement executed between In1 Solutions Ltd., (“In1”) and the Client or Customer hereinafter (“Customer”), described in such Order Form.
CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS AGREEMENT. BY SIGNING AN ORDER FORM OR BY ACCESSING OR USING THE SERVICES OF IN1, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND ACCEPTS THIS AGREEMENT. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, IN1’s OFFER OR ACCEPTANCE (AS APPLICABLE) TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO THE SERVICES IS EXPRESSLY LIMITED TO THIS AGREEMENT AND CONDITIONED ON CUSTOMER’S ASSENT HERETO.
The terms and conditions of this Agreement shall govern the Services to be provided by In1 under any Order Form submitted by Customer and accepted by In1, as though the provisions of this Agreement were set forth in their entirety within such Order Form, and so that each Order Form and this Agreement shall be considered one, fully integrated document and agreement. The term “In1” shall include any third parties which are providing third party Services identified in an applicable Order Form. A Definitions section is included at the end of this Agreement. Customer agrees that purchases here-under are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by In1 regarding future functionality or features.
1. License Grant, Limitations & Restrictions
Subject to the terms and conditions of this Agreement, In1 hereby grants Customer a non-exclusive, non-transferable, assignable per the Assignment Section, worldwide limited license to use the Services provided here-under solely for Customer’s own business purposes and only for the specific time periods as set forth in each fully executed Order Form, except as otherwise provided in an applicable Order Form. In addition, and to the extent that an applicable Order Form includes any third party provider products, such may require Customer’s agreement to additional or different license terms as described in the applicable Order Form. All rights not expressly granted to Customer are reserved by In1 and its licensors. In1 reserves the right to make changes, modifications and enhancements to the Services from time to time.
2. Limitations on Use
Customer may not release to any third party the results of any evaluation of the Services performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other bench marking or competitive purposes without the prior written approval of In1. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or the Content in any way; (ii) modify or make derivative works based upon the Services or the Content; (iii) reverse engineer the Services; or (iv) access the Services in order to build a competitive product or service. For the avoidance of doubt, and subject to the license grant/limitations/restrictions in Section 1 above, nothing in this Section 2 shall be deemed to prohibit Customer from allowing Customer’s customers from accessing the functionality of the Services, via interfaces, portal applications and the like, for its internal business purposes. Additionally, Customer shall not use the Services to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortuous material, including material harmful to children or be in violation of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (v) attempt to gain unauthorized access to the Services or its related systems or networks.
3. Order Process
Customer shall order the Services by completing and signing an Order Form or License Agreement hereinafter “Order Form”. In1 shall accept or reject such Order Form within ten (10) days. Each accepted, fully executed Order Form shall be deemed to become incorporated herein by reference as if attached and made an integral part of this Agreement. Should Customer’s business practices require a purchase order number be issued prior to payment of any In1 invoices issued pursuant to an Order Form, then such purchase order number must be provided to In1 prior to the Effective Date of such Order Form. Customer’s execution and return of applicable Order Form to In1 without designating a purchase order number shall be deemed an acknowledgement that no purchase order number is required for payment of invoices here-under. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that Customer may provide to In1 or use in connection with the procurement of Services (or any software) from In1 will have no effect on the rights, duties or obligations of the parties here-under, regardless of any failure of In1 to object to such terms, provisions or conditions.
4. Customer’s Responsibilities
Customer is responsible for all activity occurring under Customer’s User accounts and shall comply with all applicable laws and regulations in connection with Customer’s use of the Services, including but not limited to those related to data privacy, international communications, the transmission of technical or personal data and export control laws and regulations. Customer shall: (i) notify In1 immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Services; (ii) report to In1 immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of Content, In1 Platform, Services or Deliverable that becomes known or suspected by Customer or Customer’s Users; and (iii) not impersonate another In1 user or provide false identity information to gain access to or use the Services. Customer shall indemnify and hold In1, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including lawyer/attorneys’ fees and costs) to the extent arising out of or in connection with a claim alleging that use of the Customer Data infringes a copyright, patent, or a trademark of, or has caused harm to the rights of, a third party provided in any such case that In1 (a) promptly gives notice of the claim to Customer; (b) gives Customer sole control of the defence and settlement of the claim (provided that Customer may not settle such claim unless such settlement unconditionally releases In1 of all liability and does not adversely affect In1’s business or Service); (c) provides to Customer all available information and reasonable assistance; and (d) has not compromised or settled such third-party claim.
5. Account Information & Data
In1 does not own any Customer Data. Customer, not In1, shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Customer Data, and In1 shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of Customer Data not caused by In1. In1’s use of Customer Data shall be limited to the purpose of providing the Services to the Customer and for In1 to meet its obligations here-under. As part of the Services and during the Term, In1 makes available to Customer the ability to export a file of the Customer Data. Customer agrees and acknowledges that (i) In1 is not obligated to retain any Customer Data for longer than 30 days after termination, and (ii) In1 has no obligation to retain Customer Data, and may delete Customer Data, if Customer has materially breached this Agreement, including but not limited to failure to pay outstanding Fees or has ceased the use of In1 technologies prior to the end of the agreed term. Upon termination for cause resulting from an uncured breach, Customer’s right to access or use Customer Data immediately ceases, and In1 shall have no obligation to maintain or forward any Customer Data.
6. Professional Services
If professional services (such as implementation, training, consulting, etc.) are included in any Order Form (“Professional Services”), in addition to the provisions in any mutually agreed upon Statement of Work (“SOW”) the following provisions shall apply. In1 shall retain all ownership rights to any and all Deliverables excluding, any pre-existing technology or materials supplied by Customer for incorporation into such Deliverable. In1 grants Customer a royalty-free, non-exclusive, non-transferable, non-assignable worldwide license to use any Deliverable, to the extent necessary to permit Customer to use the Deliverable in connection with the Services during the Term. Customer acknowledges that nothing in this Agreement shall restrict or limit In1 from performing similar services for any third party.
7. Intellectual Property Ownership
In1 alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the In1 Platform, the Content, the Services and any Deliverables, including to any and all enhancements, enhancement requests, suggestions, modifications, extensions and/or derivative works thereof. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, to any Deliverable, the In1 Platform or the Intellectual Property Rights owned by In1. The In1 name, the In1 logo, the In1 trademark, In1 related URLs, and the product names associated with the Services are trademarks of In1 or third parties, and no right or license is granted to use them.
8. Customer’s Third Party Interactions
During Customer’s use of the Services, Customer may enter into correspondence with, purchase goods and/or services from, offer goods and/or services to, or participate in promotions of third parties showing their goods and/or services through the Services. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between Customer and the applicable third-party. In1 and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, sale or promotion between Customer and any such third-party. In1 does not endorse any sites on the Internet that may be linked through the Services and to the extent any links are provided by In1, these are provided to Customer only as a matter of convenience, and in no event shall In1 or its licensors be responsible for any content, products, or other materials on or available from such sites.
9. Fees, Terms, Taxes & Billing Contact
Customer shall pay all fees or charges as specified on each executed Order Form and/or SOW (“Fees”). All payment obligations are non-cancellable and all amounts paid are non-refundable. In1 may at its discretion charge or partially charge and collect in advance for Development and Implementation Fees as defined on each Order Form. Unless otherwise set forth in the applicable Order Form, payment terms are net thirty (30) days from the date of In1’s invoice, without offsets or deductions of any kind, and payment is due in major readily traded and exchanged currencies as specified, such as EUR, USD, ZAR, NZD or GBP as applicable by location.
All invoices will be made available electronically via the In1 Management Console (IMC) and/or Voucher Management Console (VMC), hereinafter (“IMC”) and/or via email to the designated contact located on the Contacts Sheet in accordance with the selected frequency terms on the Order Form. The preferred method is via the IMC but where an Email copy is requested / required, a generic email address specific to the Accounts Payable department, rather than a specific person’s address is recommended to ensure receipt of invoice. In1 only sends email invoices on request and as a courtesy and is not responsible for “undeliverable” or returned emails.
If payment, under an applicable Order Form, is made via credit card then such payment is chargeable upon invoice date. In the event Customer fails to make payments per payment terms as set forth in this Agreement or in any applicable Order Form, and legal enforcement by In1 is deemed necessary, Customer agrees to pay all reasonable legal fees and costs incurred by In1.
In1 shall retain the right to modify booking deposit terms and collection processes associated with the In1 Online Booking or Vouchers Engines to garner payment from OBE activity to protect the financial interest of In1. Such right to modify shall be invoked at In1’s sole discretion but only when payment terms have been breached by 15 calendar days on a first breach and by 5 calendar days on subsequent occurrences.
In1’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only those taxes based solely on In1’s income. If In1 has the legal obligation to pay or collect taxes for which the Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides In1 with a valid tax exemption certificate authorized by the appropriate taxing authority within the applicable jurisdiction.
For the avoidance of doubt, where In1 is rewarded through the application of Commission on the provision of products or services to an end user, client or guest, such Commission is charged based on a percentage of the entire value, not revenue collected, charged, billed or accrued, of the transaction without offset for any discount, promotion, Customer costs, 3rd party revenue share, 3rd party services, levies or taxes contained therein.
If Customer believes Customer’s bill is incorrect, Customer must contact In1 in writing within sixty (60) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
Customer agrees to provide In1 with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator. Customer agrees to update this information within thirty (30) days of any change to it. If the contact information Customer has provided is false or fraudulent, In1 reserves the right to terminate Customer’s access to the Services in addition to any other legal remedies.
Where Customer uses the In1 Credit Card Payment Gateway (In1 PG) and deposits are taken and accrued on behalf of the Customer by In1 such deposits shall be offset against any outstanding invoice and represented in the Statement. Note that the use of the In1 Payment Gateway results in the transfer of Credit Card Merchant Fees from the Customer to In1. In1 recovers these fees based on a sliding scale of charges, in the form of increased commission and applied to the Customer Invoice. The use of the In1 PG is allowed for a intermediate period, while the Customer puts in place their own PG solution. Such PG related increased commission applies on a transaction by transaction basis and only to those transactions where a deposit is applied on behalf of the Customer. In practice this means the Customer in general can apply a zero deposit on standard bookings but offer options for pre-paid bookings, add on services, vouchers, “Pay & Save” or upfront booking payments ranging from 1 to 100% of the value of the transaction. In1 PG and Payment Gateway Services are PCI/DSS compliant.
During the period of use of the In1 PG, specifically as it applies to product or voucher sales, if at the sole discretion of In1 it is deemed that significant funds arise to the credit of the Merchant/Customer then In1 reserves the exclusive right to pay out such funds based on the recorded delivery of product or services to the purchaser or the encashment / redemption of the corresponding voucher(s) by the purchaser. It must be appreciated by the Merchant/Customer that when the In1 PG is used, In1 holds the financial responsibility for any Payment Card claim, charge-back or recovery of funds by the Client or Credit Card provider regardless of cause or reason. In1 must protect itself again such a potential financial liability, through the retention of appropriate Customer funds and their timed release in compliance with its fiduciary duty.
In1 assists all Customers (charges may result) to move to the use of their Merchant ID and own Payment Gateway, PG, which is expected to occur no later than 30 days of first commission-able transaction, “Go Live”. The use by the Customer of their own designated PG results in the associated transfer of financial responsibility to the Customer but with with the benefit of direct receipt of sales funds by the Customer to their nominated account. In1 supports multiple payment gateway suppliers globally and, for example, supports, Stripe.Com which may be used by Customer and set in production, normally within a day. Where the use of the In1 PG by the Customer extends beyond the initial 30 day period post Go Live, In1 retains not only the right to control pay out of any funds collected but to increase the commission charged specifically relating to the use of the In1 PG.
In1 reserves the right to modify its Fees with respect to its Services and to introduce new charges to become effective upon the upcoming Renewal Service Term by providing Customer written notice at least forty-five (45) days prior to the end of the then current Service Term.
Payments may be made by several means as agreed between In1 and Customer.
Ireland & EU – EUR
In Europe (EUR), In1 also operates Direct Debit via SEPA or optionally via GoCardless.
In1 is fully compliant with its obligations under the rules of the European Payments Council in the application of the SEPA Direct Debit Scheme. Most importantly and in all cases the Customer is highly protected in terms of the right to reclaim any undue or incorrectly applied charges.
UK (GB&NI) GBP
In the UK (GBP), In1 operates a Direct Debit facility via GoCardless. The Customer will receive an online invitation to join the GoCardless process.
Beyond the above regions we support multiple processes to collect payments such as the In1 Payment Interface using widely traded currencies via Credit or Charge card. In1 Accounts will provide a URL and amount to be paid. Individual payment terms will be agreed but in general a credit or charge card is required to guarantee such payments. The credit or charge card may be treated as a secondary or fallback means of payment.
10. Agreement Form & Order Form Term
The Initial Term of this Agreement shall begin on the Order Form Effective Date of the first Order Form or from the first non-evaluation use of In1 Services and shall continue in effect for twelve (12) months or until all underlying Order Forms with Customer have expired in accordance with the terms of such Order Form(s), or if this Agreement is terminated earlier, as provided herein. Unless otherwise stated on the Order Form, the Order Form Effective Date will be set to the date the signed Order Form is returned to In1 by the Customer. The term of an applicable Order Form will begin on the Effective Date of the applicable Order Form and shall continue for the initial term specified in such Order Form (“Initial Service Term”). In the event that an Order Form contains Services added to an existing subscription, such added Services shall be billed on a pro-rated basis and will be co-terminus with the Initial Service Term or applicable Renewal Service Term of such Order Form. Unless otherwise set forth in an applicable Order Form, or unless this Agreement is terminated as described in Section 12, upon expiration of the Initial Service Term of any Order Form, such Order Form(s) will renew automatically for a subsequent Renewal Service Term of twelve (12) months (subject to any Fees adjustment as set forth in Section 9, unless either party notifies the other party of its intent to terminate at least ninety (90) days prior to the end of the then current Service Term.
11. Non-Payment and Suspension
In addition to any other rights granted to In1 herein, In1 reserves the right to suspend or terminate this Agreement, any related Order Forms, and Customer’s access to the Services if Customer’s account becomes delinquent and is uncured for a period of sixty (60) days. In addition, In1 has the right to remove any credit terms provided in any Order Form in the event Customer’s account becomes delinquent (e.g. net 30 payment terms will be reduced to net 0). Customer will continue to be charged for Fees during any period of Service suspension due to Customer’s delinquency. If In1 initiates termination of this Agreement for cause, as further described in Section 12, Customer will be obligated to pay all remaining Fees due computed in accordance with their terms for the remainder of the applicable Order Initial Service Term, or Renewal Service Term thereof. Customer agrees that In1 may charge such unpaid Fees to Customer’s credit card, direct debit mandate or similar payment method, or otherwise bill Customer for such unpaid Fees.
12. Termination for Cause
This Agreement may be terminated for the following causes:
- If a party is in default of its obligations and fails to cure default within thirty (30) days after receiving a written notice of default.
- If a party is adjudicated as bankrupt.
- If a party ceases its usual operations for ten (10) consecutive days; force majeure, acts of God, and external power failures are exempt.
The obligation to fully discharge all fees and abide by confidentiality survives termination for any cause.
13. Representation & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. In1 further represents and warrants that the Services will perform substantially in accordance with the relevant offer or order form under normal use and circumstances. In the event of a breach of this warranty, Customer’s sole remedy and In1’s sole obligation will be for In1 to make reasonable commercial efforts to correct the non-conformity or, if In1 is unable to correct the non-conformity within ninety (90) days following Customer’s written notice, for Customer to terminate the applicable Order Form and receive a refund on a pro rata basis of any prepaid unused Fees under such Order Form.
14. Disclaimer of Warranties
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN SECTION 13, IN1 AND ITS LICENSORS MAKE NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. IN1 EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN1 DOES NOT WARRANT THAT THE SERVICES, (INCLUDING PROFESSIONAL SERVICES OR RELATED DELIVERABLES, IF ANY), ARE OR WILL BE ERROR-FREE, WILL MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF IN1 TO ANY THIRD PARTY.
15. Internet Delays
IN1’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. IN1 IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT CAUSED BY IN1.
16. Limitation of Liability
IN NO EVENT SHALL IN1’S AND ITS LICENSORS AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, ILLNESS, PANDEMIC OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED OR LOST FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer grants In1 the right to use Customer’s name, mark and logo on In1’s website, in In1 marketing materials, and to identify Customer as an In1 Customer; provided, however, that any such use must be pre-approved, not be unreasonably withheld, and provided in writing (email will suffice) by Customer. Customer further agrees that “Powered by In1” or similar “by In1” marks may appear in forms, web pages and other outputs of the Services.
All legal notices (i.e. claimed breach or termination of Agreement or Order Form(s)) required to be provided under this Agreement must be delivered in writing (a) in person, (b) by nationally recognized overnight delivery service (c), fax (d), by certified mail to the other party at the address set forth in the applicable Order Form or as otherwise communicated to the other party in writing. All other notices from Customer to In1 may be made by emailing firstname.lastname@example.org and In1 may give notice by emailing Customer’s billing contact as specified on the Order Form. All notices shall be deemed to have been given upon receipt or, if earlier, two (2) business days after being deposited in the mail as required above. Either party may change its address by giving timely notice of the new address to the other party pursuant to this Section and identifying in such notice the date on which such change is effective.
Customer may not assign this Agreement to any third party except upon In1’s prior written consent, which consent shall not be unreasonably withheld. This Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns. In the event of a sale of all, or substantially all of its assets, or a change of control through stock sale, merger or otherwise, either party may assign this Agreement to the new controlling party. This Agreement shall be binding on either party’s respective permitted successors and assigns. Any attempt to assign this Agreement in violation of this Section is null and void.
The following terms and conditions will apply to all information disclosed by either party in connection with this Agreement or access to In1 Services, including but not limited to the terms of this Agreement Order Form or SOW, any modifications to the terms and provisions of the Agreement, Order Form or SOW made specifically for the Customer and not generally available to other members of the In1 Platform, business, supplier and financial information, customer and vendor lists, and pricing, sales and invoicing information, concerning either party or any other members of the In1 Platform. (“Confidential Information”) Confidential Information shall also include any information beyond the above that either party designates at any time as confidential during the term of this Agreement and for a period of three (3) years after the expiration or termination of this Agreement.
Both parties agree not to disclose Confidential Information to any third party and to use reasonable safeguards to protect all Confidential Information during the term of this Agreement and for a period of three (3) years after the expiration or termination of this Agreement. Both parties agree that Confidential Information shall remain strictly confidential and shall not be utilized, directly or indirectly, by either party for his, her or its own business purposes or for any other purpose except as authorized or contemplated herein or in case of an obligation to disclose this Confidential Information to legal or administrative authorities, both parties shall make use of all available efforts to notify the other party prior to disclosure of Confidential Information to legal or administrative authorities. Information shall not be considered “Confidential Information” to the extent that it is generally known or available to the public. All information shall be deemed confidential for the duration of this Agreement.
Confidential Information includes (a) Customer Data, (b) all pricing terms offered to Customer under any Order Form, and (c) the In1 Platform. In addition, neither party will disclose any pricing terms or other terms of this Agreement or the Order Form to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law, or (b) pursuant to a mutually agreeable press release.
See https://www.in1solutions.com/GDPR as a summary of the In1 support of GDPR. At it simplest, collect as little as possible, maintain it for the shortest time possible and remember all end users are entitled to know what data, applying to them, that you store, why you store it and to have what you store deleted (right to be forgotten). In1 will delete customer records upon written request by the Customer / Merchant (i.e. the party licensing In1 technology) and the end user (i.e. room booker, voucher purchaser, etc.) within a reasonable timeline provided no party can demonstrate that an existing transaction remains in process requiring the continued valid use of such data.
This Agreement shall be governed by the laws of the Republic of Ireland without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Services shall be subject to the exclusive jurisdiction of the Republic of Ireland. No text or information set forth on any other purchase order, pre-printed form or document (other than an In1 accepted Order Form) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and In1 as a result of this Agreement or use of the Services. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. This Agreement, together with any applicable Order Form(s) or SOWs (including any other documents referenced therein), comprises the entire agreement between Customer and In1 regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter.
23. Force Majeure
Neither party will be liable for failure to perform or delay in performing any obligation under this Agreement, other than for delay in the payment of money due and payable hereunder, if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), commercial impracticability (commercial impracticability meaning business is closed for more than 30 days and/or out of business, embargo, blockade, legal prohibition, governmental action, riot, insurrection, pandemic, damage, destruction or any other cause beyond the reasonable control of such party. Upon written notice, dates by which performance obligations are scheduled to be met, other than for delay in the payment of money due and payable hereunder, will be extended for a period equal to the time lost due to any delay so caused. As a condition to the claim of non-liability, the party experiencing the difficulty shall give the other prompt written notice (prompt written notice is considered to be no more than ten days from the date of cause), with full details following the occurrence of the cause relied upon. Force Majeure applies as of date of notice and is not retroactive.
As used in this Agreement and in any Order Form(s) associated herewith:
“Content” means the audio and visual information, documents, software, products and services contained in or made available via the Services, other than Customer Data;
“Licensed Project, Work Group, or Entity” means an identifiable Customer application(s), business unit(s), project(s), brand(s) or service(s) for which the Service is licensed, as set forth in the applicable Order Form;
“Customer Data” means any data, information or material that Customer, Customer’s Users, or partners may disclose or submit to In1 or the Services while using the Services;
“Order Effective Date” means the date of first non-evaluation use of In1 Service or the date identified in an Order Form as the date on which such Order Form shall be effective;
“Initial Service Term” means the contracted period, default twelve (12) months, specified in the applicable Order Form.
“Transaction Volume” means the unique visitor count, or other agreed upon measurement amount, invoiced by Customer using the Services for a specific monthly or other period as identified in the applicable Order Form and is measured by taking the sum of such agreed upon measurement amounts posted using the Services for such monthly or other period;
“Renewal Service Term” means each subsequent renewal period, default twelve (12) months, beginning on the expiration of the Initial Term;
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
“Administrator(s)” means those Users by Customer who are authorized to submit, whether electronically or in writing, Order Forms and to create Customer accounts and otherwise administer Customer’s use of the Services;
“Order Form(s)” means the form evidencing the initial subscription order for the Services and any subsequent Order Forms submitted online or in written form, specifying, among other things, the Order Effective Date, Licensed Project, Work Group or Entity, Transaction Volume, and/or other services contracted for, the applicable Fees, the billing period, and other charges as agreed to between the parties, each such fully executed Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail). In the absence, loss or delay of an Order Form or SOW, the first non-evaluation use of In1 Services shall constitute an Order Form and such default values as define by In1, namely an initial term of twelve (12) months and the terms of this MSA shall apply until such Order Form is agreed between Parties.;
“In1 Platform” means all of In1’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by In1 in providing the Services;
“Service(s)” means In1’s online booking engine, voucher booking engine, management consoles and brand advocate platform identified during the ordering process, including In1’s technology, product catalogue, applications gateway modules as described in the relevant product data sheet(s), developed, operated, and maintained by In1 and accessible via http://www.PortalIn1.com and www.BookIn1.com or other In1designated web site or IP address, or ancillary online or offline products and services provided or licensed to Customer by In1, to which Customer is being granted access under this Agreement, including the In1 Platform, the Content and any product, service or license belonging to a third party that appears on an Order Form;
“User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied user identifications and passwords by Customer (or by In1 at Customer’s request);
“Deliverables” means any copyrightable works, products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by In1 (either alone or jointly with Customer or others) that result from Professional Services included in any Order Form and/or SOW, and provided to Customer hereunder.