Agreement Description: ClientBase Marketing Services ("CBMS") is a product of SABRE, Inc. a Texas corporation ("SABRE"), having a business unit , Trams Products and Services at 5777 West Century Boulevard, Suite 1200, Los Angeles, CA 90045 This CBMS Agreement ("Agreement") describes the terms and conditions applicable to the use of the CBMS website and associated software (the "Tool") by an eligible travel agency ("Agency"). The Tool provides Agency with the ability to view, select, and deliver electronic and printable promotional content to Agency's customers from sponsoring parties independently or by authorizing CBMS to send electronic and printable promotional content on Agency's behalf. The Tool, which may be maintained and operated by a third party, is made available by CBMS to Agencies using broadcasting software or a direct mail service provider. The services provided through CBMS or the Tool are referred to in this Agreement as the "Services".
HOW TO ACCESS THE SERVICES
By clicking the "I Agree" button below, or accessing or using the Tool, Agency acknowledge and agree that (1) an authorized representative of Agency has read and understands this Agreement, (2) Agency accepts this Agreement in its present form and as it may be modified by CBMS from time to time, (3) Agency agrees to be bound by the terms and conditions contained herein, as well as by the terms and conditions of any modified version(s) of this Agreement, and (4) Agency accepts this Agreement on behalf of itself and its employees and independent contractors, and will assure that the Agency and its independent contractors will comply with this Agreement. Agency can register to use the Services. The Services can then be accessed and Agency may use the Tool and the Services, subject to this Agreement.
HOW THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY CHANGE
This Agreement may be modified only by CBMS, and CBMS may modify this Agreement at any time by posting the modified Agreement on the website. Any such modifications shall become effective immediately upon posting. By logging in, accessing, and/or using the Tool or the Services, Agency agrees to review this Agreement periodically to learn of any modified terms and conditions.
TERMS AND CONDITIONS OF THIS AGREEMENT
1. Services. Subject to the payment of the royalties or other fees described herein to CBMS, CBMS hereby grants Agency a personal, limited, revocable, nonexclusive, non-transferable, license to access and use the Tool and the Services.
2. Third Party Content. The Services provided under this Agreement are merely a convenience enabling Agency to make available certain promotional content provided by third party sponsors ("Sponsors") to the agency's customers. The information and content provided from such third parties is not verified or confirmed by CBMS, and ALL SUCH INFORMATION IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. CBMS cannot guarantee that the pricing or other information provided by or through the third parties is accurate or that any products and services purchased on or through such Sponsors will be available at the price or under the terms specified. Promotions will be subject to special terms and conditions specified by the Sponsor or others. Accordingly, the specific terms and conditions of the end-customer's purchase or use of any products or services are established solely between end-customer and the Sponsor. Agency understands that CBMS makes no effort to verify the information provided by Sponsors. Agency hereby agrees to release CBMS and its agents and employees from all claims, demands, and damages of every kind and nature (including actual and consequential damages), arising out of or in any way connected with Agency's dealings and disputes with any Sponsor. If the agency is sending e mails from their office, agency is responsible for all aspects of the communication. The agency must retain the CBMS Open Rate tracking code in the e-mail and/or web page.
3. Use Restrictions. Agency will not use any robot, spider, or other automated device ("Automated Device") to access or use the Services or the Tool in any way. Agency will not copy, reproduce, alter, modify, create derivative works from, or publicly display any content from the Services, or otherwise use the Services in any way not expressly authorized by this Agreement, without the prior express written permission of CBMS. Agency will not reverse engineer, decompile, disassemble, decrypt, extract portions of, or translate the Services or the Tool, except as permitted by applicable law. Agency agrees not to "frame" or "mirror" any content or information contained on or accessible from the Services on any other server or Internet-based device without the prior written authorization of CBMS. Agency further warrants and agrees that, while using the Services, Agency will not upload, post, transmit, publish, or otherwise distribute through the Services any materials, and Agency will not commit any acts, that: (a) are unlawful, threatening, harassing, obscene, or profane, (b) restrict or inhibit any other user from using and enjoying the Services, (c) commit or encourage conduct that would constitute a criminal offense or give rise to civil liability, or (d) contain a virus or other harmful components, advertising of any kind, or false or misleading indications of origin or statements of fact. Agency acknowledges that CBMS has no control over the distribution lists provided by Agency and transmitted through the Services . Agency represents and warrants that any and all distribution lists provided by Agency to CBMS: (i) are based upon consent or an established business relationship, (ii) have not been obtained through internet harvesting methods or other unlawful collection of electronic addresses, and (iii) are complete, accurate, and updated for any opt-outs, as applicable and required by law. Agency further represents and warrants that its use of the Services complies with all laws and regulations, including but not limited to laws and regulations pertaining to commercial email, personal data privacy, and export control, including, without limitation, CAN-SPAM and Canada's Anti-Spam Legislation (CASL).
4. Data Privacy. The Services provided hereunder will be subject to the CBMS Data Privacy Policy, as such Policy may be changed by CBMS from time to time. . For purposes of this Agreement, "Confidential Information" shall mean the customer profiles and other information related to Agency's specific customers (e-mail addresses) provided to CBMS by Agency. All Confidential Information owned by Agency shall remain the property of Agency. CBMS shall not provide the Confidential Information to any other person, firm or corporation except for those persons or firms intended by the disclosure or receipt of the information. CBMS agrees to restrict circulation of Confidential Information within its own organization to those employees who need to receive Confidential Information, to give such employees instructions to hold in confidence all Confidential Information and to use the Confidential Information only in connection with the uses intended by the disclosure or receipt of the information. All Confidential Information shall be immediately returned to Agency at its request, including all copies thereof. Agency may give permission to CBMS to disclose Confidential Information otherwise required to be kept confidential by this Agreement.
5. Agency specifically acknowledges that CBMS and/or the operator of the Tool may share aggregate level information with third parties.
6. Modifications to Services/Tool. CBMS reserves the right, for any reason, in its sole discretion and at any time, to terminate, change, upgrade, or suspend any aspect of the Services, including but not limited to content, features, functions, methods of access, or hours of availability. CBMS may impose limits on certain features of the Services and the Tool or restrict Agency's access to part or all of the Services without notice or penalty.
7. Termination. CBMS may at any time, with or without cause, and without prior notice, temporarily or indefinitely suspend Agency's ability to use the Service, and/or terminate this Agreement, which action may be taken, without limitation if Agency breaches any term or condition of this Agreement, or if CBMS believes that Agency's actions may cause legal liability for Agency, CBMS's users, or CBMS,. Whatever actions CBMS decides to take will not limit CBMS in pursuing any other legal or equitable remedies available to CBMS. Upon termination of this Agreement for any reason, Agency will cease access and use of the Services. Agency may terminate this agreement at any time sending a written notice via certified or registered mail to: TRAMS Legal Department 5777 West Century Blvd. Suite 1200 Los Angeles, CA 90045. Agency is responsible for all charges prior to termination. In the event Agency does not pay for the service, agency can no longer access the promotion material on the CBMS website but is still responsible for the agreed upon monthly fee.
8. Indemnification. Agency will, at Agency's expense, indemnify, defend and hold CBMS and CBMS's employees, agents, successors, directors, officers, subsidiaries, affiliates, and assigns harmless from any suits, losses, claims, demands, liabilities, costs, and expenses (including attorneys' fees and amounts paid to settle any claims), threatened, made, or filed by any third party resulting from or arising out of (i) Agency's use of the Services or any Sponsor's content or services, (ii) Agency's failure to comply with any applicable laws and regulations, (iii) Agency's unauthorized use or manipulation of any Sponsor's content or services, and/or (iv) Agency's breach of this Agreement, and/or (v) Agency's breach of any representations or warranties in Section 3 (Use Restrictions). CBMS will provide Agency with written notice of any such claim, allow Agency to control the defense and settlement of such claim, and provide Agency with proper and full information and assistance at Agency's expense to settle and/or defend any such claim.
Agency agrees not to settle any action, claim, or demand on CBMS's behalf without CBMS's prior written consent. CBMS will have the right to participate in the defense and hire counsel of its choice at Agency's expense.
9. Disclaimer or Warranties. AGENCY'S USE OF THE SERVICES IS AT AGENCY'S SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS. CBMS MAKES NO WARRANTIES WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES THAT: (I) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR VIRUS FREE, (II) THE SERVICES WILL MEET AGENCY'S REQUIREMENTS, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES ARE ACCURATE OR RELIABLE, AND (IV) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. CBMS ALSO EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSES, PERFORMANCE, TITLE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, QUIET ENJOYMENT, SYSTEM INTEGRATION, DATE ACCURACY, AND ANY WARRANTIES OR CONDITIONS ARISING BY STATUTE OR OTHERWISE IN LAW, EQUITY, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. AGENCY MAY HAVE OTHER LEGAL RIGHTS RELATING TO THIS AGREEMENT, WHICH MAY VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
10. Limitation of Liability. IN NO EVENT SHALL CBMS BE LIABLE TO AGENCY OR ANY OTHER PERSON UNDER ANY LEGAL THEORY OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY, TORT, OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, SALES, REVENUE, USE, DATA, HARDWARE, SOFTWARE, OR GOODWILL; INTERRUPTION OF BUSINESS; ANTICIPATED OR LOST PROFITS; OR THIRD PARTY CLAIMS) THAT ARISE OUT OF OR IN CONNECTION WITH AGENCY'S USE OF OR INABLITY TO USE THE SERVICES. CBMS'S TOTAL AGGREGATE LIABILITY TO AGENCY OR ANY OTHER PERSON FOR ACTUAL, DIRECT DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT WILL NOT EXCEED ONE THOUSAND DOLLARS ($1,000) AND AGENCY AGREES TO BE RESPONSIBLE FOR ANY LIABILITY EXCEEDING SUCH AMOUNT. AGENCY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY WILL APPLY WHETHER OR NOT CBMS IS GIVEN NOTICE OF THE POSSIBLITY OF SUCH DAMAGES. BECAUSE SOME STATES/ JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO AGENCY.
11. Assignment. Agency may not assign this Agreement or any of Agency's rights or obligations under it without CBMS's prior written consent. Any attempted assignment without CBMS's consent will be void and will cause this Agreement and Agency's right to use the Services to terminate immediately and without notice from CBMS. This Agreement and the rights and obligations of CBMS and Agency under it will be binding on CBMS's successors and assigns, and Agency's successors and assigns that CBMS authorizes with prior written consent.
12. Relationship. Agency has only the rights set forth in this Agreement to use the Services and the Tool. Agency's use of the Services and the Tool as permitted by this Agreement is entirely independent of CBMS and in Agency's sole discretion. This Agreement creates no relationship between CBMS and Agency other than as expressly stated herein. Specifically, this Agreement creates no relationship between Agency and CBMS of independent contractors, partners, joint ventures, fiduciaries, employees, or agents.
13. Waiver. CBMS's waiver of any particular breach or of any particular act or omission of noncompliance with any requirement of this Agreement shall not constitute a waiver of any other breach or act or omission of noncompliance with any requirement of this Agreement.
14. Governing Law. This Agreement and its performance shall be governed by the laws of the State of Texas, United States of America, without regard to its conflict of laws provisions, and by applicable federal laws of the United States. To the extent allowed by applicable law, any claim or cause of action arising from or relating to Agency's access or use of the Services must be filed with the court having proper jurisdiction over such claim or cause of action within two (2) years after the date on which such claim or action arose or accrued.
15. Entire Agreement. This Agreement constitutes the entire agreement between CBMS and Agency with respect to the Services, and supersedes all prior agreements between CBMS and Agency. No oral statements, promises, or agreements will alter the terms of this Agreement. If any provision of this Agreement is held unenforceable, the unenforceable provision will, at CBMS's option, be severed from this Agreement, or construed in accordance with applicable law as nearly as possible to reflect CBMS's and Agency's mutual original intent, and all other provisions will remain in full force and effect. However, if in CBMS's opinion such severance or construction of such provision would frustrate the purpose of this Agreement, then CBMS may terminate this Agreement.
16. In the event CBMS hosts a copy of the AGENCY's database, CBMS will make commercially reasonable efforts to protect the data. CBMS will only send out E Mail to an agency's customer base based upon the profile an direction submitted by the AGENCY. In the event direction is provided verbally or via written communication CBMS will make reasonable efforts to accurately fulfill the request by the AGENCY.
17. ROYALTY. As consideration for the grant of the License to use the Tool, and as a condition to Agency's exercise thereof, Agency shall pay to CBMS the License Fee in an amount determined from time to time by CBMS to be the rate charged to its licensees generally. No increase in such rate shall be effective unless CBMS shall have provided Agency with no less than twenty (20) days' notice. Agency acknowledges that CBMS may, at its discretion, offer individual licensees rates which are lower than that which it determines to charge to its licensees generally, and such lower rates will not affect the rates charged to Agency. License fees are fully earned by CBMS upon receipt, all payments are final and CBMS shall under no circumstances be obligated to refund any License fee received by CBMS.
18. Agency agrees to provide CBMS with all rights to send out e mail on its behalf and use the Agency's logo, address, call to action and any other information specific to the Agency. Agency warrants that it has full rights to use this information, content, images on any communication sent on its behalf by CBMS.
19. If agency utilizes dynamic links on any communication sent by CBMS, Agency takes complete responsibility that information displayed on the web page is accurate and the Agency has rights to use supplier offers/content on these linked web pages.
20. Waiver: No provision of this agreement shall be deemed to have been waived by a party unless the waiver is in writing and signed by both parties.
21. Notice: All notices, requests and elections allowed by this agreement need to be to: Sabre Legal Department Trams Products and Services 5777 West Century Blvd. Suite 1200 Los Angeles, CA 90045.
END OF AGREEMENT
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