1.1. "Agreement" means these software licence terms including all annexures hereto, each of which is an integral part of these terms and shall be interpreted and construed accordingly;
1.2. "Confidential Information" means any information or data which by its nature or content is identifiable as confidential and/or proprietary to a Party and/or any third party, or which is provided or disclosed in confidence, and which such Party or any person acting on its behalf may disclose or provide to it or which may come to the knowledge of such Party by whatsoever means, including all information relating to a Party's current and existing strategic objectives, its business activities, business relationships, technical, scientific, commercial, financial and market information and trade secrets, data concerning its architectural information, demonstrations, processes and machinery, all agreements to which it or its clients is/are a party, information relating to the Software and information relating to its clients and facilities, but specifically excluding information or data which —
1.2.1. is lawfully in the public domain at the time of disclosure thereof; or
188.8.131.52. subsequently becomes lawfully part of the public domain by publication or otherwise; or
184.108.40.206. becomes available from a source other than one of the Parties which is lawfully entitled without any restriction on disclosure to disclose such Confidential Information; or
220.127.116.11. is disclosed pursuant to a requirement or request by operation of law, regulation or court order;
1.3. "Customer Database" means a database, including information that relates to Customer's hotel availability, inventory, rates, and policies, and that is stored in and processed by Sabre Hospitality Solution through the System;
1.4. "Data" means any data, including personal information and/or personal data (as such terms are defined in any applicable data protection laws) supplied, stored, collected, collated, accessed, retained or processed using the Software, irrespective of the media or form;
1.5. “Effective Date” means the date that the Customer signs acceptance of the quote for services as provided to it by the Supplier;
1.6. “Go-Live Date” refers to the Business Day following the date on which the Supplier advises the Customer that it is able to process payments of confirmed reservations using the Solution
1.7. "Intellectual Property" means any: know-how (not in the public domain); invention (whether or not patented); design, trade mark (whether or not registered), or any material in which copyright subsists (whether or not registered) and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property, which specifically includes all copyright, design rights and any other proprietary rights in and to any business plans and proposals, business processes and functional and technical specifications and any related material;
1.8. “Software” means the iVeri Payment Gateway, a multi-channel solution, provided by iVeri Payment Technologies that offers merchants a number of options for payment acceptance and is managed on a single gateway solution;
1.9. "Losses" means all losses, liabilities, costs, expenses, fines, penalties, damage, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties);
1.10. “Order” means a quote duly signed by the Customer and counter signed by the Supplier;
1.11. "Parties" means the Parties to this Agreement,
1.12. “Sabre Hospitality Solutions” means an online reservation solution provider;
1.13. “Sabre SynXis” means the cloud-based booking engine system that is capable of being integrated into a hospitality service provider’s website;
1.14. “Solution” means the Sabre SynXis booking engine as integrated into the iVeri Payment Gateway;
1.15. “Support Services” means the support services in respect of the Solution, which include the provision and installation of Upgrades and problem resolution;
1.16. "System" means the production data processing facilities of the SynXis Central Reservation System (CRS) which has electronic facilities able to provide, store, communicate, distribute, process and document such information as is from time to time stored in its database;
1.17. "Upgrades" means the changes or improvements to the Software or any component of the Software that relates to or affects the operating performance of the Software or an aspect of such Software, but does not change the basic operation or functioning of the Software;
2.1. The Customer desires access to the Solution in order to enable online payment acceptance of bookings made using the Sabre SynXis booking engine.
2.2. The Supplier and/or its licensors are the owners of the Intellectual Property rights vesting in the Software. The Supplier has the right to provide a license for the use of such Software to the Customer and other ancillary services in respect of such Software to the Customer, subject to the terms and conditions set out in these terms.
2.3. The Customer wishes to acquire a license to use the Software and other ancillary services in respect of such Software from the Supplier.
3. SCOPE OF LICENCE
3.1. With effect from the Effective Date and subject to the terms and conditions herein contained read together with the Order, the Supplier grants to the Customer a non-transferable, non-exclusive, royalty free licence to use the Software licensed by the Customer under this Agreement for the Customer's internal business purposes only.
4. COMMENCEMENT AND DURATION
4.1. This Agreement shall commence upon the Effective Date and continue unless terminated in accordance with the provisions contained in clause 13 (Termination).
5. CUSTOMER SUPPORT AND MAINTENANCE.
5.1. The Customer shall receive Support Services for the Solution for the duration of this Agreement.
6. PAYMENTS IN RESPECT OF APPROVED TRANSACTIONS
6.1. The Parties agree that the Supplier is under no circumstances liable for payment of any amounts due to the Customer in respect of successful booking transactions.
7. FEES AND PAYMENT
7.1. The Supplier shall be entitled to receive a Transaction Fee in respect of all approved transactions.
7.2. The Transaction Fee shall be calculated and be due and payable by the Customer to the Supplier in accordance with, and subject to, the provisions of the fees and charges as agreed in the relevant Order.
7.3. Fees and all other charges shall be payable by debit order as from the Go Live Date onwards.
7.4. The Supplier reserves the right to increase the fees in the event that regulatory requirements change, Sabre Hospitality Solutions changes their fees or integration requirements, overhead costs and/or input costs increase and in circumstances where it is no longer economically viable for the Supplier to continue to provide the Solution at the agreed fees, subject to the Supplier providing Customer with 30 (thirty days) notice of such increases.
7.5. Any amount payable by the Customer to the Supplier may bear interest at a rate equal to that of 15% (fifteen percent) per annum calculated from the payment date until the date of actual payment, both days inclusive.
7.6. Should the Customer be in breach of this Agreement or withhold any amounts due under this Agreement, then the obligation of the Supplier to supply any Software will, at the discretion of the Supplier, be suspended until such time that such payment is made in full or until the breach is rectified. Where the breach has not been rectified within the time period set forth in clause 12 (Breach) and/or the payment has not been effected within a further period of 14 (fourteen) days, the Supplier shall be entitled, at its option, to terminate this Agreement on notice to the Customer.
7.7. In the event of any good faith dispute with regard to a portion of an invoice, the undisputed portion shall be paid as set out above. Upon resolution of the disputed portion, any amounts owed to the Supplier shall be paid with interest at the rate set forth above accruing from the date such amounts were originally due. Should the Customer withhold any amounts that it disputes in good faith for longer than 30 (thirty) days, then the Supplier shall be entitled to withhold services until such time that such dispute is resolved.
8. INTELLECTUAL PROPERTY
8.1. The Supplier retains all right, title and interest in and to its Intellectual Property. In particular, the Supplier and/or its affiliated third parties or licensors retains all right, title and interest in all Intellectual Property rights in and to work products, deliverables, documentation, reports, designs, formulae, methodologies, Solution, proposals, specifications, feasibility reports and systems, whether used to provide or as are developed or created as part of or pursuant to the performance of any services (including Support Services) hereunder.
8.2. The Customer retains all right, title and interest in and to the Customer's Intellectual Property existing prior to the Signature Date.
8.3. The Customer shall not acquire any rights in the Supplier's Intellectual Property.
9. DATA PROTECTION AND SECURITY
9.1. The Customer shall grant to the Supplier authority to access its Customer Database;
9.2. The Parties specifically record that all Data processed using the Software, shall be treated with due regard to the confidential and sensitive nature of such Data.
9.3. The Parties warrant in favour of each other that they shall at all times strictly comply with all applicable laws.
10. LIMITATION OF LIABILITY
10.1. The Supplier’s total liability and the Customer’s sole and exclusive remedy for any claim of any type whatsoever, arising hereunder, shall be limited to proven direct damages (other than any direct damages relating to loss of data, business, goodwill, anticipated savings, profits, revenue or use) caused by the Supplier’s sole negligence or wilful misconduct in an amount not to exceed the aggregate value of payments made by the Customer in respect of Fees paid in the 1 (one) month preceding the incident giving rise to such damages.
10.2. The Customer hereby indemnifies and holds the Supplier its affiliates, public officers, directors, employees, consultants, agents and licensors harmless against loss, damages, claims, liability and costs, as a result of, the following:
10.2.1. any act, omission or failure of any process, network, service or third party that the Supplier does not have direct control over;
10.2.2. any direct actions or inactions of the Customer that result in the Supplier being unable to render services as contained in thes terms;
10.3. The Supplier shall not under any circumstances be liable for any force majeure events, special, indirect or consequential damages, including but not limited to loss of sale or business, loss of profits or damage to goodwill, which may be incurred by the Customer.
11. CONFIDENTIALITY .
11.1. A Party which receives Confidential Information ("the Receiving Party") from the other Party ("the Disclosing Party") shall treat and hold it as confidential.
11.2. The Receiving Party undertakes and agrees that in order to protect the proprietary interests of the Disclosing Party in and to its Confidential Information:
11.2.1. the Receiving Party will not at any time, whether during the currency of this Agreement or at any time thereafter, either use any Confidential Information of the Disclosing Party or directly or indirectly divulge or disclose any Confidential Information of the Disclosing Party to third parties;
11.2.2. all written instructions, drawings, notes, memoranda and records of whatever nature relating to the Confidential Information of the Disclosing Party which have or will come into the possession of the Receiving Party, will be and will at all times remain the sole and absolute property of the Disclosing Party.
11.3. Upon termination, cancellation or expiry of this Agreement the Receiving Party will deliver to the Disclosing Party, or at the Disclosing Party's option, destroy all originals and copies of Confidential Information in its possession.
If either party materially breaches this Agreement, the other party shall have the right to terminate this Agreement (and all licenses) upon 14 (fourteen) days written notice of any such breach, unless such breach is rectified within such notice period.
13.1. Either Party may at any time and without cause terminate this Agreement by giving at least 30 (thirty) days written notice of termination to the other Party.
13.2. Should the Customer terminate this Agreement for any reason whatsoever the Customer agrees that it shall forfeit all Fees already paid to the Supplier for the services already provided under the Agreement.
13.3. Termination of this Agreement shall be without prejudice to either Party’s rights or remedies accruing prior to the date of termination.
13.4. If (i) the Customer effects or attempts to effect a compromise or composition with their creditors; (ii) the Customer is provisionally or finally liquidated or placed in judicial management, whether provisionally or finally; or the Customer is placed under business rescue or similar administration, whether voluntarily or upon application by a third party (or in respect of any of the foregoing, any analogous arrangements under any law to which the Customer is subject) (iii) the Customer ceases to carry on its normal line of business or defaults in the payment of its liabilities generally, or commit any act or omission which would, in the case of an individual, be an act of insolvency; or (iv) the Customer fails to adhere to any legal requirement, then the Supplier shall be entitled, but not obliged, to terminate this Agreement on written notice to the Customer, in which event such termination shall be without any liability and without prejudice to any claims which the Supplier may have for damages.
13.5. In the event that the Supplier is for any reason no longer able to provide the licence to the Customer, it shall be entitled to terminate this Agreement by giving the Customer notice in writing.
14. POST- TERMINATION PROVISIONS
14.1. Upon the termination of this Agreement, the Customer shall:
14.1.1. pay promptly to the Supplier all sums owing in terms of this Agreement which amounts shall become immediately due and payable;
14.1.2. immediately cease to utilise the Software in any manner whatsoever; and
14.1.3. immediately cease to make any reference to the Solution in any manner whatsoever, in any advertisement, marketing material and the like, regardless of form or media.
15.1. Neither the Agreement nor the licenses granted hereunder are assignable or transferable by Customer without the prior written consent of the Supplier, any attempt to do so shall be void. The Supplier may assign this Agreement in whole or in part.
15.2. Any notice, report, approval or consent required or permitted hereunder shall be in writing.
15.3. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise.
15.4. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
15.5. This Agreement shall be subject to the laws of the Republic of South Africa.
15.6. Any waivers or amendments shall be effective only if made in writing.
15.7. In the event of a conflict between this Agreement and the terms of an Order Form or price quotation, the terms of this Agreement shall govern.