GENERAL TERMS AND CONDITIONS

  1. General

The provision of KDS’ Services is subject to the unconditional acceptance of these General Terms and Conditions, which is materialised by the Subscriber’s click on the General Terms and Conditions’ tick box in the registration and subscription process.

By subscribing to KDS’ Neo offer, you (“the Subscriber“) represent and warrant that you are duly authorised to enter into this Agreement. KDS reserves the right to modify these General Terms and Conditions, at any time and at KDS’ sole discretion. Any modification of the General Terms and Conditions will be notified to you. Your continued use of KDS’ services will be considered as your acceptance of the new General Terms and Conditions. If you do not agree to modifications of the General Terms and Conditions, you must stop using KDS’ Service.

Any term having its first letter in capital is either directly defined in the relevant article of these General Terms and Conditions, or in Article 33 Definitions.

  1. Purpose

2.1 KDS specialises in providing Services to the End Users through its on-demand travel and expense online solutions.

The Subscriber acknowledges that (i) it was provided with all information related to the Services and the Software by KDS, and, consequently, (ii) KDS has fulfilled its obligation of advice and information.

Subject to the terms and conditions set forth in this Agreement, KDS grants to the End User a non-exclusive, non-transferable, revocable right to use the Software as a Service (SaaS) within the Territory, for the duration of the Agreement, as defined below.

2.2 For the purpose of this agreement, the Software contains KDS’ Manage, Spend & Expense software product.

  1. Obligations of the Parties

3.1.     Obligations of the End User

3.1.1    The Subscriber shall register in the Software the contact information of a Technical Contact/Site Administrator amongst its staff who will act as the point of contact between the End Users and KDS for technical assistance purposes, as detailed in Clause 6 of this Agreement.

It is the Subscriber’s sole responsibility to ensure that the Technical Contact has the skills and training needed to manage accounts and access rights, provide first level assistance to the Authorised Users and be the main user entitled to contact KDS’ support service as detailed in Clause 6. KDS shall consider that the Technical Contact is competent to be the End Users’ interface with the KDS support.

3.1.2     The End User will be solely responsible for administration and maintenance of user names and passwords used in connection with the Software. In relation to its Authorised Users, the End User undertakes to use reasonable efforts to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use of which it is aware, it shall use all reasonable efforts to notify KDS, without undue delay.

3.1.3     The End User undertakes to comply with the following requirements regarding PCI-DSS:

  • The End User agrees not to fill in / populate CREDIT CARD numbers (PAN – Primary Account Number) in any other fields than destined for that reason in the Software (typical and non-exhaustive situations to avoid are: usage of custom fields, free flow fields etc.…);
  • The End User agrees not to send bulk data – in specific that contains CREDIT CARD numbers (PAN), other than through agreed and defined VPN, Https or SFTP connectivity;
  • The End User agrees that they will comply to the PCI-DSS requirements on the client-end, including, without limitation, protecting the cardholder data (preventing from storing Authorised Users’ financial information, ensuring through training or by any other relevant mean that sensitive financial data is inserted by Authorised Users in encrypted fields, etc.);
  • The End User Agrees not to share or disclose their credentials (user Id, Password).

The End User understands and acknowledges that any non-compliance with the above terms will fall under its sole responsibility. KDS shall not, in any case, be liable, and consequently the End User shall indemnify KDS, in the event where the End User would fail to comply with the obligations set forth hereunder in Clause 3.1.3.

3.1.4     The Software is solely operational on current and usual web-browsers (including Internet Explorer, Safari, Mozilla Firefox, Chrome). The End User is solely responsible for using a usual and updated web-browser, and KDS cannot be liable for the End User’s failure to access the Services due to the use of an outdated web-browser.

3.2        Obligations of KDS

KDS shall grant to the End User the right to, and allows the Authorised Users to, use and access the Services and the Documentation for the duration of the Agreement, but solely for the End User’s business operations.

  1. Implementation of the Services

Upon execution of the Agreement, the Subscriber will perform itself the configuration of its Software account. To this end, the Subscriber will register the relevant information and data in order for the Software to be operational. The Subscriber is entirely responsible for the proper configuration of its account.

  1. Access and Security

5.1        KDS provides access to the Software and processes the Authorised Users’ data via a secure online platform. The detail of the security measures implemented by KDS is included in the KDS Security Policy.

5.2        The End User agrees not to make the Software available in any manner to any third party.

5.3        The End User shall not use the Software to: (a) transmit any files, data or other material that actually or potentially infringes the intellectual property rights of any person; (b) create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication; (c) interfere, disrupt or attempt to gain unauthorised access to any computer system, server, network or account for which it does not have authorization to access or at a level exceeding its authorization; or (d) disseminate or transmit any virus, Trojan horse or other malicious, harmful or disabling data, work, code or program. The End User will not provide KDS with any data that may infringe or misappropriate the copyright, trademark, or proprietary or intellectual property right of any person.

The End User hereby undertakes to hold KDS harmless of any liability arising from a failure to comply with the obligations set forth in this Clause.

  1. Maintenance and upgrade

6.1        For technical assistance, the End User should first refer to KDS’ online FAQ. If the End User still requires assistance after consulting the FAQ, the End User’s Technical Contact may contact KDS’ support service at the following telephone number [                    ] (subject to the charges set out in the Financial conditions – Exhibit 1).

Additional maintenance services which may be required by the End User, as the case may be, will be charged at the rates specified by KDS in a fee quote provided before the commencement of such additional maintenance services.

6.2        KDS agrees to offer the opportunity to the End User to access new features of the Software as they are made generally available through direct sales by KDS to its direct customers.

These new features may be Updates or Upgrades:

Update” means any modification or addition when made or added to the Software, that corrects Errors or provides minor functionality enhancements, but does not change its overall utility, functional capability, or application. Updates shall include all bug fixes, patches and maintenance releases and error corrections of the Software. KDS shall make the Updates to the Software at its own discretion with no modification of the agreed Subscription Fee.

Upgrade“ or Software evolution(s): means an addition of one or more functions or modifications to the most recent version of the Software with the objective to offer new features or functionalities to End Users. In no event shall the End User be forced to use any Upgraded Service.

In each case, KDS may decide if this new Upgrade is included in the Subscription Fees between the Subscriber and KDS or if these are payable options.

  1. Term and termination

7.1    The Parties agree that the Agreement shall enter into force upon completion of the online registration by the Subscriber, by confirming the order (the “Effective Date”). The Agreement has no fixed term, and shall be in force as long as either Party do not terminate the Agreement further to Clause 7.2.

7.2    KDS may terminate the Agreement, at any time and without having to justify of any cause, by giving the other Party thirty (30) days’ notice, pursuant to the terms of Clause 31.

The Subscriber may terminate the Agreement at any time and without having to justify of any cause, by completing the unsubscribe process in the Software. The Agreement will be effectively terminated on the last day of the calendar month following the month during which the Subscriber completed the unsubscribe process.

7.3    Upon the effective termination date, End Users’ Data will be deleted by KDS. The End Users shall be responsible for retrieving their Data from the Software, in accordance with Clause 14, before such data is deleted.

  1. Access to third party systems

8.1   The Parties acknowledge that the contractual relationship between the End User and/or its travel agency and the various GDSs and CRSs is the exclusive responsibility of the End User. The End User or its travel agency shall ensure KDS emulation/bridging access to every GDS office ID or pseudo city code in which passenger name records or user profiles will be built or processed.

8.2   Optional KDS Connect content may be available to the End User as part of the Services. KDS undertakes to make its best efforts to ensure the proper and continuous functioning of KDS Connect and to correct any malfunction that may be notified by the End User.

KDS cannot guarantee that the KDS Connect will give access at all times to all integrated third party content and services nor can KDS guarantee the performance of this optional KDS content, as it depends upon the performance of the third party services.

The End User acknowledges that KDS is not responsible for the content of third party services, including, but not limited to, the accuracy of the policies or practices of such third-party content and that KDS does not make any representations regarding the content or accuracy of information (including but not limited to fares) provided.

KDS, in conjunction with providing the KDS Connect content may, as directed by the Authorised User, disclose to the third party supplier certain booking data and Confidential Information (as defined in Clause 15 (Confidentiality) below), including, but not limited to, Authorised User’s names, Authorised User’s profile information including credit card data.

The End User will be solely responsible for: (a) all consequences related to ticket changes and cancellations for bookings made through any third party service by an End User, including, but not limited to, lost tickets, fraud, obtaining possession of the applicable ticket (paper ticket or electronic ticket) from the relevant supplier or non-fulfilment by the relevant supplier and (b) certain Confidential Information, being the Authorised User’s names, the Authorised User’s profile information including credit card data and the security of such Confidential Information when using any third party services.

  1. Fees and Invoicing

9.1    The Subscriber agrees to pay the fees detailed in the Financial Conditions (Exhibit 1) corresponding to the category of offer chosen by the Subscriber during the registration process or as modified at any time after, between “Neo A” or “Neo B” (the “Subscription Fees“). All prices therein given are set in pound sterling (GBP) excluding Value Added Tax.

The Subscription Fees shall not include fees related to third parties’ services which are freely defined by such third parties. On some occasions, KDS may be invoicing third party booking fees on behalf of such third parties, which shall be reflected separately on the invoice sent by KDS.

KDS reserves the right to modify at any time the Subscription Fees charged to the Subscriber set out in the Financial Conditions (Exhibit 1), subject to a notice 30 days prior to the increase of the Subscription Fees.

9.2    The Subscriber will be charged on the first day of each month, directly through the method of payment chosen, according to its number of Active Users in the preceding month.

During a given month, is considered an “Active User” any Authorised User that either

–       has logged into his account, and / or

–       has had a new expense claim created onto the Software.

If an Authorised User creates a new expense claim on behalf of another Authorised User, then two Active Users will be billed – one for the Authorised User that logged in and one for the Authorised User for which a new expense claim was created.

For each month where the Subscriber had at least one Active User, KDS will provide the Subscriber, on the first working day of the next month, with an electronic invoice detailing:

–       the number of Active Users,

–       the action for which each listed Active User was considered an Active User (logging in or having an expense claim created)

–       the earliest date at which each Active User either logged in or had an expense claim created during this given month.

9.3      In the event any new governmental regulation or law, any new industry regulation or other cause beyond the control of KDS, which shall impact the general economic balance of the Agreement, the Parties shall negotiate an adjustment to the fees and charges set forth herein which shall apply prospectively to the End User. Until the Parties shall agree upon such prospective fees, the fees specified herein shall remain in effect.

9.4    In the event of failure of payment, KDS will be entitled to suspend the End User’s access to the Software. KDS may suspend the access to the Software until the End User has paid all sums still owed under the contract. Should payment not be forthcoming 60 days after the first failure of payment, the Agreement will be automatically terminated.

In the event of late payment, KDS may invoice, as from the date the End User fails to respect the invoice due date, for default interest at the rate of twice the 12-month deposit EURIBOR rate, as from the due date of payment until full payment is made, which interest shall accrue and be calculated on a daily basis.

In addition, the End User shall compensate KDS for the costs associated with payment recovery. In the event payment is delayed by more than thirty (30) days, KDS may suspend access to the Software, without prejudice to the late payment penalties that it may claim.

9.5    All sums stated under the Agreement are exclusive of any applicable value added, excise, sales, use, withholding or consumption taxes, customs duties or other governmental charges. The Subscriber shall pay all taxes including, but not limited to, value added, excise, sales, use, withholding or consumption taxes, customs duties, other governmental charges or other taxes as applicable.

9.6   Optional third party services

The Subscriber will have the option to activate and use KDS Connect optional third-party content in conjunction with the End User’s use of applicable KDS services for additional fees based on actual usage of such third-party services. The third party may charge the Subscriber directly for the usage of its services or in some instances KDS will invoice the Subscriber separately for such third parties’ fees. An indicative list of KDS Connect optional third-party content services, corresponding fees and related terms are incorporated in the Financial Conditions (Exhibit 1). The fees of these optional third-party services are set directly by such third parties, without any intervention of KDS, and are subject to change from time to time. Any such change shall be notified by KDS to the Subscriber.

  1. Warranties, Representations & Disclaimer

 

10.1      Subject to the terms and conditions set forth in this Agreement and the Exhibits hereto, KDS warrants that, during the term of this Agreement, the Software and Services to be provided by KDS hereunder will be provided and/or performed (a) in a professional manner consistent with generally accepted industry standards; and (b) substantially in accordance with the technical manuals and user documentation relating to the operation and use of the Software that are provided by KDS to End User under this Agreement, as reasonably updated by KDS from time to time, and beyond such warranties the Parties acknowledge that KDS otherwise provides the Software “as is”. Consequently, with the help of KDS professional advice, the End User shall be solely responsible for making sure that the Software matches its own needs and requirements.

10.2      KDS undertakes that the Software will perform in accordance with the technical specifications set out in the Documentation.

10.3      KDS only offers to End Users the warranties that are mandatory pursuant to the applicable law, and that the applicable law do not enable to disclaim. As such, KDS hereby disclaims to the End User all warranties to the maximum extent permitted by the applicable law.

10.4      Each End User shall, and hereby agrees to indemnify and hold harmless KDS and each of its officers, directors, employees and agents against and in respect of any loss, debt, liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or unliquidated, including without limitation all reasonable costs and expenses incurred (legal, accounting or otherwise) (collectively, “Damages”) arising out of or resulting from the non-compliance of the End User with its obligations as defined in Clauses 3.1.3, 5 and 8 of this Agreement.

  1. Liability

11.1      Each Party’s liability to the other Party resulting from any and all causes under the Agreement other than as specified in Clauses 10.4 above and 11.6 below, shall be limited to proven direct damages and shall not exceed, for any given contract year, an aggregate amount equal to half of the Subscription Fees paid to KDS during the last 12 months preceding the occurrence of the damage.

11.2      Except for wilful misconduct, neither Party shall be liable to the other Party for any indirect, incidental, consequential, reliance, or special damages suffered by such other Party (including without limitation damages for harm to business, lost revenues, lost savings or lost profits suffered by such other Party), regardless of the form of actions, whether in contract, warranty, strict liability, or torts, including without limitation negligence of any kind whether active or passive, and regardless of whether the Parties knew of the possibility that such damages could result.

11.3      Nothing in this Agreement shall exclude or restrict either party’s liability for death or personal injury resulting from that party’s negligence.

11.4      The End User acknowledges that the Services may enable or assist it to access content of third parties, potentially via third party websites and that it does so solely at its own risk. KDS makes no representation or commitment and shall have no liability or obligation whatsoever in relation to such content, except where End User suffers damages due to reasons solely attributable to KDS. Any agreement entered into and any expense claim completed via any third party website is between the End User and the relevant third party, not KDS.

Consequently, the End User shall remain liable for any requests and/or orders made through the Software and the use it may make of the Software when it receives the responses from a third party vendor. KDS shall not be held liable for any errors caused by the End User. KDS shall in no event either be liable for acts or omissions of vendors that the End User locates or retains by means of the Software, such as errors, breakdowns and interruptions of the GDS computer systems or the communication lines, and other difficulties caused by third parties’ products and/or services, such as for example, transport providers or car rental companies.

If a passenger uses a confirmed ticket for air transportation issued pursuant to a reservation made by the End User by means of the Software and is refused carriage because of an oversale of seats or the lack of record of such reservation, the sole remedy of the End User shall be as set forth in the tariff of the refusing carrier or applicable terms and conditions of the carrier’s contract of carriage and/or in the applicable law, including without limitation in any applicable European directive.

11.5      Each party hereby releases the other party and such other party’s subsidiaries and affiliates, and their respective officers, directors, employees and agents from any such claim. Nothing contained in this Clause 11 shall limit the parties indemnification obligations under this Agreement. Under this Agreement, any action brought by a third party shall be considered as an indirect damage which cannot, consequently, result in any compensation, except as stated in Clauses 10.4 and 11.6.

11.6      Each party (the “Indemnifying Party“) shall, and hereby agrees to, defend at the other’s request, indemnify and hold harmless the other Party and each of its officers, directors, employees and agents (the “Indemnified Party“) against and in respect of any Damages arising out of, resulting from or based upon any pending or threatened claim, action, proceeding or suit by any third party (a “Claim”): (i) based upon injuries or damage to any person or property or the environment arising out of or in connection with the Agreement, that are the result of such Indemnifying Party’s breach of Applicable Law, or the breach of Applicable Law by its officers, directors, employees, agents and subcontractors, (ii) for actual or alleged infringement of any IPR, to the extent that such claim or action arises from the Indemnifying Party’s use or performance of the Software, or (iii) any violation of the undertakings under Clause 14.

11.7      Whenever a Claim shall arise for indemnification under the Agreement, the relevant Indemnified Party, as appropriate, shall promptly notify the Indemnifying Party and request the Indemnifying Party to defend the same.

Failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any liability that the Indemnifying Party might have, except to the extent that such failure prejudices the Indemnifying Party’s ability to defend such Claim.

The Indemnifying Party shall have the right to defend against such liability or assertion in which event the Indemnifying Party shall give written notice to the Indemnified Party of its acceptance of the defense of such Claim and the identity of counsel selected by the Indemnifying Party.

Except as set forth below, such notice to the relevant Indemnified Party shall give the Indemnifying Party full authority to defend, adjust, compromise or settle such Claim with respect to which such notice shall have been given.

With respect to any defense accepted by the Indemnifying Party, the Indemnified Party shall be entitled to participate with the Indemnifying Party in such defense, and also shall be entitled to employ separate counsel for such defense at such Indemnified Party’s expense.

In the event the Indemnifying Party does not accept the defense of such Claim as provided above, the Indemnified Party shall have the right to employ counsel for such defense at the expense of the Indemnifying Party.

Each Party agrees to cooperate with the other Party in the defense of any such Claim and the relevant records of each Party shall be available to the other Party with respect to any such defense.

  1. Insurance

Each Party shall carry and maintain in force at all times during the Agreement comprehensive general liability, employee’s liability and other insurance, in each case in amounts and subject to terms that are customary for companies of its size in its industry and to the extent commercially reasonably available in its jurisdiction.

  1. Force Majeure

13.1      If any performance by any of the Parties shall be prevented, hindered or delayed by reason of an event of force majeure, the affected Party shall be excused from performance to the extent that its performance is prevented, hindered or delayed.

As used in this Clause 13, “event of force majeure” shall mean any event beyond the affected Party’s reasonable control. These events may include but are not limited to acts of God, inclement or severe weather, industrial disputes (other than those between the affected Party and its own employees), strike, failure or interruption of power supply, lightning or fire, acts of local or central government or other competent authorities, war, civil disorder, acts of terrorism, sabotage, acts or omissions of other telecommunications operators or events beyond the reasonable control of its suppliers.

In particular, in this Clause 13, “event of force majeure”, shall include any event resulting from software piracy (e.g. virtual or physical).

  1. Data protection

In this Clause 14, the following expressions shall have the following meaning:

  • Personal Data” shall mean any information defined as such in the Applicable Data Protection Law.
  • Applicable Data Protection Law” shall mean the European Data Protection Directive n° 95/46/EC.

Personal Data comes within the provisions of the Applicable Data Protection Law. The Parties acknowledge that in executing the Agreement, they may collect and/or process Personal Data, including without limitation disclosing it to third parties. In the event the End User has its main office outside the European Economic Area and/or has affiliates outside the European Economic Area, the Parties acknowledge that the collected Personal Data may be transferred outside the European Economic Area.

The Parties acknowledge that in executing the Agreement, they will record and use Personal Data, whether it relates to employees, contracted staff or individuals with whom they come into contact throughout the execution of the Agreement.

The Parties therefore need to be able to demonstrate that they are handling such Personal Data in accordance with the principles defined by the Applicable Data Protection Law, and be aware that the individuals’ rights with respect to its Personal Data are respected, within the terms of the Applicable Data Protection Law.

The Applicable Data Protection Law requires that Personal Data must be:

  • fairly and lawfully collected and/or processed;
  • processed solely for specific and limited purposes and not in any manner incompatible with those purposes;
  • adequate, relevant and not excessive;
  • accurate;
  • not kept for longer than is necessary;
  • processed in line with the data subject’s rights;
  • secure;
  • not transferred to countries without adequate protection.

In particular, the Parties acknowledge that, in relation to the Data, the End User is the sole data controller and shall be in that respect solely responsible for (i) ensuring that the Data is collected at all times in compliance with the local laws applicable where the Data will be processed under this Agreement and (ii) carrying out all appropriate declarations or notifications to the competent data protection regulatory authorities. The End User hereby undertakes to indemnify and hold harmless KDS against any third party (including any administrative authorities) claims or actions in relation to the processing of Data under this Agreement.

The Parties shall have in place adequate technical and organizational security measures so that the confidentiality of this processing complies with the Applicable Data Protection Law. In this respect, KDS processes the Personal Data in compliance with the KDS Security Policy.

The Parties undertake not to transfer Personal Data or cause Personal Data to be transferred to a country outside the European Economic Area unless (i) such country ensures an adequate level of protection as referred to in the directive, or (ii) the transfer is in accordance with one or more of the conditions referred to in the Applicable Data Protection Law.

KDS undertakes to store all End User Data related to the Agreement within the European Economic Area, except as otherwise provided within the Agreement or as agreed in writing by the Parties.

14.1      KDS agrees that all End User Personal Data which is received used or stored in connection with the Software provided hereunder or otherwise are, as between KDS and the End User, the exclusive property of the End User. KDS hereby waives, except as provided in Clause 14.3, any interest, title, lien or right to any such data or records.

14.2      If either Party determines in good faith that it is required to disclose Personal Data pursuant to an applicable law or order, judgment or decree of a court of competent jurisdiction, the receiving Party shall provide the disclosing party with written notice prior to making any such disclosure so that the disclosing party may seek an appropriate protective order or other remedy and/or waive the provisions of this.

14.3      Notwithstanding anything to the contrary herein, KDS and may gather, compile, commingle and use aggregate statistical or analytical data and/or performance information about its provision and the use of the Software regarding all of its customers including the End User, resellers, solely for financial, accounting, product optimization, customer support, and other internal business purposes as such purposes relate to the provision of services hereunder. KDS retains all ownership and intellectual property rights to those aggregate statistical or analytical data and that aggregate statistical or analytical performance information.

14.4      Reversibility of Data

Upon termination for any reason whatsoever of this Agreement, the End User will be able to retrieve all its Data from the Software in the KDS standard format until the date of effective termination. After the effective termination of the Agreement, KDS will delete the End User’s Data and past this date, the End User will not be able to retrieve its Data anymore. Before the deletion of the End User’s Data, the End User may request KDS to provide the End User with a fee quote for the provision of the End User Data in another format.

  1. Confidentiality

15.1      Each Party acknowledges that in the course of dealings between the Parties, it may acquire information about the other, its business activities and operations, its technical information and trade secrets, all of which are highly confidential and proprietary (the “Confidential Information“). Confidential Information shall not include information generally available to or known by the public, or information independently developed outside the scope of this Agreement. A recipient Party shall hold all such Confidential Information in strict confidence and shall not use or reveal the same except pursuant to a final order of a court or other body of competent jurisdiction. The Confidential Information shall be safeguarded by the recipient Party with at least as great a degree of care as it uses to safeguard its own confidential materials or data relating to its own business but in no event, less than reasonable care.

Upon termination of the Agreement, as to the Recipient Party, it shall, without prior demand or request of the Disclosing Party, promptly delete any and all Confidential Information of the Disclosing Party in all forms or supports whether in writing or not and all copies thereof in the Recipient Party’s possession or control.

It is expressly agreed by the Parties that the following are not considered as being confidential:

  • information that has fallen or falls into the public domain for a reason other than the non-respect of the present Clause,
  • information already held by the Recipient Party at the time the said information is provided,
  • information developed by the Recipient Party, without referral to the information provided by the other Party or communicated by a third party to the Recipient Party, without the Recipient Party being aware of the breach of the present Clause,
  • information that the Recipient Party may have to divulge in application of a legal or statutory provision.

The Parties obligations under this Clause 15 shall survive the termination of the Agreement for a period of three (3) years.

  1. Intellectual Property

Unless otherwise agreed and without prejudice to possible exceptions pursuant to local intellectual property legislation, KDS hereby grants the End User, for the duration of the Agreement, a non-transferable, world-wide, non-exclusive, non-assignable licence to use the Software as defined in the Agreement and its accompanying documentation provided for the End User’s business purposes.

The licence includes:

  •      the right for any Authorised User to use the Software for professional purposes;

–      the right to access the Software from any CPU (central processing unit) or other device, item of equipment;

–      the right to access the Software remotely.

Title to intellectual property rights, software or other information or documents and Software made available by KDS to the End User shall remain the exclusive property of KDS.

In particular, KDS shall keep the ownership of its IPR, methods, of the know-how, copyright, other intellectual property rights and the procedures developed and implemented by itself or its contractors for the purpose of performing its obligations under the Agreement.

The End User shall not attempt to copy, adapt, translate, modify, reverse engineer or otherwise create any derivate works out of KDS’s IPR without its prior written consent and shall not use KDS’s IPR for any other purpose than those specifically described in the Agreement.

The End User undertakes to maintain confidentiality, except as expressly authorised under the terms of the Agreement, with respect to KDS’s IPR, in whatever form embodied and the End User shall ensure that their own staff and third parties involved in the performance of the Agreement shall maintain confidentiality of such IPR. Upon termination of the Agreement for any reason, the End User shall promptly return to KDS any materials (including operations manuals) containing IPR belonging to the other Party.

More specifically, the End User acknowledges and agrees that the Software used is and shall remain the sole exclusive property of KDS, shall not be sold, used, revealed, disclosed or otherwise communicated, directly or indirectly, by the End User to any person, company or institution whatsoever other than for the purposes set forth herein. It is expressly understood that no title to or ownership of the intellectual property rights in or to the Software or any part thereof is hereby transferred to the End User.

The provisions of this Clause 16 shall survive the termination of the Agreement for the purposes of ensuring the respect of accrued rights of KDS pursuant to this Clause.

  1. No Partnership or Agency

The Parties are independent contracting Parties and nothing contained in the Agreement and no action taken pursuant thereto shall be deemed to constitute between the Parties a partnership, association, joint venture or other entity or make any Party the agent of any other.

  1. Entire Agreement

The Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof. The Parties acknowledge and agree that all prior agreements between the Parties are replaced by this Agreement.

  1. No Reliance

Each Party acknowledges that in entering into the Agreement on the terms set out in the Agreement it is not relying upon any representation, warranty, promise or assurance made or given by the other Party or any other person, whether or not in writing, at any time prior to the date hereof which is not expressly set out in the Agreement or any documents referred to therein.

  1. Subcontracting

KDS may subcontract the performance of any obligation under the Agreement without the prior consent of the other Party, provided that it shall remain fully responsible for the performance of the Agreement in accordance with its terms, including any obligations it performs through subcontractors. KDS shall be solely responsible for payments due to its subcontractors.

No subcontractor shall be deemed a third party beneficiary for any purposes under the Agreement.

  1. Nonexclusive Remedies

Except as otherwise expressly provided in the Agreement, each of the remedies provided under the Agreement is cumulative and is in addition to any remedies that may be available at law.

  1. No third party beneficiary

Exception made of End Users benefiting from this Agreement, and except as specifically set forth in Clause 11.5, the Agreement does not provide and shall not be construed to provide third parties, with any remedy, claim, liability, reimbursement, cause of action, or privilege.

  1. Waiver

The failure or omission of any of the Parties hereto to insist, in any instance, upon strict performance by the other Party of any term or provision of the Agreement or to exercise any of its rights hereunder shall not be deemed to be a modification of any term hereof or a waiver or relinquishment of the future performance of any such term or provision by such Party, nor shall such failure or omission constitute a waiver of the right of such Party to insist upon future performance by the other Party of any such term or provision.

  1. Good faith

In the performance of their obligations under the Agreement, the Parties shall act in accordance with good faith requirements. In situations in which notice, consent, approval or similar action by a Party is permitted or required by any provision of the Agreement, such action shall not be unreasonably delayed, withheld or conditioned.

  1. Compliance with Laws

Each Party shall comply with all applicable laws, regulations and codes of practice of any relevant government or competent governmental agency.

  1. Substitution and Assignment of the Agreement

The Parties expressly agree that the assignment, in full or part, of the rights and obligations arising from the Agreement to a third party is forbidden, except with the prior written agreement of the other Party.

  1. Headings and Counterparts

Headings are inserted for reference purposes only and shall not affect the interpretation or meaning of the Agreement. The Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which, together, will constitute one and the same instrument.

  1. Invalidity

If any of the terms and conditions of the Agreement shall be or become unenforceable for any cause or reason whatsoever, the ensuing lack of enforceability shall not affect the other provisions hereof (provided the unenforceable clause is not considered as an essential clause of the Agreement) and in such event the Parties shall endeavour to substitute forthwith such other enforceable provision as will most closely correspond to the legal and economic contents of the said terms and conditions.

Neither the obligations of a Party contained in the Agreement nor the rights, powers and remedies conferred upon the other Party in the Agreement or by law shall be discharged, impaired or otherwise affected by (i) the administration or reorganization of the first Party or any change in its status, function, control or ownership or (ii) any of the obligations of the first Party under the Agreement being or becoming illegal, invalid, unenforceable or ineffective in any respect.

  1. Notices

All notices, requests or communications between the Parties under the Agreement shall be in the English language by letter signed by an authorised representative of the sending party, or by fax, cable or telex immediately confirmed in writing. Mail notices shall be considered as validly served if mailed in the form of pre-paid registered letter, return receipt requested, to the addresses set out below:

For the Subscriber:

The address registered in the Software during the online implementation pursuant to Clause 4.

For KDS:

  • KDS SA – Sales Administration – 11 chemin de bretagne,
  • 92130 Issy les moulineaux, France
  1. Law and Jurisdiction

32.1      The Agreement shall be governed by and construed in accordance with the laws of England.

32.2      For the purposes of this Clause 32, a “Dispute” shall be deemed to have occurred if the Parties are unable to agree on any matter requiring their agreement and any Party serves notice upon the other, pursuant to Clause 31, stating that it believes there exists a dispute of fundamental importance which cannot be resolved by further negotiation between them.

32.3      If a Dispute has occurred, any Party may serve notice in writing on the other Party stating that in its opinion a Dispute has occurred and identifying the reasons.

The Parties undertake that, following the service of the said notice, they shall forthwith:

  • circulate to each other a memorandum setting out its position on the matter and its reasons for adopting its position,
  • refer the Dispute to the coordination committee, which shall include a senior management executive director from KDS and a senior management executive director from the End User (the “Coordination Committee”),
  • Respectively make all reasonable endeavours in good faith to agree on a resolution of such Dispute.

In cases where no agreement can be achieved after a period of sixty (60) days from the date of the first notice pursuant to Clause 31, the Dispute shall be defined as an Unsolved Dispute and shall be governed by the provisions of Clause 32.4 below.

32.4      Both Parties agree to submit any Unsolved Dispute to the exclusive jurisdiction of the Courts of London, England.

  1. Definitions

In this Agreement, unless the context otherwise requires, the following terms shall have the respective meanings set forth below:

Affiliate” means in reference to any Party, any other entity that: (a) directly or indirectly controls or is controlled by such Party; or (b) is directly or indirectly controlled by an entity that also directly or indirectly controls such Party (under common control); and for the purpose of this definition a Party controls another entity if such Party (i) holds fifty percent (50%) or more of the participating interests, voting rights, shares or equity in such entity, or (ii) has the power to direct or cause the direction of the management and policies of the entity, whether directly or indirectly, through one or more intermediaries or otherwise, and whether by ownership of shares or other equity interests, the holding of voting rights or contractual rights, by being the general partner of a limited partnership, or otherwise.

Agreement” means these KDS General Terms & Conditions the Service Level Agreement, any additional Exhibits and all their respective Appendices when applicable.

Authorised User” means any user which has been registered by the Subscriber in KDS’ platform to benefit from an individual user account with the Software and whose account has been configured by the Subscriber.

Documentation” means all corporate company manuals provided by KDS to the End User in relation to the Software accessible online through the Software administration tool.

End User” means the Subscriber or any of its Affiliates that is authorised to use the Software and is individually provided with Implementation Services from KDS.

GDS / CRS” means Global Distribution System/ Central Reservation System, the system where airlines, hotels, car rentals and other suppliers make their services and pricing available to travel agents.

Intellectual Property Rights” or “IPR” means any patent, copyright, trademark, service mark, trade name, trade dress, trade secret or any other intellectual property right, now known or later developed.

KDS” means Klee Data Systems, a French share capital corporation, with a share capital of 3,270,348.48 Euros, whose registered office is at 11 chemin de bretagne, 92130 Issy les moulineaux, France, registered with the Trade Register of Nanterre under number 394 915 581.

KDS Connect” means a module of the Software which allows users to link the KDS accounts with third party accounts, enabling third party content to be pushed on KDS’s platform for expense management. access one or more optional integrated third-party services including airlines, hotel booking agents, railor other third-party service providers through KDS Software.

Maintenance Services” means the maintenance and support services provided by KDS to the End User pursuant to the provisions of the SLA.

Parties” means both KDS and the Subscriber. In the singular form, “Party” means either KDS or the Subscriber.

Services” means the access to the Software further to the implementation pursuant to Clause 4.

Software” means KDS’ software products provided as a service (SaaS) through an access to KDS platform. For the purpose of this Agreement, the software products are defined in Clause 2.2.

Subscriber” means the entity subscribing to KDS’ services.

Territory” means the United Kingdom.

 

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