This Shiji Ice Portal Master Services Agreement (together with all schedules and exhibits hereto, the “Agreement ”) by and between (“Client”) as described under theService Order Agreement details section, and Shiji (US), Inc ., a Delaware corporation (“Shiji”) whose principal address is 730 Peach tree Street, Suite 375, Atlanta, Georgia, 30308 USA, is entered into as of (the “Effective Date ”)of the signed Service Order Agreement. “Client” and “Shiji” (together herein after may be referred to as the “Party ”or the “Parties ”), set forth the terms, conditions and notices contained herein.
a. Shiji operates a technology content management system consisting of various software, servers and other hardware (“CMS ”) for the hosting, management, marketing, and distribution of Content for Travel Suppliers.
b. Shiji also offers a variety of additional content production and digital marketing services. All services provided by Shiji under this Agreement, including hosting, management, distribution, production and marketing services will be referred to collectively as the “Services. ”
c. Client wishes to utilize the Services of Shiji to host, manage, market, and distribute Client Content (primarily visual content) and make ClientContent available, in the Specifications (as defined in Schedule A), to certainDistribution Partners as designated by Client in writing or via the CMS from time to time here under (including Global Distribution Systems (GDSs), OnlineTravel Agencies (OTAs)s, wholesalers, and other third party travel providers and/or media outlets). Client wishes to utilize only those Services set forth herein or in any SOW.
d. “Client Content ” means any trademarks, trade names, domain names, and logos (together, the “Client Marks”) and any other information, text, images, Rich Media, or similar content pertaining to Client and any lodging properties operated by Client or its affiliates (the “Hotels ”) collected and hosted by Shiji hereunder, and including thatContent a User uploads to the CMS. A “User ”is defined as any individual employed or contracted by Client or a Hotel thatClient designates as being permitted to use the Services, including accessing the CMS, as more particularly described in Schedule A. Client may designate an unlimited number of Users.
e. Additional specifications of the Services and corresponding costs (“Services Fees”) are outlined in theBusiness Requirements document hereto attached as Schedule A.
f. By submitting any Content for marketing and distribution through Shiji, Client is deemed to have accepted and agreed to the Hotel Content Marketing andDistribution Terms and Conditions set out in Schedule B.
g. In addition to those terms defined in the body of this Agreement, the definition of specific capitalized terms referenced in this Agreement and subsequentStatements of Work is attached as Schedule C.
h. Such Services will be performed as set forth herein, including as provided for in the Service Level Agreement (“SLA ”)hereto attached as Schedule D.
In consideration of the mutual commitment sand covenants as set forth in this Agreement and for other good and valuable consideration, the Parties agree as follows:
a. Shiji will provide Services as more fully set forth in the BusinessRequirements - Specifications of Service and Costs (Schedule A) or in a Statement of Work (SOW), in connection with the Content hosting, management, marketing and delivery functions for Client. During the term of this Agreement, the parties may enter into one or more SOWs pertinent to specific Services to be performed by Shiji for Client. In order to be binding on the parties, each SOW shall;
(i) be in writing,
(ii) bear an authorized signature of each of the parties, and
(iii) refer to this Agreement. Any SOWs shall become a part of, and governed by, this Agreement.
b. In lieu of an initial SOW, the Services outlined in Schedule A shall constitute the initial SOW.
c. Each SOW shall contain, at a minimum, the description of the Services to be performed hereunder and the associated Services Fees payable by Client in connection with receiving such Services. In the event of a conflict between the terms and conditions within the body of this Agreement and any SOW, the terms and conditions contained within this Agreement shall prevail.
d. Shiji may require Client, in using the Services supplied by Shiji, to adhere to certain technical specifications. Client may terminate this Agreement or the applicable SOW at any time if such procedures or technical specifications are not commercially, technically, or economically feasible, in Client’s reasonable discretion, without penalty or the requirement to pay liquidated damages. If Client has pre-paid any ServicesFees in connection with this Agreement or the terminated SOW, Shiji will refund a pro-rata portion of such pre-paid Services Fees promptly after termination is effective.
e. Client shall, as reasonably requested by Shiji, provide Shiji in a reasonable timeframe with any and all information, data, and cooperation reasonably necessary for the proper and timely delivery of the Services under this Agreement and the corresponding SOWs. Client’s failure to do so will not be considered a breach of this Agreement; however, Shiji will not be responsible for any failure to meet its obligations hereunder to the extent caused directly byClient’s failure.
f. Client shall at all times be responsible for the use made within its own organization of Shiji’s CMS and Services, for its own software and equipment, and for its own authorization and security procedures.
a. Client will have the continuing right to request in writing that Shiji make changes, modifications or enhancements (“Changes ”) to the scope and/or direction of the Services and any deliverables in accordance with this Section 3.
b. To request such a change, Client will deliver a written notice (“Change Order Request”) to Shiji specifying the proposed Change.
c. Shiji shall deliver promptly thereafter to Client a written response (“Change Order Response”),
(i) specifying how the proposed Change would be implemented,
(ii) describing the effect, if any, that such Change will have on the schedule for Services, and
(iii) describing the increase, if any, in the Services Fees under thisAgreement that would result from the implementation of such Change.
d. If the Change Order Response specifies that the making of the Change will not affect the schedule for the Services or the Services Fees, then Shiji shall effect such Change in the timeframe set forth in the Change Order Requestor, if no timeframe is indicated, within a reasonable timeframe.
e. If the Change Order Response specifies that the making of the Change will affect such schedule or charges for the Services, then Shiji and Client must agree in writing (“Change Order ”) to the Change Order Response to authorize making the Change.
f. Change Orders shall be deemed an amendment to, and become part of, thisAgreement.
a. This Agreement shall commence as of the Effective Date set forth above and, unless terminated as provided herein, shall continue for an initial period of one (1) year (the “Initial Term ”).This agreement will automatically renew for no longer than one (1) year (a “Renewal Term”). This process will be repeated before the end of each such Renewal Term (the Initial Term and allRenewal Terms, the “Term ”).
b. At all times, during the Term, Client will retain control over Client’s Content stored and being distributed through Shiji and Shiji may not use any such Client Content except as explicitly set forth in this Agreement. Client acknowledges that some of Shiji’s Distribution Partners have affiliates that automatically receive certain visualContent and other Rich Media provided by Shiji to that Distribution Partner. Shiji does not always have knowledge of the specific affiliates so powered and is not in a position to remove any Content from those affiliates without also removing it from the Shiji Distribution Partner that powers them.
c. Shiji alone shall own all right, title and interest, including all related intellectual property rights to the CMS and any other hardware, software or technology, including user interfaces, used to deliver the Services or otherwise developed by Shiji hereunder (the “ICE Technology ,”) except that Shiji grants Client a limited, worldwide, non-transferable (except to permitted assigns) right and license to access and use the ICE Technology (including the CMS) to the extent required to receive the full benefit of the Services hereunder. This Agreement is not a sale and does not convey to Client or any Hotel any rights of ownership in or related to ICE Technology, or the intellectual property rights owned by Shiji, except as set forth herein.
Except for the limited licenses set forth in the Hotel Content Marketing and Distribution Terms and Conditions attached as Schedule B hereto, nothing in this Agreement shall convey to Shiji any ongoing intellectual property in or other rights to any Client Content.
Shiji will prevent unauthorized access to any Client Content, including by Channels whom Client has not selected to be Distribution Partners and will promptly notify Client in writing of any known security breaches or potential security breaches. Unless Client and Shiji otherwise agree in writing, Shiji will store all Client Content on managed cloud-based servers, which are fully equipped with redundant building systems that guard against power outages, fire hazards, and security threats. Shiji will maintain a complete and current backup copy of any Client Content (“Backup Materials ”) and use commercially reasonable means to ensure that such Backup Materials are safeguarded against destruction or other data corruption. If access or service is interrupted to the Client Content or to any portion thereof, the appropriate Backup Materials will be activated within twenty four (24) hours to minimize disruptions, subject to a Force Majeure Event. Shiji will make best efforts to ensure that the ICE Technology (including the CMS) is and remains free from all malware, program, routine device or other features including, without limitation, computer viruses, software locks, worms, time-outs, time bombs, back doors, disabling devises and other harmful or malicious code (“Malware ”), including any that may cause the Client Content to be erased. a. For the Services provided to Client by Shiji, Client will pay Shiji the ServicesFees as set forth in the applicable SOW (including Schedule A). If the ServicesFees set forth in the SOW are not fixed fee or milestone based, such SOW shall incorporate an agreed-upon good faith estimate of the Services Fees and reimbursable expenses associated with that SOW, which shall be reimbursed in accordance with Section 6d below. Further, in any SOW for which Services Fees are estimated, Client will only be required to pay Services Fees in an amount equal to the estimated Services Fees plus 5% absent written amendment to theSOW. Shiji shall provide Client prompt written notice if it determines that the estimated Services Fees in any SOW are likely to exceed that amount and the parties shall negotiate in good faith to amend the SOW as necessary or, inClient’s discretion, terminate it.
b. Invoices will be issued in accordance with the terms indicated with in he applicable SOW for the Services and undisputed amounts of Services Fees and reimbursable expenses (together, “Charges”) are due upon receipt by Client. Outstanding undisputed balances are considered past due sixty (60) days after invoice date and are subject to alate fee of $49 and accrue interest of up to one and one half percent (1 ½%)per month or the maximum permitted by laws, statutes, orders, ordinances, regulations, agency or court decisions or similar acts of governmental authority (together, “Laws ”) of all applicable jurisdictions. In addition, if Shiji requires Client to pay any sales and use tax, VAT, duties, levies or similar assessments made by government authorities of competent jurisdiction assessed on Client’s use or purchase of the Services (“Taxes ”), Shiji shall list such Taxes on each invoice as a separate line item and will be solely responsible for remitting Taxes to the proper taxation authority. Client will not be required to pay any Taxes assessed solely on Shiji’s income or profits.
c. If Client reasonably determines that any invoice is incorrect, Client will notify Shiji upon receipt of the invoice to resolve any disputes regarding the invoice and/or related documentation. Any invoice not disputed by Client with in sixty (60) days of receipt shall be deemed valid.
d. Any expenses for travel, or otherwise, incurred by Shiji at the request of Client will be reimbursed by Client in accordance with, and are subject to, the travel and expense reimbursement policies of Client. Such expenses must be (i)pre-approved in writing by Client and (ii) listed in the applicable SOW. Each invoice will separately set forth such actual expenses by Client for reimbursement and will be accompanied by supporting documentation and receipts.
e. In the event that Client, after receiving written notice, remains in default of payment of any undisputed Charges for a period exceeding one hundred and twenty (120) days from the date of invoice (the “Cure Period ”), Shiji may retain a third-party collections agent, attorney or similar third-party to collect the debt and Client will be liable for all such third-party costs and expenses incurred by Shiji, including a lllegal fees, incurred in the attempt to collect any and all outstanding undisputed Charges owed to Shiji.
a. Shiji warrants and represents to Client that the Services will be performed in a diligent, efficient and skillful manner, and to the best of Shiji’s ability and no less than in accordance with industry standards.
b. Shiji represents and warrants that: (i) the Shiji Technology and its products and Services do not and will not infringe on any third party’s intellectual property rights, including any third-party patent rights; and (ii)there are no legal impediments or restrictions effecting Shiji’s ability toperform hereunder.
c. The Shiji Technology does not and shall not include any open-source software or code, including any such software or code licensed to Shiji under aGPL or LGPL or similar open-source license that would require Client to disclose any Confidential Information or take any affirmative action (e.g. to post code to publicly available websites);
Client represents and warrants that ast o any Content provided pursuant to the Agreement: (i) such Content does not and will not infringe any third party’s copyright, trade secret rights or trademarks, (ii) such Content does not infringe a United States Patent of any third party, and (iii) it either owns the copyrights, image rights and neighboring rights to any Content provided by Client to Shiji or it holds sufficient rights or necessary approvals regarding the digital Content provided by Client to Shiji.
d. Shiji shall at any time, at Client’s request, provide written proof of the rights and/or licenses specified above, if available in tangible form.
a. Each party shall at all times hold in strict confidence the terms of this Agreement and any information, either verbal or written, of one party disclosed to the other under this Agreement (“Confidential Information ”) and shall not at any time use or disclose such Confidential Information to any person, except its respective personnel, agents, and independent contractors, (i)if Shiji, to the extent required to fulfill its obligations hereunder and only to persons who have a specific need to know in the performance of their work todo so; and (ii) if Client, to the extent required to receive the full benefit of the Services anticipated hereunder and to persons who have a need to know such Confidential Information for such purpose (including, if applicable, Users)and who have been informed of the obligations under this Section. Each party will be responsible and liable for the unauthorized use or disclosure of the other’s Confidential Information by those persons to whom that party disclosed it. For clarity, Client Content will be considered Client’s ConfidentialInformation and Shiji may only disclose it to Distribution Partners withClient’s written consent and to the extent so permitted, as discussed above.
b. Except as provided above, each party hereto agrees to take all reasonable precautions to prevent the disclosure to outside parties of such ConfidentialInformation and to protect the other’s Confidential Information with at least the same level of care as it protects its own Confidential Information and, in any case, with no less than a reasonable standard of care.
c. Notwithstanding the above, Confidential Information shall not include information that is,
(i) Already known by the recipient party without an obligation of confidentiality,
(ii) Publicly known or becomes publicly known through no unauthorized act of the recipient party,
(iii) Rightfully received from a third party without obligation of confidentiality,
(iv) Independently developed by the recipient party without use of the other party’s Confidential Information, or
(v) Approved by the disclosing party for disclosure (but only to the extent permitted by the disclosing party and with all restrictions imposed thereon by such party).
d. It will not be a violation of this Section if a party discloses the other’s Confidential Information to the extent required pursuant to applicableLaws, including by subpoena, so long as, unless prohibited by applicable Laws, the party required to disclose the Confidential Information provides the other party with sufficiently timely prior notice of such requirement to permit that party to contest or seek to limit the disclosure or seek a protective order or similar instrument.
e. Each party is and will remain the sole owner of all right, title and interest in and to its Confidential Information, except for the limited permissions granted herein.
f. The provisions of this Section will survive the expiration or termination of this Agreement for any reason.
a. If in the development or the production of the Services or deliverable(s) hereunder, Shiji incorporates elements from prepackaged ,off-the-shelf material, or material owned by, acquired from, or proprietary to, third parties, Shiji shall be responsible, at its own expense, for obtaining any and all permissions, releases, licenses, or consents (“Consents ”) necessary to utilize the material in such fashion and will provide written assurance to Client, if required, that such Consents have been obtained.
b. This Agreement is a services agreement for the hosting, management, marketing, and distribution of digital media. The parties do not intend to transfer any intellectual property right or related right.
c. As between Client and Shiji, all intellectual property rights in the ICETechnology shall vest with and remain with Shiji or its affiliated companies, except for the limited licenses granted below. Nothing in this Agreement shall be construed to mean an implicit or explicit transfer of intellectual property rights from Shiji to Client.
d. Client has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of any Client Content.
e. Client agrees not to knowingly submit or transmit via the CMS anyContent that:
(i) Is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless Client is the owner of such rights or has the permission from their rightful owner to use said Content and grant to Shiji all of the license rights granted herein;
(ii) May be construed to contain any unlawful, threatening, abusive, libelous, defamatory, obscene, or pornographic Content of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or other wise violate any applicable Laws, or
(iii) Contains Malware.
a. Shiji will indemnify, hold harmless and defend Client and Client’s affiliates, each Hotel, and their respective officers, directors, employees and agents (the “Client Indemnified Parties”) for, from, and against any and all claims, damages, liabilities, losses, costs and expenses (including but not limited to attorneys’ fees) (together, “Claims”) brought against any of theClient Indemnified Parties by a third-party or incurred by the ClientIndemnified Parties as a result of any threatened or actual third- party Claim against the Client Indemnified Parties to the extent arising from or relating to (i)any breach of covenant, representation or warranty made by Shiji under, or any breach of, the Agreement; (ii) Client’s access to and use of the ICE Technology, including the CMS, or the Services in accordance with the terms of thisAgreement; or (iii) Shiji’s violation of any third-party right, including without limitation any copyright, property, or privacy right in any ClientContent.
b. Client will indemnify, hold harmless and defend Shiji and its officers, directors, employees and agents (the “Shiji Indemnified Parties ”) from and against any and all Claims brought by third-parties or incurred by the Shiji IndemnifiedParties as a result of any threatened or actual third- party Claim against the Shiji Indemnified Parties arising from:(i) any breach of covenant, representation or warranty made by Client under, and/or breach of, the Agreement; or (ii) the violation of any third partyright, including without limitation any copyright, property, or privacy right, of any Client Content when used as permitted by Shiji hereunder.
c. A party seeking indemnification from the other will notify the indemnifying party in writing of the applicable Claim. The parties agree that the indemnifying party will have the right to control and defend any such Claim at the indemnifying party’s expense and with its choice of counsel; provided, however, that the indemnifying party may not finally settle a Claim or consent to the entry of any final judgment without the indemnified party’s prior written consent. At the indemnifying party’s request, the indemnified party or parties will reasonably cooperate with the indemnifying party, at the indemnifying party’s expense, in defending or settling such Claim and the indemnified party or parties may join in defense with counsel of their choice at their own expense.
d. The indemnification obligations of each party hereto shall survive the expiration or termination of this Agreement.
a. Shiji will, at its own expense, at all times during the term of this Agreement provide and maintain in effect those insurance policies and minimum limits of coverage as designated below, and any other insurance reasonably required by the standards of its industry, with insurance companies authorized to do business in the jurisdiction where the services are to be performed and will comply with all those requirements as stated herein: (i) Commercial General Liability insurance: covering all operations or activities, arising out of or connected with this Agreement providing insurance for, at a minimum, advertising injury, property damage, and contractual liability, with limits of not less than two million dollars ($2,000,000) per occurrence; and (ii) Professional Liability(Errors and Omissions) insurance to cover any acts, errors, or omissions of Shiji, its employees and agents and subcontractors in the rendering of or failure to render professional Services under this Agreement in an amount of two million dollars ($2,000,000) per occurrence and including intellectual property coverage. If such Professional Liability insurance coverage is issued on claims-made basis, Shiji shall keep such coverage in force for at least three (3) years after the termination of this Agreement.
b. The insurance provided above will be provided in accordance with the following terms and conditions:
(i) The Commercial General Liability policy will name Client, its subsidiaries and affiliated companies and their officers, directors, employees, agents or servants, as additional insureds with respect to this Agreement and shall contain a "cross liability" clause which shall have the effect of insuring each person, firm or corporation named in the policy as an insured in the same manner and to the same extent as if a separate policy had been issued to each;
(ii) Each of the foregoing policies will, where appropriate, provide that the carrier will endeavor to provide written notice to Client in the event of any material change or cancellation of such policy;
(iii) Upon request, Shiji will provide certificates of insurance to Client when this Agreement is signed, or within a reasonable time thereafter, and within a reasonable time after such coverage is renewed or replaced; and
(iv) Shiji agrees that the insurance coverages required to be maintained byit under the provisions of this Agreement shall not limit or restrict its liabilities under this Agreement.
a. In the event of any dispute or disagreement between the parties here to ,either with respect to the interpretation of any provision of this Agreement or with respect to the performance by Shiji or Client under this Agreement, then, upon the written request of either party, each of the parties will designate are presentative whose task it will be to meet and negotiate in good faith for the purpose of endeavoring to resolve such dispute or differences.
b. The representatives will meet as often as the parties reasonably deem necessary in order to gather and furnish to the other information with respect to the matter at issue that the parties believe to be appropriate and germane in connection with its resolution.
c. During the course of such negotiations, the parties will cooperate with reasonable requests of the other party for information.
d. No formal proceedings for the litigation or arbitration of such dispute may be commenced until a period of sixty (60) calendar days after the initial request for such dispute resolution proceedings, provided that a party, without prejudice to these proceedings, may file a complaint, or seek preliminary injunction or other provisional judicial relief as permitted herein.
e. Each party acknowledges that a breach of the other’s confidentiality obligations or the intellectual property licenses granted hereunder may cause irreparable harm to the owning party for which money damages may be inadequate and/or difficult to determine, and, therefore, such party may seek injunctive or other provisional judicial relief to restrain such a breach without (i) entering into the dispute resolution process described in this Section 12.
a. In the event of termination or expiration of this Agreement or an SOW, Shijishall;
(i) Deliver to Client in a format reasonably agreed to by the parties all current Client Content that was provided by Client to Shiji and as updated or modified by Shiji, as well as any other materials furnished to Shiji by Client and
(ii) Return to Client, or at Client’s sole option, destroy (and certify in writing such destruction) any and all Confidential Information of Client.
b. Client shall pay Shiji for Services provided by Shiji for which payment has not been made up to the time of termination that has been accepted by Client pursuant to Section 6 above.
c. If either party materially breaches any obligation under this Agreement, including any SOW, (excluding Client’s payment default, which is discussed above) and fails to substantially cure such default within thirty (30) calendar days after receiving written notice specifying the default, then the party not in default may, by giving the defaulting party written notice there of, terminate this Agreement or the applicable SOW as of a date specified in such notice.
d. Unless otherwise agreed to by the parties in a SOW, termination or expiration of this Agreement shall automatically terminate all SOWs in effect as of the date of termination or expiration.
e. Client may terminate this Agreement or any SOW for convenience (i.e. for any reason or no reason) at any time with no penalties by providing Shiji no less than ninety (90) days prior written notice, unless such notice shall be short eras provided for in a specific SOW.
f. Upon the termination, or expiration of this Agreement, Shiji shall cooperate with Client and/or any third party assigned or designated by Client to assume the like responsibilities or Services as described herein, to affect a smooth transition and, Shiji shall make every effort to mitigate any disruption or loss of Services, or inconvenience to Client. Client shall fairly and justly compensate Shiji for the level of Services to affect such transition which amount, in any case, shall not exceed Shiji’s then-current hourly rate for suchServices.
g. If Client terminates this Agreement for Shiji’s uncured breach, Shiji shall promptly refund a pro-rata portion of any pre-paid Services Fees under this Agreement or any SOWs then active.
Excluding the parties’ indemnification obligations, and to the maximum extent permitted by applicable Laws, neither party hereto shall be liable for any indirect or consequential loss or damage(including but not limited to loss of profits, loss of use, loss of data, loss of business or loss or deformation of data as a consequence of the use and transport of such data through the Internet) (“Excluded Damages ”) under the Agreement, except where such damage orloss results from proven gross negligence or willful misconduct of either. A party will only be required to pay Excluded Damages for an indemnity Claim if such Excluded Damages are finally awarded by the court hearing such Claim.
a. This Agreement will be binding on the parties and their respective successors and permitted assigns.
b. Client specifically contracts for Services from Shiji, and Shiji shall not assign this Agreement to another party, nor assign, subcontract or delegate its performance hereunder without the prior written consent of Client, except that Shiji may subcontract certain hosting and technical Content delivery functions to Service Providers.
c. Client shall not assign its rights under this Agreement without Shiji’s prior written consent; provided, however, that Client may, without the consent of Shiji and at no additional charge, assign, transfer, delegate, or pledge this Agreement or any of its rights or obligations here under to any of it saffiliates or in connection with a consolidation, merger or sale of substantially all of its assets, provided that the assignee or successor in interest assumes in writing the obligations of Client hereunder.
a. Any notice under this Agreement will be deemed to be given if in writing and delivered in person, by overnight delivery service, or by facsimile transmission, receipt confirmed, or five (5) business days after such notice is sent via overnight delivery addressed to the recipient party at its address first set forth above and to the attention of the undersigns to this Agreement.
b. Either party may from time to time change its address or designated representative for notification purposes by giving the other written notice of such change and a date when it is to become effective.
a. Shiji, in providing Services to Client under this Agreement, is acting only as an independent contractor to facilitate the marketing and transfer/distribution of selected image content. Shiji does not, by this Agreement or otherwise, undertake to perform any obligation of Client, or assume any responsibility forClient’s business or operations and is not authorized to enter into any agreements on Client’s behalf or otherwise legally bind it.
b. Any Shiji personnel performing Services will be and remain the employees or agents of Shiji and Shiji will be responsible for the compensation including without limitation salary, taxes, and other benefits or contributions, of such personnel.
c. Nothing contained within this Agreement or as a result of any performance hereunder shall be construed as granting Shiji or any of Shiji’s personnel any rights under any Client benefit plan.
a. If any provision of this Agreement is held to be void, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be fully severable and this Agreement shall be construed and enforced as if such void, illegal, or unenforceable provision never comprised a part hereof, and the remaining provisions of this Agreement shall remain in full force and effect, and shall not be affected in any way by the void, illegal, or unenforceable provision or by its severance.
b. In lieu of such severed provision, the parties shall negotiate in good faith to agree upon a provision as similar in terms to such severed provision as may be possible and be valid, legal, and enforceable.
a. No waiver of any term or condition of this Agreement shall been forceable unless it is in writing and signed by the party against whom it is sought to be charged.
b. No failure or delay by either party in exercising any right, power or remedy will operate as a waiver of any such right, power or remedy.
c. The waiver by either party of any of the covenants, conditions, or agreements to be performed by the other or any breach thereof shall not operate or be construed as a waiver of any subsequent breach or of any other covenant, condition or agreement contained in this Agreement.
All media releases, public announcements and public disclosures by Shiji relating to this Agreement or its subject matter, including without limitation including Client on a client list of Shiji, are subject to the prior written consent of Client prior to release, which Client may withhold in its sole discretion.
a. This Agreement shall be governed by and construed in accordance with the applicable Laws of the state of Georgia.
b. Each party hereby submits itself, for the sole purpose of this Agreement and any controversy arising here under, to the exclusive jurisdiction of the state and federal courts located in Georgia, and any courts of appeal there from, and waives any objection (on the grounds of lack of jurisdiction, or forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts.
c. Each party agrees to comply with any and all Laws, applicable to it and its respective obligations and performance under this Agreement.
This Agreement may be executed in any number of counterparts (including facsimile copies), each of which shall be deemed an original, and all of which together shall constitute but one and the same instrument.
a. A party hereto shall not be liable for any loss or damage resulting from a failure to perform or timely perform its obligations under this Agreement, if such failure is the result of an event which is beyond the control of such party and cannot be reasonably avoided or counteracted; making it illegal or impossible for a party to so perform or timely perform, as applicable (each event a “Force Majeure Event ”).
b. Force Majeure Events include, but are not limited to; acts of terrorism, fire, flood, earthquake, hurricane, explosion, riot, strike or labor troubles (excluding those of the party seeking the benefit of this Section), transport restrictions, failure or delay of delivery by any supplier, war, regulations and measures of any governmental or local authority, accident, theft, or technical malfunction of systems which are part of the Internet, telecommunication infrastructure, electrical failure, or stoppage of output in or at the systems of either party hereto, outside of the control of the party seeking the benefit of this Section.
c. Should any such Force Majeure Event occur, the party suffering from such may at its own option terminate or delay performance of the Agreement without incurring any liability.
d. The foregoing notwithstanding, Client may only delay payment of Charges due to a Force Majeure Event; payment will not be permanently excused under this Section.
a. This Agreement, including any schedules or exhibits attached here to, constitute, as of the Effective Date, the entire agreement between Shiji and Client with respect to the subject matter thereof and supersedes and renders of no force and effect any prior agreements, representations, terms or conditions, whether written or verbal.
b. There are no understandings or agreements relative thereto which are not fully expressed therein, and no change, waiver or discharge is sought to been forced.
c. This Agreement may only be amended by a written, signed and executed by the parties and such amendment will be affixed hereto.
Business Requirements - Specifications ofService and Services Fees
Shiji will work with Client to collect, manage and monitor the integrity of the ClientContent. Shiji has broken down the requirements into three parts:
1. ContentTransfer / Synchronization
2. ContentManagement
3. ContentMarketing and Distribution
Content Collection
InitialContent can be collected from Client ina variety of ways and Client may use one or more of these, in its discretion:
1. Via XML web services(direct connect) - Shiji has considerable experience using web services to map content and metadata from external sources to its own database. This is ourpreferred method for accuracy, simplicity, and synchronization.
2. Via FTP – Client can regularly upload updated folders with files containing each property’s visual assets to designated ftp site. Folders will be extracted and organized into the corresponding data fields (similar to current process).
3. Via Manual Upload – Users may log into the CMS and manage Content via browser based GUI.
Content Management
The ICE CMS is a powerful solution designed specifically for the travel industry to manage a variety of visual assets with administrative rules for how content is managed and delivered to third parties and by whom. The CMS portion is optional for use by Client, as it may be provided ready for distribution from the Client’s current content management system.
In addition to standard CMS functions, like editing (add, change, delete) and categorizing (caption, image type, size, format, etc.), ICE’s CMS provides several valuable and powerful tools to help Client better manage their media assets. Below is a list of notable features of the ICE CMS:
· �� OTACompliant Image Categories
· PrecIce Meta-Tagging
· ImageOrder
· LanguageSupport
o Chinese, Dutch, English French,German, Italian, Japanese, Korean, Portuguese, Russian, Spanish
· DuplicateImage Identification
· MultipleHotel Reps per Property
· Flexibility with User Roles and Permissions
· NewSimplified GUI
Content Marketing and Distribution
Content will be marketed and made available to Distribution Partners designated by Client as set forth herein.Image files (photos) are generally provided as a regularly scheduled data dump and Rich Media files are generally delivered via a URL that allows DistributionPartners the option to customize and tailor media galleries to their brand if permitted by Client’s license terms to such Distribution Partner. Shiji also suggests that Client take advantage of the ICE Technology to showcase Rich Media on its own website(s) and social networks. Each Channel or customer has two options on how Content is retrieved:
1. Webservices (XML interface)
a. Content can be pushed/pulled by Distribution Partner adhering to specs provided
b. Different types of Content can be specified on a per-Distribution Partner basis
c. Schedule Synchronization to maintain Content up-to-date
d. Filter with any field/meta-data to retrieve only what is wanted / needed
e. User roles can be defined as to whom can access what
2. Data transfer / download
a. Content delivered to specified location (e.g., ftp, desktop, etc.)
b. Client can define what Content properties they want
c. Client can define what Content is sent and where
The data structure, and the meta-data associated with the Content will allow Distribution Partners (and Client itself) to manage the Content they want within specified parameters. Shiji provides Channels with support for nine languages – with auto-translations included for all the OTA categories as well as Shiji’s deeper sub-categories if designated by Client.
The solution outlined above may be used in part or as a total solution for Client to host and manage Content for third-party distribution. Client and Users will at all times have the ability to manage or control what Channels receive their Content (or a subset of thatContent) – for example, Content can be enabled or disabled by Hotel or image for specific Channels. Due to the nature of how images are currently distributed in the online travel space, there is noway to have total control over images once they are sent to a third-party distributor’s database and any affiliates.
Reporting
Shiji provides a variety of reports for clients to gather information on synchronization efforts with Shiji’s database and distribution efforts by Shiji to third-party Channels. Below is a list of notable reports, all of which will be provided to Client/Hotel or accessible toUsers, in addition to the Distribution Partner download report described above:
· An inventory report showing the Content uploaded for each Hotel and Client itself distinguishing published (live) and unpublished, including the upload date, and current image status (active, rejected or archived).
· A compliance report that lists any Hotel that does not meet minimum agreed upon Content requirements (image size, categorization, file type, caption, duplicate, missing GDS codes, etc.).
· An audit trail that provides a historical sequence of events for each image relating to the Hotel and onward distribution.
Rich Media Management Marketing and Distribution
Shiji will host, market and deliver RichMedia (videos, virtual tours, etc) for Client. Shiji and Client have created or will cooperate in good faith to create custom branded digital brochures foreach Client brand that can open in a specifically sized pop up window or are embedded into an i-frame. Each Hotel, with Rich Media, can access the Rich Media in one of two methods:
1. Via direct link (URL) that accesses the custom branded digital brochure
2. Via direct link that accesses a specific file (a la carte).
Each digital brochure for Client will include the following features:
· Custom windows designed by Client (or proposed by Shiji and agreed to by Client) foreach brand
· Super size option for virtual tours
· Fullscreen option for videos and Web-Shows
· Photo caption
· Mapped to Client IDs
· Link to rates and reservations page
· Inclusion of new HD-360s (full screen virtual tours) with:
o Auto-play feature
o Drop-down menu for easy navigation
o Zoom in/out feature
o Embedded Google Map
o Photo Gallery
Shiji will market and make all RichMedia for Hotels available for distribution in accordance with this Agreement. Client will be able to point any Channel interested in accessing the Rich Media to Shijito become a Distribution Partner and link a digital brochure to relevant websites.
Services Fees for Hosting Management and Distribution
The basic IT CMS structure is in place. If any additional features and/or requirements beyond those existing orin development are requested by Client, Shiji charges will be $175 per hour and the parties will execute a SOW covering such development Services. Any Services requested would be submited for prior approval and authorization by Client. The estimated costs are predicated on a one year agreement.
Set up and migration of visuals (photos,360s, videos) to Visual-ICE database
Transferring exiting data (onetime fee) $Included
· Create and test import tasks
· Run Review Import
· Manual check and download from existingCMS / Vendor
· Set up audit trail and change notification
Net Rate for ICE Portal Services and Options
PaymentTerms
Services Fees will be billed during the first week of each month for the prior month and payable upon receipt. Each monthly invoice will specify the number of Hotels using ICE Services as of every Friday ending during the prior month, detailed by product type, i.e. photos, virtual tours, videos. A Hotel and/or product added on Friday paysf or the full week. A Hotel and/or product removed before Friday does not pay for that week.
Invoices should be sent to:
Primary Contact (Name)
Contact Info
Email:
Phone:
Alt. Contact
Email:
Phone:
Hotel Content Marketing andDistribution Terms and Conditions
These are the Hotel Content Distribution Terms and Conditions applicable to any ClientContent.
1. Distribution of Client Content to Shiji Distribution Partners.
(a) Shiji is hereby authorized to arrange for the distribution, broadcast and display of any Client Content or subset of Client Content provided by theClient to Shiji for such purposes on or to any Distribution Partner designated by Client or a Hotel in accordance with the terms of this Agreement
(b) If the Client chooses to cease distributing, broadcasting or otherwise displaying any Client Content on any given Distribution Partner(s), no later than ten (10) business days following receipt of such request, Shiji will use its commercially reasonable best efforts to cease the display of such ClientContent on such Distribution Partner(s).
2. Limitation.
(a) Shiji makes no warranties or guarantees of any kind with respect to usage statistics, levels of impressions or “hits” which will be obtained by anyClient Content.
(b) Shiji reserves the right not to distribute anyClient Content that Shiji deems, in its reasonable discretion (i.e., Content deemed offensive or otherwise unacceptable), to violate the Content restrictions set forth above.
3. Service Providers: Shiji may, at its option, engage the services of Service Providers in the provision of Client Content hosting and delivery (including streaming) Services by Shiji; provided, however, that the use of Service Providers shall not relieve Shiji of any of its obligations here under and Shiji shall be responsible and liable for the acts or omissions of such Service Providers, including for indemnity purposes, in the same manner as if it had committed those acts or omissions.
4. Client Content Rights and License:
(a) By uploading or otherwise providing Shiji any Client Content for distribution, the Client expressly grants Shiji a limited, revocable, non-transfer able non-exclusive, royalty-free, worldwide, license to:
(i) copy, store, standardize (in accordance with Shiji’s standard technical specifications), optimize, crop or otherwise reformat for distribution, distribute, broadcast, perform and display via the CMS or otherwise as required to deliver designatedClient Content to designated Distribution Partners solely to the extent necessary to fulfill Shiji’s obligations, and always subject to its confidentiality requirements above, during the term of the Agreement and a further period of sixty (60) days thereafter anyClient Content provided by the Client to Shiji for distribution;
(ii) grant limited sub-licenses to Shiji Distribution Partners (including their affiliated websites) to permit them to access and copy during the term of Agreement any ClientContent provided to them by Shiji on behalf of the Client in accordance with this Agreement, and make no other use thereof, including any public display or performance; and
(iii) in the case of the GDSs(Amadeus, Galileo, Sabre and Worldspan) and of DHISCO and DerbySoft grant them limited sub- licenses to access, copy, store, modify (to the extent permitted in Shiji’s license), and sublicense such rights to third-parties to the extent permitted by Client’s agreement with such GDSs.
(b) Shiji acknowledges and agrees that it may make no modifications or alterations to the Client Content except explicitly as permitted in the above-referenced license grant.
(c) This Section 4 will survive termination of the Agreement.
Definitions
In the context of this Agreement, the parties agree that the following words or statements shall have the following meaning:
Channels All companies (including future companies) acting as intermediaries on the Internet by bringing together supply and demand of travel products, facilities and services (such as air transportation, hotel rooms, ground transfers, vacation packages, car rentals, etc.) including Global Distribution Services (GDSs),switches, and Internet travel companies.
Content
Generally, refers to the visuals (photos, 360tours, videos, logos) that would be uploading into Shiji database that pertains to the Hotel. May also include textual descriptions, meta-data, captions, geo-codes, property IDs, etc.
DistributionPartner
Any online Channel receiving content from Shiji.
Shiji MasterServices Agreement The Agreement by and between Shiji and Client that contains the master terms and conditions that govern Shiji’s services provided to Client. Each Service is more particularly described in each SOW.
Shiji (US), Inc.,a Delaware corporation (“Shiji”) Is a global services and technology company serving the needs of the travel industry, providing solutions for managing, marketing and distributing digital content and electronic marketing products and services to entities such as suppliers and distributors of travel primarily within the online travel channels.
Rich Media
Service Provider
Any third party service provider used by Shiji.(e.g. Amazon Cloud Front)
Statement of Work(SOW) The summary of the definition and specifications relating to the product and Services agreed to be purchased that meets the specifications set forth in the Agreement.
Travel Supplier The person, company or other legal entity that is a supplier in the travel business(such as airline, hotel, hotel chain, car rental company, destination management company (DMC), etc.)
Service Level Agreement (“SLA”)
The purpose of this Service LevelAgreement (“SLA ”) is to detail the additionalService level expectations, and requirements, and escalation paths for technical and related support issues arising in connection with the Distribution Partners to which this Schedule is attached.
1. Definitions
1.1. Available shall mean Services are accessible and fully functioning in accordance with allSpecifications, this Agreement and any documents reference herein
1.2. Downtime shall mean the number of minutes per month that the Services are not Available using continuous measurement.
1.2.1.PermittedDowntime shall mean the Service Availability Requirement exceptions detailed under “Availability Exceptions.”
1.2.2.UnplannedDowntim e shall mean all Downtime that is not PermittedDowntime.
1.3. Issues shall mean Availability problems with the services described in this contract, classified as Severity 1, Severity 2, and Severity 3.
1.4. MeasuredPages shall mean web pages displaying Services or through which Services are provided under the Agreement.
1.5. ServiceAvailability shall mean a percentage calculated as follows:(Uptime minutes in calendar month) divided by (total minutes in calendar month– Permitted Downtime).
1.6. ServiceAvailability Requirement shall mean an overall average ServiceAvailability of ninety-nine point ninety nine percent (99.99%), as determined on a calendar month basis for all Measured Pages.
1.7. Services shall have the meaning given it in the Agreement above.
2. Requirements
2.1. Service Availability Requirement
2.1.1.Availability. Shiji shall provide the Services in compliance with the Service Availability Requirement. Normal hours of operation for the Services are considered to be24x7x365. Any period of UnplannedDowntime will contribute to the Shiji’s monthly sum of Unplanned Downtime.
2.1.2.Capacity Objective. Measured Pages will be able to accommodate upto 27,000 simultaneous requests per minute.
2.1.3.Page Load Time Objective. Shiji will be able to provide Virtual TourContent and other Rich Media in an average response time that does not exceed6s.
3. Issue Criteria
3.1. Severity 1 Issue. A Severity 1 Issue is any problem that causesUnplanned Downtime or a primary feature (meaning any such features listed in ScheduleA to this Agreement or as otherwise agreed to by the parties) to fail.
3.2. Severity 2 Issue. A Mid-Priority Issue s an Issue that causes serious business impact, including:
3.2.1.Slow Services response time beyond the page load time objective;
3.2.2.Presentation issues that are inconvenient to a User but can be worked around; and
3.2.3.Other issues that affect less than 5%of Users
3.3. Severity 3 Issue. A Severity 3 Issue is one that is not classified as a Severity 1 Issue or a Severity 2 Issue.
4. Reporting and Escalation Procedures
4.1. Initial Reporting. Client shall report Issues to the Shiji’s Primary Technical Contact, as set forth in this Schedule D (which may be updated from time to time by Shiji upon written notice).
4.2. Reporting Requirements. When reporting an Issue, Client will promptly provide the following information:
4.2.1.The particular Service(s) that is (are)experiencing an Issue;
4.2.2.The name of the individual who is making the report;
4.2.3.An e-mail confirmation address, phone number, or comparable information to facilitate immediate communication with the individual reporting the Issue;
4.2.4.All relevant information regarding theIssue; (i.e., start time, expected end time, stop time, description of impact, etc.); and
4.2.5.A unique tracking number or other identifier.
5. Prioritization. With the input of Client, Shiji will assign each reported Issue a priority level based on the criteria set. If Shiji discovers any Severity 1 Issues while monitoring the ICE Technology, Shiji will promptly notify Client and Shiji will follow the process set forth herein.
6. Response Times.
6.1. Severity 1. Shiji will respond to a Severity 1 Issue within thirty (30) minutes after notification from Client (if Client is notable to immediately reach Shiji by telephone), submit status reports to the Client’sPrimary Technical Contact or other individual, as requested by Client, on progress every thirty (30) minutes, and use resolve the Issue as soon as possible but in any case in no less than two (2) hours.
6.2. Severity 2. Shiji will respond to a Severity 2 Issue within one (1) hour after notification from Client (if Client is not able to immediately reach Shiji by telephone), submit status reports on progress to theClient’s Primary Technical Contact or other individual, as requested byClient, every one (1) hour, and resolve the Issue within four (4) hours.
6.3. Severity 3. Shiji will respond to a Severity 3 Issue within one (1) business day after notification from Client (if Client is notable to immediately reach Shiji by telephone), submit status reports to the Client’sPrimary Technical Contact or other individual, as requested by Client, each one(1) business day, and resolve the Issue within five (5) business days.
7. Limited Remedies
7.1. Termination Rights. In the event Shiji fails to meet its ServiceAvailability Objective for one (1) calendar month during the Term (excluding the first such instance occurring in the first calendar month after the LaunchDate), Client may terminate the Agreement upon ten (10) business days’ prior written notice to Shiji. “Launch Date ”means the date that all testing of the ICE Technology is complete to Client’s satisfaction, the ICE Technology is fully functioning and available to Client(as may be indicated by test reports or distribution, as agreed to by the parties) and all Client Content has been migrated to the CMS and is accessible to Users and/or Distribution Partners, as applicable.
7.2. If Shiji fails to meet any one ResponseTime criteria more than three times in any four month period or fails to meet two or more such Response Time criteria in any six month period, Client may terminate this Agreement upon ten (10) business days’ prior written notice to Shiji.
7.3. Sole and Exclusive Remedies. THE TERMINATION RIGHTS DESCRIBED IN THIS SECTION ARE CLIENT’S SOLE AND EXCLUSIVE REMEDIES AND Shiji’s SOLE AND EXCLUSIVE LIABILITIES FOR ANY FAILURE TO MEET ANY OF THE REQUIREMENTS SET FORTH IN THIS SECTION7, EXCEPT TO THE EXTENT SUCH FAILURE CONSTITUTES A BREACH OF ANY OTHER TERM,CONDITION OR OBLIGATION APPLICABLE TO Shiji UNDER THE AGREEMENT.
8. Availability Exceptions
8.1. Unlike traditional service organizations that provide service level agreements, Internet services are routinely impacted by events that cannot be controlled and may negatively impact Service Availability. Shiji will make commercially reasonable efforts to communicate any Unplanned Downtime as soon as possible. Accordingly, the occurrence of any one of the following events will constitute an exception to Shiji’s obligation to meet theService Availability Requirement (including the Capacity Objective and PageLoad Time Objective), and will be considered Permitted Downtime:
8.1.1.An outage or slowdown that is due to the failure or non-performance of any equipment, connections, entities, individuals, or services that are not under the reasonable control of Shiji, including, but not limited to, peer-to-peer Internet service provider routing, third-party data center failure, insufficient or inadequate third-party bandwidth or technology, etc;
8.1.2.An outage or slowdown caused by a Force Majeure Event, including, in this instance, hacker attacks such as “Denial ofService”, and general Internet brown-outs, black-outs and slowdowns;
8.1.3.An outage or slowdown attributable to an increase in traffic that brings page requests above the agreed upon capacity.
8.1.4.An outage or slowdown caused by planned maintenance.
8.1.4.1.Planned maintenance may occur for no more than 2 hours each week, between the hours of 2 AM Central Time and 4 AMCentral time, Saturday and Sunday. (“MaintenanceWindow ”) During the Maintenance Window, one server will be taken out of rotation at given time and the Content delivery will continue uninterrupted.
8.1.4.2.Commercially reasonable efforts shall be made to minimize planned maintenance outages.
8.1.4.3.Should the actual outage or slow down exceed the Maintenance Window, it will be counted as Unplanned Downtime for the calendar month.
9. As part of its disaster recovery service / plan, Shiji certifies that it uses a server farm that allows Shiji to operate should one or more individual servers fail or need to be taken offline for maintenance. The Shiji database and content (including Client Content) is replicated continuously on multiple servers which are backed up nightly. The servers themselves all useRAID hard drives that provide real-time recovery in case of hard drive failure as well as SMART to predict hardware failure and allow drive replacement before data loss.
10. Shiji reserves the right to change the elements of the ICE Technology used to deliver the Services at its sole discretion provided that such change does not (a) negatively affect the Services or Client’s ability to access oruse them; or (b) otherwise cause Shiji to breach its obligations under thisAgreement.
Shiji Contacts
Primary Technical Contact
Joe McMahon
[email protected]
Tel: 954-893-6778
Cell: 617-512-8186
Customer Support Contact
Bo Yao
[email protected] / icesupport @shijigroup.com
Tel: 954-893-6778
Cell: (305) 205-2121
Account Manager Contact
To Be Determined
email
Tel: 954-893-6778
Cell:
Primary Business Contacts
Henry Woodman
[email protected]
Tel: 954-893-6778
Cell: (954) 224-9585
Regular Business Hours
