FAIRFLY SERVICE AGREEMENT TERMS AND CONDITIONS
Unless the context otherwise requires or unless otherwise defined in this Agreement, the following terms will bear the meanings set out opposite them:
1.1. “Affiliate” shall mean an entity controlled by, controlling or under common control with either Party. For the purpose of this definition, the term “control” means the possession, directly or indirectly, of more than 50% of the voting stock of the controlled entity, or the power to direct, or cause the direction of the management and policy of the controlled entity.
1.2. “Clients” shall mean the Company’s clients who have opted in for the FairFly Services, and therefore, are receiving the Savings.
1.3. “GDS’s API” shall mean Global Distribution Systems API, as made available to Company in the course of its business. Included in GDS’s API is access to the GDS WebServices credentials (both username and password) as well as a designated queue within the GDS and airline codes for private fares.
1.4. “Intellectual Property Rights” shall mean all intellectual property rights whether registered or not including all (i) patents and anything described therein, including without limitation any continuations, extensions, divisions, substitutions or additions to such patents and all patents which are reissues thereof, re-validations and registrations based thereon; (ii) trademarks, trade names, service marks, designs, logos, trade dress, and trade styles, whether or not registered, and all pending applications for registration of the same; (iii) database rights, mask works, copyrights, whether or not registered; (iv) invention(s), (v) trade secrets, (vi) all pending applications for any of the foregoing and all permits, grants, and licenses or other rights to any of the foregoing.
1.5. “Reservations” shall mean valid and pending airline ticket orders, processed by Company on behalf of their clients.
1.6. “Results” shall mean all output, results, conclusions, understandings, analysis and issues, including all visual or other expression thereof, derived by FairFly from the FairFly Services or related thereto.
2. Subscription to the FairFly Services
2.1. During the Term (as defined below) and subject to the terms of this Agreement, Company shall provide FairFly with access to Company’s GDS’s API (for all relevant GDSs), in order for FairFly to track and monitor Company’s clients’ Reservations and locate similar reservations at lower prices in order to allow Company to offer improved rates and prices to their end customers (the “Purpose”).
2.2. During the Term, based on parameters provided by Company, FairFly shall notify Company of any potential Savings, to enable Company to rebook Reservations in order to lock in identified Savings for Company clients.
2.3. Restrictions: Company shall not use the FairFly Services for any purpose other than the Purpose in accordance with the terms of this Agreement. Without derogating from the generality of the foregoing, Company may not use the FairFly Services for any type of non-retail commercial activity, or otherwise use the FairFly Services in any way that is not explicitly permitted under this Agreement. Company may not otherwise take possession of, transfer, copy, reverse engineer or reproduce the FairFly Services or any part thereof in any form whatsoever or authorize or assist any third party to do so.
2.4. Company shall make payment to FairFly with respect to Reservations monitored pursuant to the terms of order attached hereto. FairFly may update the terms of Order Page in its discretion subject to providing 90-day prior written notice to Company.
3. Payment Terms
3.1. Invoicing. FairFly shall invoice Company by email within 5 business days of the end of each month with respect to the previous month, for Service Fee accrued and due to FairFly hereunder during such month. Company shall pay the Service Fee by wire transfer in accordance with FairFly wire instructions within 30 days of date of invoice. It is acknowledged that the Service Fees are excluded of any taxes, VAT, charges, costs, expenses or customs and net of any tax withholding.
3.2. Delay in payment. Any delay in payment of the Service Fees past the specified timeframe shall be subject to an additional fee equal to 1.5% of the total invoice amount on that day, for each additional business day.
4. Data Protection
4.1. Generally. The Parties acknowledge and agree that
4.1.1. (i) use of the FairFly Services by Company and its Affiliates shall involve processing of personal data by FairFly;
4.1.2. (ii) FairFly shall act as a data sub-processor in relation to such processing of personal data; and
4.1.3. (iii) the relevant client of Company or its Affiliate shall be the applicable data controller in respect of such processing of personal data (“Data Controller”) and Company or its Affiliate(s) shall be a data processor.
4.1.4. 3.1.2 FairFly will (i) comply with the data security laws applicable to it in the markets where it is providing the FairFly Services hereunder, and (ii) comply with all data privacy laws applicable to it in such markets.
4.2. Obligations as a data processor. Notwithstanding and in addition to the foregoing, FairFly in its capacity as data processor:
4.2.1. (i) shall process personal data only to the extent and in such manner as is necessary to meet the Data Controller’s instructions (which shall unless otherwise agreed in writing be to process the personal data as necessary for the purpose of providing the FairFly Services as contemplated by this Agreement), or as otherwise required to comply with a data privacy law to which FairFly is subject (in which case FairFly shall inform Company before processing for those purposes).
4.2.2. (ii) having assessed the requirements of applicable data protection laws, warrants and agrees that it has in place and will maintain technical and organizational measures (which shall include, without limitation, measures that meet the requirements of ISO 27001) that are appropriate to protect personal data from unlawful or unauthorized processing and against accidental loss, damage, alteration or destruction, taking into account the harm which might result, having regard to the nature of the personal data being processed. FairFly shall ensure compliance with these measures and will provide Company with a reasonably detailed description of the measures on request.
4.2.3. (iii) shall take reasonable steps to ensure the reliability and integrity of all personnel who have access to personal data and shall ensure that such personnel are aware of the confidential nature of that data and are aware of and comply with the obligations in this section 7, including pursuant to confidentiality undertakings (or equivalent) in their terms of employment.
4.2.4. (iv) shall promptly and fully notify Company in writing of any notice, request, complaint or communication it receives in connection with the processing of personal data in connection with this Agreement, including any data subject or data subject access request, and provide such information and assistance as Company may reasonably require in connection with its response to that notice or request;
4.2.5. (v) shall notify Company in writing without undue delay if any personal data has been lost, damaged, altered, accessed, disclosed or used in non-compliance with this Agreement and provide full explanation of and such further information and assistance as Company shall reasonably require in connection with the investigation and remediation of such non-compliance, in each case at its own cost.
4.2.6. (vi) warrants and represents that as at the Effective Date, it hosts and processes personal data on servers located in Ireland and from locations in Israel and agrees that it will not use servers located outside of the EEA or process personal data from other locations unless it first notifies Company and ensures that appropriate measures and enforceable provisions are place to ensure adequate protection of affected personal data in accordance with applicable law. FairFly will provide Company with a reasonably detailed description of how it has ensured adequate protection on request.
4.2.7. (vii) at Company’s request, shall submit its data processing procedures for audit of the processing activities covered by these clauses by Company in order to verify compliance by FairFly with the provisions of this section.
5. Subcontracting and Sub-processing.
5.1. FairFly has the right to use subcontractors and licensors to perform its obligations pursuant to this Agreement provided that the relevant subcontractor or licensor shall not process personal data governed by section 7.2 unless Company is informed of and agrees in writing to the appointment of that subcontractor or licensor as a permitted sub-processor. As at the Effective Date, Company agrees that FairFly may appoint the following entity/ies as permitted subprocessors: Amazon Web Services, Inc. who host, in Ireland, the servers used by FairFly to provide the FairFly Service.
5.2. FairFly shall ensure each permitted sub-processor is subject to a written agreement governing the processing of personal data which imposes on the sub-processor equivalent obligations as are imposed on FairFly in this Agreement as applicable, including as to adequate protections where the sub-processor is located outside the EEA, and which otherwise is in accordance with applicable law. FairFly shall remain responsible and liable for all processing of personal data undertaken by its permitted sub-processors. FairFly shall keep a record of all sub-processing agreements that it concludes under this section and shall make that record available to Company on request
5.3. FairFly agrees that non-compliance with this section shall constitute a material breach of this Agreement which may entitle Company to terminate the Agreement by notice in writing.
6.1. (i) shall be regarded as issuing any instructions under this Agreement for and on behalf of the relevant Data Controller and managing the relationship with FairFly in relation to the processing of the Data Controller’s Personal Data;
6.2. (ii) may provide the relevant Data Controller with a copy of this section and the documentation and information referred to within it on request; and/or
6.3. (iii) may enforce the rights and obligations in this clause 7, whether on behalf of the Data Controller or otherwise.
Each Party will hold all Confidential Information (as defined below) of the other Party, whether received prior to, on or after the Effective Date, in strict confidence and shall not directly or indirectly use (other than for the purposes as permitted hereunder), copy, transfer or disclose any such Confidential Information, unless specifically authorized by the other Party in writing. Each Party understands and acknowledges that all items of Confidential Information of the other Party are important, material and confidential trade secrets of the other Party and affect the successful conduct of its business. “Confidential Information” means any and all proprietary information of a Party, including any and all ideas, information, concepts, designs, logos, names, know how, techniques, processes, methods, inventions, products, works of authorship, discoveries, developments, source code and object code, other programming code, algorithms, innovations, improvements, reports and any and all other data related to the proprietary information of a Party of any kind, disclosed by one Party to the other Party, whether tangible or intangible, whether in written or other form whether designated as confidential or that by its nature would reasonably be expected to be kept confidential. Notwithstanding the foregoing, information shall not be considered Confidential Information to the extent it: (i) is already known to the receiving Party free of any restriction at the time it is obtained from the other Party; (ii) is subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) becomes publicly available through no wrongful act of either Party; or (iv) is independently developed by one Party without reference to any Confidential Information of the other, in each case of (i), (ii) and (iv), as demonstrated by written records of the receiving Party. If Confidential Information is required to be disclosed by law, regulations, court order or subpoena, the receiving Party shall immediately notify the disclosing Party prior to making such disclosure in order to afford the disclosing Party a reasonable period of time to oppose to such order. In the event of such compelled disclosure, the Receiving Party agrees to disclose only that portion of Confidential Information which it is required to disclose.
7.1. Without limiting the foregoing, it is agreed and acknowledged that any and all information of any function or form related to the FairFly Services, or the Results, shall be deemed to be included in the Confidential Information of FairFly.
7.2. It is agreed and acknowledged that Company authorizes and has obtained all necessary third party consents for FairFly to share with certain third parties (which may include airlines) selected at FairFly’s discretion certain processed de-identified information regarding Company’s customers purchased air flights, for the purpose of FairFly providing its services to Company and attempting to procure better savings for Company’s customers.
7.3. It is agreed and acknowledged that each Party retains ownership of its own Confidential Information.
8. Intellectual Property
FairFly owns and shall retain all right, title, and interest in and pertaining to the FairFly Services, including without limitation the Results and all Intellectual Property Rights contained therein or related thereto, and any derivatives, modifications, or enhancements thereof.
9. Non-Solicitation Rights
Company shall not solicit FairFly employees during the term of the Agreement, and for an additional 3 years following the termination of the agreement and its terms.
10. Warranties and Representations
Each Party hereby represents and warrants that (i) it is a corporation, validly existing under the laws of the jurisdiction of its incorporation and it conducts its business in compliance with applicable laws and not in violation of the rights of any third party; (ii) it has all right, power and authority to enter into this Agreement and to fully perform its obligations hereunder; and (iii) there is no other restriction, limitation, contractual obligation or statutory obligation which prevents it from fulfilling its obligations under this Agreement.
11. No Warranties by FairFly or Company
THE FAIRFLY SERVICES, CONFIDENTIAL INFORMATION AND ALL ACCOMPANYING MATERIALS, ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FAIRFLY AND Company HEREBY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE (REGARDLESS OF WHETHER FAIRFLY OR Company KNOWS OF SUCH PURPOSE).
12. Mutual Limitation of Liability
To the maximum extent permitted by applicable law, in no event will either Company or FairFly or its subsidiaries, officers, directors, and employees be liable for personal injury, or any indirect, special, incidental, consequential, exemplary, or punitive damages of any kind, arising out of or related to the FairFly Services or Company, including but not limited to damages for loss of profits or data, business, goodwill, data, time or computer programs, even if advised of the possibility of such damages. In no event will any of the Parties’ and their respective subsidiaries’, officers’, directors’, and employees’ aggregate liability exceed the subscription fee actually received by FairFly under this agreement in the 12 months preceding a claim for liability, regardless of the form of the claim (including, without limitation, any contract, product liability, or tort claim).
13. Term and Survival
13.1. This Agreement shall commence upon the Effective Date and shall continue for a period of 1 year unless terminated earlier in accordance herewith, thereafter this Agreement shall automatically extend for an additional 1 year period unless either Party provides the other Party with a 90 days’ prior written notice of its intention not to extend the Agreement (the “Term”).
13.2. Either Party may terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within 60 days of receiving written notice thereof from the non-breaching party.
13.3. Either Party may terminate this Agreement for convenience by providing the other Party with 90 days’ prior written notice.
13.4. Sections 1, 3, 4, 5, 7, 8, 9, 10, and 11 shall survive expiration or termination of this Agreement.
The Parties acknowledge that a breach of this Agreement would cause the other Party irreparable harm which monetary damages will be insufficient to remedy. Accordingly, the injured Parties, in addition to any other remedies available at law, shall be entitled to specific performance, injunctive or other equitable relief as a remedy for any such breach.
15. Governing Law
This Agreement shall be governed by, and construed and interpreted in accordance with, the Laws of the State of Israel without regard to conflict of laws principles. The Tel Aviv courts shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement.
This Agreement constitutes the full and entire understandings and agreements between the Parties and replaces any previous agreement and/or communications between the Parties; (ii) this Agreement shall not be amended, modified or varied by any oral agreement or representation or otherwise then by written instrument executed by both parties or their duly authorized representatives; (iii) no failure, delay or forbearance of either Party in exercising any power or right hereunder shall in any way restrict or diminish such party’s rights and powers under this Agreement or operate as a waiver of any breach or non-performance by either Party of any of the terms or conditions hereof; (iv) this Agreement may not be assigned by Company and Company may not transfer its rights or obligations hereunder without the prior written consent of FairFly, including by way of merger, acquisition or other change of control transaction; (v) should any part of this Agreement become invalid or shall have no legal force, the remaining provisions in the Agreement shall continue to be valid; (vi) this Agreement does not create any relationship of agency, partnership, joint venture, or employment between the Parties. FairFly and Company enter into this Agreement as independent contractors and neither Party will have a right or authority to assume, create, or enlarge any obligation or commitment on behalf of the other Party and will not represent itself as having the authority to bind the other party in any manner; (vii) neither Party shall be liable for any failure to perform any of its obligations under this Agreement which results from reasons beyond its control including but not limited to: acts of God, the elements, fire, flood, force majeure, riot, insurrection, industrial dispute, war, embargoes, etc; (viii) all notices and requests required or authorized hereunder, shall, except where specifically provided otherwise, be given either in writing by personal delivery to the Party to whom notice is to be given, or sent by registered mail, addressed to the party intended and its address set forth in this Agreement or by email or facsimile. The date of approved log of transmittal when delivering by email or facsimile; the date of delivery in the case of personal delivery or 5 days from the date upon which it is deposited in the mail in the case of notice by mail, shall be deemed to be the date of such notice.