Master Services Agreement

www.cendyn.com

Updated: June 1, 2022

THE INDIVIDUAL OR ENTITY EXECUTING AN ORDER FORM (“Customer”) THAT INCORPORATES THIS MASTER SERVICES AGREEMENT (“MSA”) BY REFERENCE, AGREES THAT THE TERMS AND CONDITIONS OF THIS MSA SHALL GOVERN CUSTOMER’S ACCESS TO, AND CENDYN’S PROVISION OF, THE SERVICES SET FORTH UNDER THE ORDER FORM. THIS MSA COMMENCES ON THE EFFECTIVE DATE, AS DEFINED IN THE EXECUTED ORDER FORM (“Effective Date”) AND CONTINUES IN EFFECT THROUGH THE DURATION OF ALL ORDER FORMS HEREUNDER (“Term”).

BY ACCESSING AND USING THE SERVICES IN ANY WAY, CUSTOMER AGREES TO BE BOUND BY THIS MSA, INCLUDING THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY PROVISIONS BELOW. IF CUSTOMER DOES NOT WISH TO BE BOUND TO THESE TERMS AND CONDITIONS, CUSTOMER IS ADVISED NOT TO USE THE SERVICES.

  1. DEFINITIONS AND INTERPRETATION. All capitalized terms used in this MSA but not defined herein have the meanings set forth elsewhere in this MSA or the Order Form. In addition, the following definitions apply for the purposes of this MSA:
    1. “Accepted Currency” means the United States Dollar (“USD”) unless another currency is otherwise specified and mutually agreed upon as the Accepted Currency in a validly executed Order Form
    2. “Affiliate” or “Affiliates” means any entity or person that directly or indirectly, through one or more intermediaries, owns, controls, is controlled by or is under common control with, aligned with, or under the influence of any person or entity to which the reference is made. For the purposes of this definition “owned, controlled, aligned with, or under the influence of” shall mean more than fifty percent (50%) ownership of voting power or beneficial interest, or an officer, director, trustee, employee, stockholder of fifteen percent (15%) or more of the voting stock or interests (each an “Affiliate”). The Customer is jointly and severally liable for the acts of its Affiliates in relation to this Agreement and access and use of the Services.
    3. “Aggregated Data” shall mean numerical or non-numerical data inputted from multiple sources and/or on multiple measures, variables and individuals including the Customer, end users, Customer Data, or data outputted as a result of the Customer’s use of the Services that is masked or are otherwise anonymous and no longer identifiable as to its source. All Aggregated Data shall be the sole property of Cendyn. In no event shall Aggregated Data be considered or be considered to be comprised of Customer Data or Customer’s Confidential Information. In addition to Aggregated Data, Cendyn and its Affiliates may collect and use technical information gathered as part of its support services, and to improve Cendyn Software and Services. Cendyn will not disclose this information in a form that identifies Customer.
    4. “Agreement” means collectively the Order Form (including any schedules, addendums, amendments, appendices, or statements of work attached thereto) and this MSA, incorporated thereto in its entirety, as amended from time to time.
    5. “Authorized Users” means individuals who are employees of Customer, its Affiliates, subsidiaries, or agents under Customer’s control.
    6. “Business Day” means a day that is not a Saturday, Sunday, or public holiday in the United States.
    7. “Cendyn” means Cendyn Group LLC, a Delaware limited liability company, along with its parents, subsidiaries, and Affiliates, including but not limited to: (i) Central Dynamics LLC; (ii) Travel Tripper LLC; (iii) Travel Tripper Limited; (iv) Travel Tripper India Pvt. Ltd; (v) Serenata IntraWare GmbH; (vi) NextGuest, Inc. (vii) and (viii) Cendyn Ovations, LLC.
    8. “Cendyn Data” means any and all information contained in any Cendyn Software or Service including, but not limited to, pricing information and the output, but excluding only the Customer Data.
    9. “Customer” shall mean the Customer’s legal entity listed on the Order Form, its employees, agents, Authorized Users and end users of the Services.
    10. “Customer Data” shall mean data retrieved from, or inputted by, the Customer or end users of the Services, data added by Customer or an end user to a Services application as a result of Customer or end user access to the Service(s), data acquired for Customer by Cendyn and loaded into Cendyn Software, or any other data or information of Customer or end user accessed, obtained or provided to Cendyn by Customer or an end user pursuant to the Agreement. In no event shall Aggregated Data be considered as, or being comprised of, Customer Data.
    11. “Cendyn Software” means any software or system owned by Cendyn or supplied by Cendyn to Customer pursuant to a validly executed Order Form.
    12. “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.
    13. “Documentation” means training materials, reports, charts, diagrams, instruction manuals, etc.
    14. “Fees” means the fees payable by the Customer to Cendyn in connection with the Agreement.
    15. “Intellectual Property” 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) software, including its structure, organization, software code, binary code, compiled code, source code, scripting, code and associated Documentation; (vi) 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 (vii) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force.
    16. “Order Form” means the document executed by Customer and Cendyn (including any schedules, addendums, amendments, appendices, or statements of work attached thereto) from which Services (as defined below) were ordered and to which this MSA in its entirety, as amended from time to time, is incorporated.
    17. “Party” or “Parties” means, respectively, either Cendyn or Customer, and as the context requires both Cendyn and Customer.
    18. “Services” means Cendyn’s supply of services to Customer, which may include (without limitation) any of the following, each as more particularly described under a fully executed Order Form:
      1. Licensing of Cendyn Software;
      2. training and Documentation;
      3. installation, integration, maintenance, assistance or backup services;
      4. help desk and support services;
      5. other connectivity applications and interfaces;
      6. conversion or adaptation of data and information from Customer systems; or
      7. development or consulting services as specified under any accompanying Statement of Work (“SOW”).
  2. LIMITED ACCESS TO SERVICES & LIMITED LICENSE. Subject to the Customer’s continual timely payment of all Fees owed to Cendyn and abidance by the terms of the Agreement, Cendyn 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 commencing upon the Effective Date. All rights not expressly set forth in the Agreement, including rights to Aggregated Data, are reserved by, and automatically inure to the sole ownership and benefit of, Cendyn. Customer acknowledges that the Agreement is a “Software as a Service” agreement and Cendyn will not deliver copies of any software or code to Customer as part of the Services. Customer is not permitted to make any copies of Cendyn Software or Services. Customer and its Authorized User’s right to use the Services shall terminate immediately upon termination of the Agreement or upon termination of Authorized User’s employment or authorization to access the Services. Customer shall be solely responsible for monitoring and terminating, when appropriate, its Authorized Users’ access to all Cendyn Software and Services. Customer hereby grants to Cendyn a non-exclusive, fully paid, world-wide and irrevocable license to use Customer Data as required to provide the Services, and to copy, anonymize, aggregate, process, disaggregate and display Aggregated Data for the sole purposes of deriving or compiling or incorporating such Aggregated Data with or into other similar data and information available, derived or obtained from other clients, customers, licensees or users of the Services for internal statistical or performance analysis by Cendyn. Customer’s grant of license herein for Aggregated Data shall survive the expiration or termination of the Agreement. Cendyn represents and warrants that the scope of use of the Aggregated Data will be limited to the terms of this Section and upon disaggregation the Aggregated Data, will be anonymous and incapable of re-assembly or identification as to its specific source.
  3. INVOICING AND PAYMENT. Customer shall pay Cendyn for the Services in accordance with the Fees set forth in the executed Order Form.
    1. Payment Terms. All Fees are due to Cendyn within twenty (20) days of the invoice date and payments shall be made by Customer in the Accepted. If Customer remits payment in any currency other than the Accepted Currency, Customer shall be responsible for all expenses incurred by Cendyn to accept such payment, including (without limitation) any associated currency conversion or transaction fees. All payments shall be made by wire transfer, Automated Clearing House (“ACH”) electronic funds transfer, or credit card (credit card payments subject to a 3.5% convenience fee). Cendyn 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. If Customer has a good faith dispute with any invoice, Customer must provide written notification to Cendyn 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 while an invoice is under dispute. Once the dispute over the invoice has been resolved, either: (i) Customer shall pay the remaining amount due to Cendyn within five (5) calendar days of such resolution; or (ii) Cendyn shall apply any overpaid amount as a credit to Customer’s next invoice. Customer’s failure to dispute in accordance with this Section shall constitute Customer’s waiver of any objection to the amount billed on an invoice. 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, shall entitle Cendyn to immediately suspend all Services provided to the Customer without notice until such payment breach is cured by Customer. If Customer fails to pay a late invoice within ten (10) calendar days of the due date, 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. Customer shall pay any collection costs, including reasonable attorneys’ fees, and other expenses incurred by Cendyn to collect any sums due under the Agreement.
    2. Payment Obligation. Customer agrees that its payment obligation under the 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 the Agreement; (ii) the Customer’s franchise changes or imposes conditions interfering with the ability of Cendyn to perform the Services; or (iii) any similar event occurs preventing Cendyn from performing the Services.
    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 Cendyn’s performance of the Agreement, whether foreign, national, state, or local. In no event shall Customer be liable for taxes of Cendyn in respect of its net income, payroll, or any other business activity unrelated to Cendyn’s provision of Services to Customer hereunder. Except as expressly stated otherwise in the Agreement, all Fees exclude any applicable Taxes.
  4. TERMINATION.
    1. Termination Upon Breach. Either Party may terminate the 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. Termination upon breach in no way limits any rights or remedies the non-breaching Party may be entitled to in law or in equity pursuant to the Agreement.
    2. Termination Upon Change in Financial Position. Cendyn may terminate the 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.
    3. 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 Cendyn during such Force Majeure Events.
    4. Agreed Damages Upon Early Termination. If Customer terminates this Agreement before the end of the Term for any reason other than Cendyn’s breach, or if Cendyn terminates this Agreement due to Customer’s breach (collectively, “Early Termination”), Customer agrees to pay Cendyn as liquidated damages for such Early Termination, and not as a penalty, an amount equal to the monthly average amount attributable to this Agreement that is reflected on the billing statements for the twelve (12) months immediately prior to Early Termination, multiplied by the number of months remaining in the Term of this Agreement at the time of the Early Termination. The Parties agree that: (i) such amounts are liquidated damages payable to Cendyn for Customer’s cause of the Early Termination of this Agreement and are not a penalty; (ii) it would be difficult or impossible to ascertain Cendyn’s actual damages arising from such a termination of this Agreement; (iii) the amount of such liquidated damages represents a reasonable and good faith estimate of such damages; and (iv) the liquidated damages agreed upon under this Section are not indirect, punitive, special, incidental, statutory, exemplary, or consequential damages for purposes of this Agreement. If Customer causes the Early Termination of any individual Service or Services provided to a particular hotel property under this Agreement, the agreed upon damages provided under this Section shall apply as applicable to the specific Services terminated. Cendyn’s rights under this Section are in addition to any other rights that Cendyn may have hereunder.
    5. Post-Termination. Upon termination or expiration of this Agreement, Customer shall pay all outstanding amounts due and payable to Cendyn. Cendyn will invoice Customer for all outstanding Fees immediately due upon termination. If certain transaction Fees are due upon arrival or departure date of a hotel reservation (e.g., GDS Fees), Cendyn will continue to invoice Customer in accordance with the payment terms provided under the Order Form for each post-termination reservation accordingly. Any website files, including (without limitation): website design, features, functionality, templates, themes, sourced and licensed imagery, and other website elements (collectively, the “Website Materials”) shall remain the sole and exclusive property of Cendyn. Customer shall cease use of all Services and return to Cendyn all Confidential Information received, all copies of the Documentation, and any Website Materials in the Customer’s possession immediately upon termination. Upon receipt of Customer’s request within thirty (30) days of the termination or expiration of this Agreement, Cendyn will prepare and deliver to Customer an estimate of the projected costs for retrieval and transfer of Customer’s Data from Cendyn Software to Customer. The retrieval and transfer of Customer Data will be performed at the rate of $175 per hour. Cendyn will deliver the Customer Data in either text, .xls or comma delimited format. If requested, Cendyn will use reasonable efforts to accommodate the Customer’s request for a data format other than those set forth herein. Customer acknowledges it may incur additional charges depending on the complexities of the Customer’s requested data transfer format. A condition precedent to Cendyn cooperating with any data retrieval request is the prepayment of all estimated data transfer charges, which shall constitute the Customer’s acceptance to pay additional data transfer charges if the amount estimated by Cendyn is reasonably exceeded. All other obligations of Cendyn and Customer that were incurred prior to the cancellation, termination, or expiration of the Agreement shall survive such cancellation, termination, or expiration.
  5. CONFIDENTIALITY AND DATA USE.
    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 permitted herein. The Parties agree that all information concerning the design, functionality, and operation of the Services and/or Cendyn Software are proprietary and the Confidential Information of Cendyn. Cendyn acknowledges that Customer Data is the Confidential Information of the Customer.
    2. Non-Disclosure. Each Receiving Party hereto shall use commercially reasonable 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. Customer shall be responsible for the breach of this Section by its Authorized Users. The confidentiality provisions set forth herein shall survive termination of this Agreement.
    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.
    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.
    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. 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. INTELLECTUAL PROPERTY.
    1. Cendyn Ownership of Intellectual Property. Cendyn and its licensors shall retain and reserve exclusive ownership of all worldwide right, title, and interest, including without limitation, all Intellectual Property rights in and to Cendyn Software, the Services, and Aggregated Data; the design, functionality, operation, and components of the same; all derivative works, modifications, enhancements, and upgrades to the same; and Cendyn’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 Cendyn Software, Services, or Aggregated Data in which Cendyn possesses all rights, title, and interests.
    2. Customer Restrictions. Customer and its Authorized Users are expressly restricted from doing the following: (i) making derivative works, customizations, or enhancements based on Cendyn Software or Services; (ii) modifying, copying, duplicating, reproducing, adapting, altering, reverse engineering, decompiling, or reverse assembling, or otherwise attempting to derive or reveal the software code, binary code, compiled code, source code or the scripting code of all or any portion of Cendyn Software or Services for any reason; (iii) renting, leasing, selling, reselling, distributing, loan, or otherwise transferring Cendyn Software or Services; (iv) sharing or permitting any third parties to access or utilize Cendyn Software or Services without the express written consent of Cendyn; (v) sublicensing Cendyn Software or Services; (vi) using Cendyn Software or Services as a timesharing or service bureau or other similar type of service or (vii) removing, altering, or obscuring any copyright, trademark or other proprietary rights notice on or in Cendyn Software or Services.
    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 for the purpose of providing and receiving Services, and for each Party’s internal business purposes.
  7. NETWORK SECURITY.
    1. Confidentiality and Security of Access Credentials. Customer and its Authorized Users (collectively, the “End User”) are responsible for maintaining the confidentiality and security of all passwords and usernames (“Access Credentials”) issued to access Cendyn Software and Services. Cendyn 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 Cendyn’s breach of the foregoing: (i) Customer shall be fully responsible for all activities that occur while accessing Cendyn Software and Services using the Access Credentials; and (ii) Cendyn shall not be liable for any loss incurred as a result of someone other than the End User gaining access to Cendyn Software or Services through the use of the End User’s Access Credentials. Additionally, Cendyn shall not be liable or responsible for any unauthorized access or misuse of Cendyn Software or Services by the End Users. Upon Cendyn’s reasonable request, Customer shall identify the individuals it has given access to Cendyn Software or Services and notify Cendyn of any changes to such group. Customer agrees to implement and maintain policies and procedures to protect the security of Cendyn Software and Services. Cendyn shall have the right, in its sole and absolute discretion, to deny any individual’s access to Cendyn Software or Services due to legitimate security concerns.
    2. Data Processing Agreement. In consideration of the mutual obligations set out herein, the Parties expressly acknowledge and agree that the terms of the Data Processing Agreement (“DPA”) appearing at https://www.cendyn.com/cendyn_customer_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.
    3. PCI DSS Compliance. To the extent that Customer is making use of Cendyn’s Central Reservation System (“CRS”) under this Agreement, Cendyn warrants that its CRS is compliant with the Payment Card Industry Data Security Standard (“PCI-DSS”) and must remain compliant for the duration of this Agreement. In connection with Customer’s use of its CRS, Cendyn will store, process, and transmit all cardholder data in accordance with the PCI DSS.
  8. COOPERATION; INFRASTRUCTURE. Customer agrees: (i) to reasonably cooperate with Cendyn 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.
  9. REPRESENTATIONS & WARRANTIES.
    1. General. 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) execution of this Agreement 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. In addition to the foregoing, Customer represents, warrants, and covenants that Customer and its Authorized Users will not use the Services, Cendyn Software, or Documentation in any manner that violates any local, state, or federal law or any law of other nations.
    2. Trade Compliance. Each Party represents and warrants that neither it nor any of its Affiliates is a person or entity who: (i) is directly or indirectly owned or controlled by any person currently included on the specially designated nationals and blocked persons list or the consolidated sanctions list maintained by the office of foreign assets control, US Department of the Treasury (“OFAC”) or other similar list maintained by any United States governmental entity (collectively, “SDN List”), or (ii) is directly or indirectly owned or controlled by any person or entity who is located, organized, or resident in a country or territory that is, or whose government is, the target of sanctions imposed by OFAC or any other United States governmental entity. Customer shall immediately notify Cendyn if it becomes non-compliant with this Section at anytime during the Term of the Agreement and Cendyn shall reserve the right to terminate the Agreement immediately for cause and without further notice to Customer.
    3. OFAC Covenant. Customer represents, warrants, and covenants to comply with all United States economic sanctions laws for the duration of the Term. Without limiting the generality of the foregoing, Customer shall not: (i) directly or indirectly export, re-export, transship, transfer, or otherwise deliver the Services or any portion of the Services to an embargoed target; or (ii) broker, finance, or otherwise facilitate any transaction in violation of any United States economic sanctions law.
  10. DISCLAIMER OF WARRANTIES; INDEMNIFICATION; LIMITATIONS OF LIABILITY.
    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 CENDYN AND EXPRESSLY WAIVED BY CUSTOMER TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED AS-IS, AS AVAILABLE, AND WITH ALL FAULTS. CENDYN DOES NOT WARRANT THAT THE PROVISION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
    2. Indemnification.
      1. Customer agrees to indemnify, defend and hold harmless Cendyn, 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 Cendyn Software or Service in accordance with this Agreement; (ii) Customer’s breach of any representations, warranties or agreements under this Agreement; (iii) any failure of Customer’s website or internet booking engine to comply with any accessibility requirements, including (without limitation) those promulgated pursuant to the Americans with Disabilities Act, Web Content Accessibility Guidelines, or similar regulations; (iv) Customer’s acts or omissions hereunder, including, without limitation, any unauthorized use by it or any of its Authorized Users of any portion of Cendyn Software or Services; (v) Cendyn’s valid use of information and/or data provided by Customer; (vi) 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; (vii) actual or alleged infringement of Intellectual Property rights by Customer’s information it provides to Cendyn, including (without limitation), Customer’s Confidential Information, brands, trademarks, logos, trade names, room images, content, and/or property descriptions.
      2. Cendyn agrees to indemnify, defend and hold harmless Customer, its affiliates, and each of their directors, officers, employees, agents and members, from and against any and all Claims related to or arising from: (i) Cendyn’s breach of any representations or warranties under this Agreement as a result of its willful misconduct or gross negligence; or (ii) actual infringement of Intellectual Property rights by the Services provided by Cendyn, including (without limitation), Cendyn’s Confidential Information, brands, trademarks, logos, trade names, and/or Cendyn Software.
    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 CENDYN 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, CENDYN’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 CUSTOMER TO CENDYN UNDER THE TERMS OF THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. CENDYN ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY CUSTOMER OR THIRD PARTY EQUIPMENT, SOFTWARE, OR DATA RESULTING FROM ANY CAUSE. CENDYN DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM CUSTOMER’S WEBSITE, BOOKING ENGINE, OR 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, CENDYN DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS AND MAKES NO WARRANTIES WITH RESPECT TO SUCH DATA FLOW. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
  11. GENERAL TERMS & CONDITIONS.
    1. Third Party Services. Cendyn retains the right to subcontract any of the Services in this Agreement to a third party. As the contracting Party with Customer, Cendyn will remain liable for all terms of service set forth in this Agreement, whether the Service is fulfilled by Cendyn’s own employees, contractors, or a third party entity. Cendyn reserves the right to direct Customers to third parties for support of those parties’ services.
    2. Services Not Legal Advice. Cendyn does not offer legal advice and does not provide substitute services for those provided by an attorney. Although Cendyn may provide suggestions pertaining to Customer’s compliance with certain legal obligations, such suggestions should not be deemed to constitute any form of legal advice. Customer acknowledges that any guidance offered by Cendyn is solely based on industry practices and on the basis of the individual consultant’s knowledge and experience, and does not involve conducting an audit, or confirming compliance with any laws or regulations. Customer shall be responsible for consulting with its attorney to ensure its website, booking engine, and any other use of the Services is in compliance with all relevant laws and regulations throughout the Term.
    3. Notices. Cendyn will send communications and notices in connection with this Agreement to Customer via electronic mail using the email addresses provided by Customer. Such email notices shall be deemed given and received on the day in which the email was sent. Customer agrees that all Agreements, notices, disclosures, and other communications Cendyn provides electronically shall satisfy any and all legal requirements that such communications would satisfy if it were in written paper form. The foregoing does not affect Customer’s non-waivable rights. Cendyn may also use Customer’s email address to send other messages, including information about the Services, Cendyn, its Affiliates and/or special offers. Customer may opt out of such promotional emails, but not Cendyn’s official notices pertaining to this Agreement or the Services, by changing account settings, using the “Unsubscribe” link in the message, or by sending an email to support@cendyn.com.All other 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.
    4. Severability. If any provision of this Agreement is prohibited by law or held to be invalid or unenforceable, the remaining provisions hereto shall not be affected, and this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof, and the unenforceable provision shall be automatically amended so as to best accomplish the objectives of such unenforceable provision within the limits of applicable law.
    5. Survival. In addition to the instances of survival specifically set forth in this Agreement, any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.
    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.
    7. Governing Law; Jurisdiction. This Agreement and all of the rights and obligations of the Parties hereto and all of the terms and conditions hereof shall be construed in accordance with and governed by and enforced under the laws of the State of Florida (without giving effect to its conflict of laws principles). Any legal action or proceeding relating to this Agreement shall be instituted exclusively in the state or federal courts located in Palm Beach County in the state of Florida. Each Party waives its right to a jury trial in any litigation arising from or related to this Agreement. In any action or proceeding brought by Cendyn to enforce any provision of this Agreement, Cendyn shall be entitled to recover the reasonable costs and expenses incurred by it in connection with that action or proceeding including, but not limited to, attorneys fees.
    8. Assignment. Cendyn may freely assign this Agreement to any of its Affiliates or 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. Customer may not assign this Agreement, by operation of law or otherwise, without Cendyn’s prior written consent, which shall not be unreasonably withheld. Any assignment in violation of this Section is void and unenforceable. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective permitted successors and permitted assigns.
    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 Cendyn and Customer any legal or equitable right, remedy, or claim in connection with or arising from Cendyn’s performance hereunder. Cendyn is acting as an independent contractor with respect to the Services provided to Customer. Employees of Cendyn performing Services for Customer will not be considered employees or agents of Customer. Cendyn is responsible for all employee tax and withholding and will comply with all applicable laws with respect to hiring and employment of such employees.
    10. Publicity. Customer consents to inclusion of its name and logo in client lists that may be published as part of Cendyn’s marketing and promotional efforts. Customer consents to Cendyn’s 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 Cendyn Software or Services, including any that showcase Customer properties and facilities, to the extent that such use does not reveal the Confidential Information of Customer. Cendyn may make general references to its relationship with Customer in certain marketing materials, such as press releases, white papers, testimonials, etc. Customer agrees to provide reasonable assistance to Cendyn in these efforts.
    11. Entire Agreement. This MSA (as updated by Cendyn from time to time) and all Order Forms, amendments, addendums, or statements of work 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 or contemporaneous agreements and representations, or discussions, whether oral or written.
    12. 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.