THE BRAND MIX
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 The Brand Mix Services or Order Form Effective Date of the first Order Form or License Agreement executed between The Brand Mix Ltd., (“TBM”) 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 TBM, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND ACCEPTS THIS AGREEMENT. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, TBM’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 TBM under any Order Form submitted by Customer and accepted by TBM, 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 “TBM” 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 hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by TBM regarding future functionality or features.
- License Grant, Limitations & Restrictions
Subject to the terms and conditions of this Agreement, TBM hereby grants Customer a non-exclusive, non-transferable, assignable per the Assignment Section, worldwide limited license to use the Services provided hereunder 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 TBM and its licensors. TBM reserves the right to make changes, modifications, and enhancements to the Services from time to time.
- 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 TBM. 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 unauthorised access to the Services or its related systems or networks.
- Order Process
Customer shall order the Services by completing and signing an Order Form or License Agreement hereinafter “Order Form”. TBM 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 TBM invoices issued pursuant to an Order Form, then such purchase order number must be provided to TBM prior to the Effective Date of such Order Form. Customer’s execution and return of applicable Order Form to TBM without designating a purchase order number shall be deemed an acknowledgement that no purchase order number is required for payment of invoices hereunder. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that Customer may provide to TBM or use in connection with the procurement of Services (or any software) from TBM will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of TBM to object to such terms, provisions or conditions.
- 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 TBM immediately of any unauthorised use of any password or account or any other known or suspected breach of security with respect to the Services; (ii) report to TBM immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of Content, TBM Platform, Services or Deliverable that becomes known or suspected by Customer or Customer’s Users; and (iii) not impersonate another TBM user or provide false identity information to gain access to or use the Services. Customer shall indemnify and hold TBM, its licensors and each such party’s parent organisations, 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 TBM (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 TBM of all liability and does not adversely affect TBM’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.
- Account Information & Data
TBM does not own any Customer Data. Customer, not TBM, shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Customer Data, and TBM shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of Customer Data not caused by TBM. TBM’s use of Customer Data shall be limited to the purpose of providing the Services to the Customer and for TBM to meet its obligations hereunder. As part of the Services and during the Term, TBM makes available to Customer the ability to export a file of the Customer Data. Customer agrees and acknowledges that (i) TBM is not obligated to retain any Customer Data for longer than 30 days after termination, and (ii) TBM 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 TBM 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 TBM shall have no obligation to maintain or forward any Customer Data.
- 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. TBM 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. TBM 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 TBM from performing similar services for any third party.
- Intellectual Property Ownership
TBM alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the TBM 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 TBM Platform or the Intellectual Property Rights owned by TBM. The TBM name, the TBM logo, the TBM trademark, TBM related URLs, and the product names associated with the Services are trademarks of TBM or third parties, and no right or license is granted to use them.
- 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. TBM 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. TBM does not endorse any sites on the Internet that may be linked through the Services and to the extent any links are provided by TBM, these are provided to Customer only as a matter of convenience, and in no event shall TBM or its licensors be responsible for any content, products, or other materials on or available from such sites. Customer has real time independent rights to maintain product details, pricing and T&Cs governing all Customer offers and operation of the Services. Customer commits that such T&Cs are maintained in compliance with general and local law and such T&Cs protect the interests of Customer and Supplier and defend the Parties from liability beyond responsibility, at a maximum, to refund unused voucher value, outstanding value of stay or original payment made, whichever the lesser. Payment made by third party may be received directly or indirectly by Customer. Where TBM is involved in the processing of such payment through TBM Payment Gateway, TBM will send any funds collected regardless of issue, complaint or timing thereof to Customer and Customer will decide quantum of refund and issue same, if any, directly to third party.
- 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. TBM 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 TBM’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 TBM Management Console (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. TBM 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 TBM is deemed necessary, Customer agrees to pay all reasonable legal fees and costs incurred by TBM.
TBM shall retain the right to modify booking deposit terms and collection processes associated with the TBM Online Booking Engine (“OBE”) or Vouchers Booking Engine (“VBE”) to garner payment from OBE/VOBE activity to protect the financial interest of TBM. Such right to modify shall be invoked at TBM’s sole discretion but only when payment terms have been breached by ten (10) calendar days on a first breach, and by 5 calendar days on subsequent occurrences. TBM reserves the right to reduce payment terms from the default “payment terms are net thirty (30) days from the date of TBM’s invoice”, to twenty one (21) days and continue to apply such term, or reduce the term further, until such time as Customer re-establish a consistent payment reputation as decided at the sole discretion of TBM.
TBM’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 taxes based solely on TBM’s income. If TBM 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 TBM with a valid tax exemption certificate authorised by the appropriate taxing authority. For the avoidance of doubt, where TBM is rewarded through the application of Commission on the provision of products or services to an end user or guest, such Commission is charged based on a percentage of the entire value of the transaction without offset for any Customer costs, third party revenue share, third party services, levies or taxes contained therein.
If Customer believes Customer’s bill is incorrect, Customer must contact TBM 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 TBM with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorised 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, TBM reserves the right to terminate Customer’s access to the Services in addition to any other legal remedies.
Where Customer uses the TBM Credit Card Payment Gateway and deposits are taken and accrued on behalf of the Customer by TBM such deposits shall be offset against any outstanding invoice and represented in the Statement. Note that the use of the TBM Payment Gateway results in the transfer of Credit Card Merchant Fees from the Customer to TBM. TBM recovers these fees based on a sliding scale of charges, in the form of increased commission and applied to the Customer Invoice. Such 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.
During the period of use of the TBM PG, specifically as it applies to product or voucher sales, if at the sole discretion of TBM, it is deemed that significant funds arise to the credit of the Merchant, then TBM reserves the right to pay out such funds based on the recorded delivery of product to the purchaser or the encashment/redemption of the corresponding voucher(s) by the purchaser. It must be appreciated by the Merchant that when the TBM PG is used, TBM holds the financial responsibility for any Payment Card claim, chargeback or recovery of funds by the Client or Credit Card provider, regardless of cause or reason. TBM must protect itself against such a potential financial liability in compliance with its fiduciary duty. During the period of use of the TBM PG, specifically as it applies to product or voucher sales, if at the sole discretion of TBM, it is deemed that significant funds arise to the credit of the Merchant/Customer, then TBM reserves the right to pay out such funds based on the recorded delivery of product 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 TBM PG is used, TBM holds the financial responsibility for any Payment Card claim, chargeback or recovery of funds by the Client or Credit Card provider, regardless of cause or reason. TBM must protect itself again such a potential financial liability in compliance with its fiduciary duty. TBM will immediately assist any Customer to move to the use of their Merchant ID and own Payment Gateway with the associated transfer of financial responsibility to the Customer, but with with the benefit of direct receipt of sales funds by the Customer. TBM supports multiple payment gateway suppliers globally.
TBM 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 TBM and Customer.
In EU, Customer shall agree a standard EUR Direct Debit Agreement. See https://www.thebrandmix.com/SEPA_SDD
In the UK, Customer shall agree a GoCardless or a standard GBP Direct Debit Agreement. See https://www.thebrandmix.com/GoCardless
Beyond the above regions, we support multiple processes to collect payments such as PayPal, Stripe, Realex, etc. 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.
The above proven payment methods ensure the smooth collection of due invoices by TBM and minimises costs for all. Where Customer fails to implement the agreed payment method, an additional processing charge of 5% shall be added to the TBM Services invoice each month. Where payments are delayed beyond terms, TBM retains the right to apply a 2.5% charge per month on all outstanding funds in addition to all other remedies.
TBM 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.
- 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 TBM 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 TBM 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 prorated 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 thirty (30) days prior to the end of the then current Service Term.)
- Non-Payment and Suspension
In addition to any other rights granted to TBM herein, TBM 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 ninety (90) days. In addition, TBM 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 TBM 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 TBM 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.
- 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.
- Representation & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. TBM 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 TBM’s sole obligation will be for TBM to make reasonable commercial efforts to correct the non-conformity or, if TBM is unable to correct the non-conformity within ninety (90) days after 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.
- Disclaimer of Warranties
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN SECTION 13, TBM 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. TBM EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TBM 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 TBM TO ANY THIRD PARTY.
- Internet Delays
TBM’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TBM IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT CAUSED BY TBM.
- Limitation of Liability
IN NO EVENT SHALL TBM 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 CLAIMED OR NOTIFIED LIABILITY. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, BUSINESS, PROFITS, DATA, PROGRAMS, INFORMATION OR USE, INTERRUPTION 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 OR RELIANCE UPON THE SERVICES, OR FOR ANY CONTENT OBTAINED 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 TBM the right to use Customer’s name, mark, and logo on TBM’s website, in TBM marketing materials, and to identify Customer as an TBM Customer; provided, however, that any such use must be pre-approved, not be unreasonably withheld, in writing by Customer. Customer further agrees that “Powered by TBM” or similar “by TBM” 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 recognised 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 TBM may be made by emailing firstname.lastname@example.org and TBM 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 TBM’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 TBM 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 TBM 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 TBM 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 utilised, directly or indirectly, by either party for his, her or its own business purposes or for any other purpose except as authorised 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 TBM 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.
All Guest/Client transactions and details specific to a Customer and acquired because of this agreement shall be the property of Customer. Customer may share confidential financial and/or business information with TBM regarding its property or properties including internal and online reports, performance metrics, pricing and other business practices to enable the best optimisation of Property revenue through the OBE/VOBE on Customer’s website and optionally TBM websites. Where shared, TBM agrees to keep all such information confidential, limiting its usage to the purpose intended under this agreement, and to return or confirm destruction of all such information upon the termination of this agreement.
See https://www.thebrandmix.com/gdpr as a summary of the TBM 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 you store, why you store it, and to have what you store deleted (right to be forgotten). TBM will delete customer records upon written request by the Merchant (i.e., the party licensing TBM 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 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 TBM 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 TBM 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 TBM 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.
- 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 (meaning business is closed for more than 30 days and/or out of business, embargo, blockade, legal prohibition, governmental action, riot, insurrection, 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 (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 TBM or the Services while using the Services;
“Order Effective Date” means the date of first non-evaluation use of TBM 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 authorised 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 TBM Services shall constitute an Order Form and such default values as define by TBM, namely an initial term of twelve (12) months and the terms of this MSA shall apply until such Order Form is agreed between Parties;
“TBM Platform” means all of TBM’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 TBM in providing the Services;
“Service(s)” means TBM’s Online Booking Engine (“OBE”), Voucher [Online] Booking Engine (“V[O]BE”), Inventory Management Consoles (“IMC”) and brand advocate platform identified during the ordering process, including TBM’s technology, product catalogue, applications gateway modules as described in the relevant product data sheet(s), developed, operated, and maintained by TBM and accessible via https://www.thebrandmix.com/ or other TBM designated web site or IP address, or ancillary online or offline products and services provided or licensed to Customer by TBM, to which Customer is being granted access under this Agreement, including the TBM 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 authorised to use the Services and have been supplied user identifications and passwords by Customer (or by TBM 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 TBM (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.