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Supplier Terms of Use

1. Purpose. Travel Sciences, Inc. (“TS”) shall display or transmit the promotional graphics, links, banner advertising, pop-ups, emails or other products (“Promotion”) as submitted by the supplier as set forth in the supplier sign-up page (“Supplier”) on this website, www.OpenTravelCRM.com (“TS Site”), subject to these terms of use (“Terms”). The posting of the Promotion shall be subject to availability. Supplier shall be solely responsible for delivering to TS the Promotion. The Promotion shall link and/or connect to Supplier’s website (“Supplier Site”) and must comply with the technical specifications established by TS from time to time. TS shall be relieved of its obligation to (and have no liability if it does not) display or transmit such Promotion if Supplier fails to deliver the Promotion as required by TS. TS shall have no liability to Supplier for any act or omission of any user of the TS Site, including the customers of any of the users. TS reserves the right to reject (in its sole discretion) without liability any Promotion. TS makes no representation or guarantee as to (and have no liability for) the amount of sales that Supplier shall make in response to a particular Promotion. Unless expressly stated otherwise, any Promotion submitted by Supplier shall be on a non-exclusive basis and is subject to rotation with other suppliers.

2. Payment. Supplier shall pay to TS the amount as selected by Supplier above for such Promotion(s). Supplier shall pay to TS the selected amount within thirty (30) days of the date of invoice. All payments shall be made in U.S. Dollars. Any payment that is not paid on or before the date due shall, in addition to all other remedies available to TS, bear interest at a rate of one and half percent (1.5%) per month, or the maximum rate permitted by law, for the number of days such payment is delinquent. TS may terminate or suspend performance under this Agreement immediately upon written notice in the event Supplier is delinquent in any payment hereunder and such delinquency remains uncured after five (5) days following written notice.

3. Supplier Responsibilities. Supplier warrants and represents to TS that Supplier will not use its Promotions for any purpose that is unlawful or prohibited by these Terms, including without limitation the posting or transmitting any threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material.  If Supplier violates any of these Terms, such Promotion shall be removed from the TS Site immediately without notice. Moreover, Supplier is solely responsible for its Promotion(s), and TS acts as a passive conduit for Supplier’s online distribution and publication of its Promotion.

4. License of Supplier Intellectual Property. Supplier hereby grants to TS (and TS’ designees) a non-exclusive, non-transferable, royalty-free limited license to use, reproduce, display, transmit, and redistribute the Promotion, links to Supplier’s Site and accompanying authorized trade and service marks as delivered to TS by Supplier from time to time for the purpose designated in these Terms.

5. Disclaimer. EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER PARTY MAKES ANY WARRANTIES WITH RESPECT TO ITS SERVICES AND/OR PRODUCTS.

6. Liability Limitations. UNLESS CAUSED BY OR DUE TO A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM SUCH PARTY’S PERFORMANCE OR NON-PERFORMANCE UNDER ANY PROVISION OF THESE TERMS OR THE PROVISION OF SUCH PARTY’S SERVICES AND/OR PRODUCTS (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAYABLE BY SUPPLIER TO TS HEREUNDER. NOTWITHSTANDING THE FOREGOING, THIS SECTION SHALL NOT LIMIT SUPPLIER’S LIABILITY TO TS FOR FULFILLMENT OF ANY INDEMNIFICATION OBLIGATIONS HEREUNDER.

7. Indemnification. Supplier shall defend, indemnify and hold TS and its affiliates, successors, and assigns harmless from and against all third party claims, suits and proceedings and any and all damages, liabilities, costs and expenses (including reasonable attorney’s fees and court costs) arising from (a) the Supplier’s Promotion or anything contained on the Supplier Site, (b) Supplier’s use of any customer information received from TS, (c) TS’ posting or failure to post any Promotion, (d) the sale or purchase of Supplier’s goods or services, (e) any act or omission of any user of the TS Site, including the customers of any of the users or (f) any claims alleging infringement of intellectual property rights, trade secrets, publicity or privacy rights. TS shall have the right to participate in the defense of a claim by Supplier using counsel of TS’ choice at TS’ expense. Supplier shall not, without the prior consent of TS settle, compromise or consent to the entry of any judgment that imposes any liability upon TS.

8. Termination. Either party may be excused from its obligations hereunder without penalty, in the event that the other party materially breaches any term or condition herein (“Event of Default”). In the Event of Default, the non-breaching party shall give the breaching party written notice of the same and the breaching party shall have five (5) days to cure such Event of Default, except for Supplier’s payment obligations in Section 2 herein. In the event that the breaching party does not cure such Event of Default within such five (5) day period, the non-breaching party shall be excused from its obligations hereunder immediately upon written notice. Notwithstanding anything to the contrary, TS may be excused from its obligations hereunder without cause and without penalty upon three (3) days written notice at any time, provided that TS refunds to Supplier all applicable fees paid by Supplier for the display of the Promotion(s) that TS has not fulfilled.

9. Force Majeure. Neither party shall be deemed in default or otherwise liable hereunder due to its inability to perform its obligations by reason of fire, earthquake, flood, snowstorm, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, riot, threatened act and/or act of terrorism, civil disturbance, act of public enemy, war, act of God any applicable ordinance, law, judicial order or any failure or delay of any transportation, power or communications system or any other or similar cause not under such party’s control.

10. No Waiver. The failure of any party at any time to require performance by the other party of any provision hereof shall not be considered or held to be a waiver of the provision itself.

11. Non-Assignability. Neither the obligations set forth herein nor the rights granted herein by TS to Supplier may be assigned or delegated to any other entity or person without the express written consent of TS, which consent may be withheld in TS’ sole discretion. TS may freely assign its rights and/or obligations hereunder, provided any such assignee shall honor TS’ obligations hereunder.

12. Law Governing. These Terms shall be governed by the laws of the State of Connecticut without regard to conflicts of laws principles. Any legal proceeding of any nature arising between the parties shall be submitted for trial, without jury, before the state or federal courts located in Hartford or New Haven County. The parties consent to the exclusive jurisdiction and exclusive venue of any such court.

13. Scope of Agreement. TS may modify any or all of the OpenTravel CRM application at any time in its sole discretion. These Terms constitutes the entire agreement between the parties and supersede all prior contracts, agreements, proposals, understandings, representations, correspondence or any other communication regarding the subject matter hereof, whether in verbal or written form. Any amendments or modifications to these Terms by TS shall be made in writing and agreed to by Supplier. If any provision of these Terms is deemed to be invalid, it shall be considered deleted herefrom and shall not invalidate the remaining provisions.

 

Copyright © 2008 Travel Sciences, Inc.   All rights reserved.

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