Software as a service agreement
The Terms and Conditions described herein constitute an agreement (this “Agreement”) made today between Globetrottingtips E-Media Publishing Networx Inc. (“GTT”, sometimes referred to as “Provider”, “we”, “our”, or “us”) and the “Customer”, sometimes referred to as “you”, “your”, or “user”).
The definitions and rules of interpretation in this clause apply in this agreement.
Business Day: any day that is not a Saturday, Sunday or public holiday in Ontario Canada.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified in this Agreement.
Customer Data: the data inputted by the Customer, Authorized Users, or the Provider on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Effective Date: the date of this agreement.
Normal Business Hours: 9:00 am to 6:00 pm Canada Eastern Standard Time, each Business Day.
Services: the subscription services provided by the Provider to the Customer under this agreement on the Travel Agency Tribes (“TAT”) platform and any other services as described in this Agreement.
Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
Words in the singular shall include the plural and vice versa.
A reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
GTT provides you with software as a service (SaaS) on the Travel Agency Tribes (“TAT”) platform to help host your sites, manage your content and generally provide you with a presence on the web. GTT receives payment as set out in Schedule B in providing services to you as described in Schedule A.
If contracted for, GTT provides a writing service for your sites. This writing service may include blog posts, newsletters, destination content, general copywriting or any other kind of requested content. GTT will write this content and post it on your sites according to your direction for location, placement, schedule, length, and format agreed to by you and GTT.
Content written by (or contracted by) GTT could be pre-approved by you before being posted. GTT shall post content within 10 business days of the agreed upon scheduled dates. GTT shall also ensure that posts of the proper length and content are written.
The content written by GTT shall not be used in any other setting besides your agreed upon sites and the TAT official blog. If used on the TAT official blog, the content will clearly indicate its origin as being on your sites, and will directly link back to one or more of your sites containing the original content.
If contracted for, GTT provides a design and layout service for your sites. If you request it, we shall provide graphical, and website designs to your specifications at an additional fee. The designs, logos, graphics and other produced content will be owned by you, even though they are being used on your sites on the TAT platform. You may re-use these elements outside of the TAT platform as well.
Software Development Service
If contracted for, we will develop special features or make changes to the TAT platform for your sites. This software, as developed, may be made available to other customers and entities utilizing the TAT platform no sooner than four (4) months (including the activation month) following activation of the features, unless previously agreed with you. At no time shall these requested and contracted for features, become exclusive to your sites. This software whether developed by GTT or by you or any agency you contract remains the property of GTT.
The exception to this rule is when you contract for software that is written to run ONLY on unique pages of your site using TAT’s dynamic “Pages” feature in the Admin panel of the service. In this case, you may request exclusivity of this software by paying additional fees as requested by GTT.
Software developed on the dynamic “Pages” feature in the Admin panel of your sites may be removed, amended or updated by GTT at any time for performance, efficiency or any other reason so that the integrity and performance of the overall platform shall be maintained.
We provide the TAT software as a hosted service only, to enable you to use and/or deploy the service to your Franchisees subscribed to TAT under this Agreement. We reserve the right to update or amend the software at any time unless otherwise described in any other separate document.
Termination and Other Terms
- Either party can terminate this agreement with cause (examples of causes - receivership, sale, non-fulfillment) at any time with six (6) months notice.
- Subject to subsection c) below, GTT or you may automatically terminate this Agreement if GTT or you fail to comply with the terms and conditions of this Agreement or if we become insolvent or if any bankruptcy proceedings are initiated against us.
In the event of a breach or alleged breach of any warranty, covenant, or other provision of this Agreement, the following notice and cure procedures shall apply:
- The party not in breach (“Non-breaching Party”) shall give the Party in breach (the “Breaching Party”) notice describing the breach and stating the time, as provided below, within which the Breach must be cured.
- If the breach is of an obligation to pay money, or a non-willful breach of an obligation of the Breaching Party relating to the Non-breaching Party’s intellectual property rights or relating to the Breaching Party’s compliance with applicable export control regulations, then the Breaching Party shall have 10 business days to cure the breach after written notice of such breach by the Non-breaching Party.
- If the breach is other than a breach of the kind described in this Section 4b), then the cure period will be 30 days after the effective date of notice of the breach from the Non-breaching Party.
GTT provides support service to assist you and your Franchisees in successfully using the software and service. Support is available via the following means:
- Within the Administration interface of each agency site
- By direct email to email@example.com
Request for customer support can only be considered official when received from you in either of the two options described above.
GTT shall acknowledge the customer support request by the end of the following Business Day, Canadian Eastern Standard Time (EST). This acknowledgement may be automated, provided by a staff member of GTT, or both. The actual work to fulfill the request may take an undetermined amount of time, depending on its nature. GTT shall notify you of the approximate amount of time required to fulfill the request. GTT shall provide you with procedural advice with respect to the implementation and use of the Service as requested by you from time to time, but you shall be responsible for the implementation and primary support for use of the Service, including, but not limited to:
- Assuring proper administrative set up, including sub-licensing paperwork where applicable, of the Service for end-users;
- Ensuring that only adequately trained and authorized employees and/or end-users have access to the Administration features of the Service and particularly the deployment of sites;
- Implementing sufficient procedures and safeguards with respect to non-disclosure of the terms and conditions of this Agreement without prior approval of either party; and
- Responding to all Franchisee communications, identifying and reporting “bugs” and delivery of enhancement requests approved by you.
Uptime and Service Availability
GTT will use commercially reasonable efforts to make the TAT service available with an annual uptime percentage of at least 99.9% during the Service Year. In the event GTT does not meet the annual uptime percentage commitment, you will be eligible to receive a service credit.
If the Annual Uptime Percentage for you drops below 99.9% for the Service Year, you are eligible to receive a service credit equal to 10% of your bill for the eligible credit period. You must file a claim within 30 days of the service outage with GTT for this credit to be applied.
Unless otherwise provided, your sole and exclusive remedy for any unavailability or non-performance of TAT or other failure by us to provide the Service is the receipt of a service credit in accordance with the terms of the agreement.
Uptime and Service Availability Exclusions
Many possible situations are completely beyond the control of GTT, and therefore are not in the scope of this agreement. These situations include:
- Scheduled network maintenance.
- Unscheduled external network event: Network, Internet, DNS or other outages by third parties that we use.
- Hardware maintenance: On occasions, the hardware in our servers may need maintenance or replacement. We will do everything possible to minimize downtime.
- Software maintenance: It is important to keep the software that runs our service up to date. Occasionally updates will be required to improve or secure the service. Generally you will receive little or no downtime, but we cannot guarantee a specific amount of time in all situations.
- Malicious Attacks: If a third party initiates a “Denial of Service” or other form of disabling attack against your website, our servers or a major portion of our network, GTT will do everything in our power to stop the attack, but cannot guarantee a resolution time.
Access to Customer Data
GTT provides a service to download all your content in XML or JSON format. If the service is terminated, then you are able to download this data for up to 90 days after termination.
If GTT believes that a security breach or compromise of data has occurred, GTT may have a third party auditor conduct a security audit of our systems and facilities and issue a report to be provided to you and GTT.
Payment and Renewal
Use of the service is by subscription. Unless you notify GTT 90 days before the end of any subscription period that you want to cancel or upgrade, your subscription will automatically renew and you authorize us to collect the annual, monthly, or other previously agreed subscription fee (as well as any taxes) using any credit card or other payment mechanism we have on record for you. You are aware that significant, unexpected changes in the commercial environment of GTT or GTT (for example, a dramatic change in hosting costs) will affect our pricing under a renewal agreement. If our pricing is anticipated to increase by more than 10 % due to a significant cost increase in our commercial environment, we will advise you of same and provide supporting documentation no later than nine (9) months prior to the renewal date of this Agreement. This is done in good faith to give both parties time to consider options and provide appropriate notifications.
You are required to obey all laws, rules, and regulations applicable to your use of the Service (for example, those governing travel services, consumer protections, unfair competition, antidiscrimination or false advertising).
GTT grants you a personal, limited, non-exclusive, revocable, non-transferable license, with the right to sublicense to your contracted Franchisees, to electronically access and use the Service solely for the purpose of hosting and managing your sites. The Service includes our website, any software, programs, documentation, tools, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you by GTT. You will be entitled to download updates to the Service, subject to any additional terms made known to you at that time, when GTT makes these updates available. Periodic updates and bug fixes will be provided at no additional cost to you.
Source Code Escrow
- Escrow Agreement. GTT agrees to work with Customer to move the TAT and related services to another system provider to ensure no disruption to Customer’s operation should any of the Release Conditions described in Section c) below occurs.
- License & Use. GTT hereby grants Customer a license to use, reproduce, and create derivative works from the source code (“Deposit Material”), provided Customer may not distribute or sublicense the Deposit Material or make any use of it whatsoever except for such internal use as is necessary to maintain and support the TAT and related services. Copies of the Deposit Material created or transferred pursuant to this Agreement are licensed, not sold, and Customer receives no title to or ownership of any copy or of the Deposit Material itself.
- Release Conditions. The term “Release Conditions,” as used in the Escrow Agreement, refers to any of the following: (i) any failure of Provider to function as a going concern or (ii) Provider is liquidated or dissolved.
- The Customer acknowledges and agrees that the Provider and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licenses in respect of the Services or the Documentation.
- The Provider confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
- For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
- You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place GTT under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, GTT does not waive any rights to use similar or related ideas previously known to GTT, or developed by its employees, or obtained from sources other than you.
The Service is licensed and not sold. We reserve all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. We own the title, copyright and other worldwide Intellectual Property Rights (as defined below) in the Service and all copies of the Service. This Agreement does not grant you any rights to our trademarks or service marks.
Responsibility of Your Content and Your Customers
GTT has not reviewed, and cannot review, all of the material, posted to your Website, and cannot therefore be responsible for that material’s content, use or effects. By operating the Website, GTT does not represent or imply that it endorses the material posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Website may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The Website may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. GTT disclaims any responsibility for any harm resulting from the use by visitors of the Website, or from any downloading by those visitors of content posted on your Website.
You are responsible for any and all commercial arrangements with preferred suppliers, partnerships and any entities (collectively, the “Preferred Entities”) with whom you have existing relationships or associations in the context of advertising and/or electronic commerce. You shall be entitled to reasonably refuse any content or advertising offered by GTT due to conflicts with the Preferred Entities.
Disclaimer of Warranties
The Service is provided “as is”. GTT and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither GTT nor its suppliers and licensors, makes any warranty that the Website will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, the Website at your own discretion and risk.
Limitation of Liability
In no event will GTT, or its suppliers or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to GTT under this agreement during the twelve (12) month period prior to the cause of action. GTT shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
You agree to indemnify and hold harmless GTT, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website, including but not limited to your violation of this Agreement.
GTT shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Provider or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; GTT may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
- This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
- Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this agreement.
All notices, requests, demands and other communications hereunder shall be in writing, either delivered by hand, by electronic mail or by recognized overnight courier.
Governing law and jurisdiction
- This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of Ontario, Canada.
- The parties irrevocably agree that the courts of Ontario, Canada have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
- Any dispute under this Agreement will be resolved in good faith by both parties. Failing that, resolution shall be obtained by commercial arbitration under rules of the Canadian Arbitration Association in lieu of legal proceedings in a federal or provincial court in Canada. The arbitrator will apply the laws of the province of Ontario in resolving any such dispute. The findings of the arbitrator will be final.
This Agreement constitutes the entire agreement between GTT and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of GTT. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.