BY REGISTERING AND SIGNING UP TO THE AIRLINE OPERATIONS GROUP (AOG) HOTEL & TRANSPORT AUCTION PROGRAM AND BY INSTALLING AND USING THE MOBILE APPLICATION ("AOGtion"), THE USER HEREBY CONFIRMS THAT HE OR SHE IS AN OFFICIAL AND AUTHORIZED REPRESENTATIVE OF AN AIRLINE AND/OR AN AIRLINE HANDLING AGENT, AND THAT HE OR SHE HAS REVIEWED, UNDERSTANDS, ACKNOWLEDGES, ACCEPTS AND AGREES TO BE BOUND, BOTH PERSONALLY AND ALSO ON BEHALF OF THE BENEFICIARY AIRLINE AND/OR AN AIRLINE HANDLING AGENT, BY THE TERMS AND CONDITIONS OF THIS AGREEMENT RELATING TO THE USE OF "AOGtion" - AOG MOBILE APPLICATION FOR AIRLINE USERS (THE "AGREEMENT").
1. AIRLINE OPERATIONS GROUP CO., LTD., a company incorporated on 20 August 2001 under the laws of the Kingdom of Thailand and having its registered office at Lake Rajada Office Complex, 16th Floor, Suite 66, 193/66 Ratchadapisek Road, Klongtoey, Bangkok 10110 Thailand ("AOG"), and
2. THE USER of the AOG's Hotel & Transport Mobile Application (App) Auction program "AOGtion", who is an official and authorized representative of an airline and/or airline handling agent, and who is acting on behalf of the beneficiary airline(s) and/or handling agent ("Airline User").
AOG and the Airline User are a "Party" to this Agreement and are collectively referred to as the "Parties".
(i) AOG operates and controls an online mobile application accommodation reservation system and program for delayed passengers ("the AOGtion System"), which is provided to Airlines, Airline Handling Agents and Airline Users at AOG's absolute discretion and through which:
a) participating Accommodations (collectively the "Hotels", each a "Hotel" or "Affiliate") can make their rooms available for last minute bookings;
b) participating Transports (collectively the "Transports", each a "Transport" or "Affiliate") can make their vehicles available for last minute bookings; and
c) Airline Users can make last minute bookings for such Hotel and Transport (the "Service") through AOG's online auction mobile application accommodation reservation system on a "real-time" basis.
(ii) AOG maintains and exploits this AOG Application and/or its Websites (the "Application and/or Websites"), and also provides the Service and links to the Service on the Application and/or Websites of third parties;
(iii) the Affiliate and AOG wish to make the Service available to Airline User on AOG's "AOGtion" System and/or Application and/or Website(s) and in such form, and on such terms and conditions, as set out in this Agreement.
(iv) AOG may change this Application and/or Website at any time in its absolute discretion, including, but not limited to, suspending access to the Application and/or Website, inserting advertising in the Application and/or Website and limiting the number of hotels or rooms, and rates that can be accessed using the Application and/or Website.
(v) Airline User's permission to use this Application and/or Website as set out in this Agreement is conditional upon Airline User's compliance with these terms and conditions and is subject to the following restrictions:
(a) Airline User must not access or in any way exploit any underlying data, code, content or other material provided by AOG in conjunction with this Application and/or Website.
(b) Airline User must ensure that any bookings concluded on this Application and/or Website is concluded between Airline User and AOG's Affiliates and not via any unauthorized intermediary or third party.
(c) Airline User must not use this Application and/or Website in any way for Airline User's own commercial gain.
(d) Airline User must not edit, remove, alter, tamper with, or in any way change this Application and/or Website or any part of it.
(e) Airline User must not (and may not authorize others to) copy, distribute, communicate to the public, sell, rent, lend or otherwise use this Application and/or Website.
(f) Airline User must comply with all laws and regulations when using this Application and/or Website and must not use it for illegal or illegitimate purposes.
(g) Airline User must not use this Application and/or Website in any manner whatsoever that may prejudice or damage AOG's business.
(vi) Airline User acknowledges and agrees that any hotel or pricing information provided on this Application and/or Website is made available by AOG's Affiliates, suppliers and partners or has been gathered from public domain sources. By using this Application and/or Website, Airline User agree that price quotes made for Airline User or on Airline User's behalf using AOG's live update facility may be displayed to other users of this Application and/or Website. Room availability or price quotes are therefore subject to change without notice based on live bookings made by other users of this Application and/or Website. AOG recommends that Airline User read the terms and conditions of use of any Application and/or Website carefully before purchasing rooms or transportation services offered or relying on information contained in them.
(vii) All intellectual property rights including, but not limited to, copyright (including copyright in computer software), patents, trademarks or business names, design rights, database rights, know-how, trade secrets and rights of confidence in this Application and/or Website (together, the "Intellectual Property Rights") are owned or licensed by AOG. Airline User acknowledges that by using this Application and/or Website, Airline User will not acquire any right or interest in the Application and/or Website or the Intellectual Property Rights.
(viii) Airline User shall not:
(a) Remove, alter or replace any notices of authorship, trademarks, business names, logos or other designations of origin on this Application and/or Website or pass off or attempt to pass off this Application and/or Website as the product of anyone other than AOG.
(b) Use any automated computer program or application to scan, copy, index, sort or otherwise exploit this Application and/or Website or part thereof.
(ix) Airline User acknowledges that this Application and/or Website include content, pricing information, data and brand names are owned by AOG's Affiliates or partners ("Partner Materials").
(x) By using this Application and/or Website, Airline User agrees not to reverse-engineer any underlying software or to circumvent any technological protections embodied in it.
(xi) Airline User shall ensure that no disruptive computer program code, virus, 'denial of service' or 'spam' attack, worm, Trojan horse, authorization key, license control utility or software lock is introduced by Airline User or anyone authorized by Airline User onto this Application and/or Website.
(xii) By using the AOG website and hence accepting these terms and conditions, Airline User warrant and represent to AOG that:
(a) Airline User will not use this Application and/or Website other than in accordance with these terms and conditions.
(b) Airline User will not use this Application and/or Website in any manner which may cause damage to AOG or bring AOG into disrepute.
(c) Airline User's use of this Application and/or Website will not infringe the rights of any third party.
(xiii) Airline User's use of this Application and/or Website is entirely at Airline User's own risk. While AOG will endeavor to ensure that the content of this Application and/or Website is up-to-date and accurate, AOG cannot guarantee the reliability or accuracy of the content contained in it and Airline User should not rely on such content. AOG makes no representations and does not warrant to Airline User that this Application and/or Website:
(a) is accurate, complete or up-to-date;
(b) will always be available;
(xiv) Although there is currently no charge for the use of this Application and/or Website, AOG expressly reserves the right to charge for use of the Application and/or Website or any part of it at a later date.
(xv) AOG has no responsibility whatsoever for any arrangements Airline User makes with any third party as a result of Airline User's use of this Application and/or Website. In particular, AOG shall not be responsible for the transmission of information or financial transactions between Airline User and any Affiliates or third party provider, partners or suppliers with whom Airline User chooses to deal. Airline User shall be solely responsible for all contractual arrangements, payments due and any associated transmission of funds on the terms Airline User agree with any such AOG Affiliates, third party providers, partners or suppliers.
(xvi) Application and/or Website from territories where its contents are illegal or unlawful are prohibited. If Airline User chooses to access this Application and/or Website from locations outside Thailand and/or the United States, Airline User does so on Airline User's own initiative and is responsible for compliance with local laws.
In addition to terms defined elsewhere in this Agreement, the following definitions apply throughout this Agreement, unless the contrary intention appears:"Application" shall mean the software provided by AOG to offer AOG's and its affiliates' and/or partners' services, to be used on Apple iOS and Android OS devices and any upgrades from time to time and any other software or documentation which enables the use of the Application.
This Agreement is not intended, nor should anything herein or in any of the arrangements contemplated herein, to be construed as to create a joint venture or a relationship of partners, partnership or principal and agent between or among the Parties.
Service currently provided at NO COST to Airline User
2.1. For the term of this Agreement, Parties have agreed that the Service shall be made available by AOG at no cost to the Airline User as set out in Airline User Registration Form.
2.2 When a booking is made by an Airline User through the AOGtion System, AOG shall do its best to transmit the relevant reservation details from the Airline User who has completed a booking (e.g. the date of arrival, number of nights, room type, group/guest name) and to confirm the bookings for the Hotel and Transport requirements as soon as possible based on the response from its Affiliates, and expects to receive from the Airline User or his/her representative subsequent confirmation and/or MCO or STPC vouchers thereof that are relevant to this specific booking.
2.3 The Service shall include customer services to and for the benefit of the Airline User and/or beneficiary Airline(s). The Airline User agrees to promptly provide AOG and its Affiliates with the necessary MCO or STPC vouchers and make payments that are relevant to each specific booking.
2.4 Airline User shall refer and/or forward all customer service related issues and questions in respect of the Service, the booking (including any amendment or cancellation of the booking) and all other relevant (payment) issues, complaints and questions directly to the Hotel and/or Transport providers. AOG does not provide any further services in this respect.
AOG hereby grants Airline User a non-exclusive, revocable, restricted, royalty free and worldwide right and license (or sublicense as applicable):
(a) to display such elements of the AOG Data and such further information of the Hotel and Transport providers' bids on the Airline User's personal digital devices including, but not limited to, smart phones, iPads, etc., as provided or made available to AOG by the Affiliate;
(b) to promote and market the Service subject to the terms set out in this Agreement.
3.2.1 Airline User shall not (i) be entitled to sublicense the rights granted to it under Clause 3.1, or (ii) sublicense the Link or Connection to any third party, or (iii) hyperlink to the AOG Application and/or Website via, or in collaboration with (the Application and/or Websites of), any third party.
3.2.2 Airline User shall not directly or indirectly be entitled to sell, use, transfer, (sub) license, communicate, disclose, make available, allow access to, divulge or otherwise disseminate the AOG Data or the Content (i) to any third party, (ii) for price/availability comparison purposes, sites, reviews or investigations, (iii) for any other purpose other than booking last minute Hotel and Transport through) the Service.
4.1.1 Subject to the terms of this Agreement, the Airline User agrees to use commercially reasonable endeavors to (i) customize the AOG Mobile Application and/or Application and/or Website(s) and integrate the Link, Connections and/or the Micro Site in such a way as to generate as much traffic as possible to the AOG Application and/or Website, and (ii) promote and market the option to book Hotels and Transports for delayed passengers at the last minute on AOG's Mobile Application and/or Application and/or Website(s) within its commercial and internal network and for this purpose shall make its distribution network and channels (e.g. its internet and intranet) available.
4.1.2 The Airline User agrees not to take or omit to take any action which may affect AOG's relationship with the Affiliates. The Airline User agrees not to cause or permit to be done anything which may cause AOG to be excluded from the process of booking with any Hotel or Transports, moreover, the Airline User shall not in a negative or detrimental way speak of (i.e. badmouth) or comment on (the business of) AOG (or its staff) and shall not persuade, induce or attempt to induce any Airline, Hotel or Transport to terminate its contract with or reduce its dealings and business with AOG.
4.1.3 The Airline User agrees not to communicate with any Affiliates in respect of (consumed) bookings made through the AOGtion System or for any customer service in respect of such bookings made through the AOGtion System or consumed.
4.1.4 The Airline User shall not programmatically evaluate and extract information from any part of the AOG Mobile Application and/or AOG Application and/or Website (e.g. screen scrape) or attempt to do so and shall not, by any means, including, but not limited to, (a) mechanical, electronic, photocopying, recording or otherwise, copy, reproduce, modify, alter, adapt, disassemble, reverse engineer, scrape, or otherwise determine the source code of (or underlying ideas, algorithms, structure or organization of) the links or any content contained on or services provided by the AOG Application and/or Website or attempt to do so; (b) upload (i) any virus, Trojan horse, worm, time bomb, robot commands or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (c) make any representations to visitors, to the general public or to any other party related in any way to the Company, the services, the links or the Site of AOG. Any violation of the aforesaid provisions or otherwise (attempt to) cause detriment to AOG and the AOG Application and/or Website will lead to the Airline User being terminated from the program and/or subject to legal charges.
4.1.5 The Airline User shall not make any static copy of the Content or any part of the AOG Application and/or Website.
4.1.6 AOG will provide the Airline User with a unique link to the Affiliate partner of AOG (the "Partner Center"), user ID and password which allows the Airline User to monitor the booking of accommodations and transportation through AOG's mobile application and/or Application and/or Website(s) and all relevant management information made available by AOG online. The Airline User shall safeguard and keep the user ID and password confidential and safely stored and not disclose it to any person(s). The Airline User shall immediately notify AOG of any (suspected) security breach or improper use.
4.1.7 The Airline User agrees and acknowledges that the restrictive covenants, undertakings, commitments, obligations and restrictions set out in this Clause 4 are reasonable and of material importance to AOG, in particular for (i) its willingness to enter into this Agreement with the Airline User and make the Service, the Content and the AOG Intellectual Property Rights (directly or indirectly) available to the Airline User, and (ii) the protection of goodwill, product, service and (market) reputation of AOG. Furthermore, the Airline User agrees and acknowledges that all covenants, undertakings, commitments, warranties, obligations and restrictions set out in this Clause 4 shall (a) be promptly, duly and diligently complied with by the Airline User, and (b) also apply in respect of the companies within the Airline User and its Handling Agent Group and the Airline User shall procure, warrant and undertake that the airlines within the Airline User's Handling Agent Group shall observe, adhere to, comply with and act in accordance with the terms and conditions set out in this Clause 4.
In order to protect the product, service, brand and goodwill of AOG, the Airline User hereby covenants, undertakes and warrants that it shall not in any way imitate or copy the AOG mobile application or Application and/or Websites (in general or in respect of certain (new) features, pages, form, composition or aspects).
4.3.1 The Airline User acknowledges that AOG and/or its licensors shall retain ownership of all rights, title and interest in and to all Intellectual Property Rights of AOG or embodied in the AOG mobile application and Application and/or Website, including (but not limited to) the AOG logo, the Content and the AOG Data. Nothing contained in this Agreement shall be deemed to transfer any such right, title or interest to the Airline User in any way.
4.3.2 The Airline User shall not disclose, integrate, include, use, combine, exploit, incorporate or otherwise make the Content and AOG Data (or any part thereof) available (a) with its own content and/or the content of any AOG Competitor (including the Hotels), or (b) to or for the benefit of (i) itself (save for enabling the Service and the AOGtion System in accordance with the terms of this Agreement), or (ii) any AOG Competitor (including the Hotels) (whether for the promotion of, marketing of, reference to, promotion of, advertising of or otherwise in the interest of or to such party), or (c) for any other purpose or in any other manner and/or on or through Third Party Platforms except as expressly provided for in this Agreement. The Airline User shall not amend, alter, modify, distort, create derivative and/or new works based on and/or derived from the Content and the Content shall not include a (direct or indirect) link, reference, click-through or reference to (the Application and/or Website of) a AOG Competitor (including the Hotels).
4.3.3 By entering into this Agreement, AOG does not (explicitly or tacitly) waive or forfeit any of its rights to which it is entitled by any law, contract or otherwise (now or in the future) in respect of the AOG Intellectual Property Rights vis-à-vis the Airline User or other third parties.
4.4.1 The Airline User shall not use, exploit or otherwise employ, directly or indirectly, any Third Party Platforms, to seek to avoid or circumvent its covenants, obligations or restrictions under this Agreement or those restrictions or covenants of which the Airline User could reasonably expect that any such actions fall under the scope of this Agreement.
4.4.2 The Airline User shall not exploit or use the Content for any purpose or in any manner and/or on or through Third Party Platforms except as expressly provided for in this Agreement.
4.4.3 During the term of this Agreement (and continuing thereafter in respect of the AOG Data) the Airline User shall immediately comply with any request made by AOG to adhere to and comply with this Clause 4.4, failing which AOG can terminate with immediate effect and without prejudice to its legal and contractual remedies.
The Airline User agrees not to contact, solicit or accept any Affiliates as its business partner for bookings or reservations (directly or indirectly) made on, using or through AOG's mobile application and/or Application and/or Website(s).
4.6.1 The Rates and Availability Data (collectively, the "Rates and Availability Data") will be made available in accordance with the Airline User Registration Form and such further terms and conditions as made available by AOG.
4.6.2 The Rates and Availability Data does not include, and the Airline User shall not be entitled to use, copy, refer to or include on its Application and/or Websites where the Price Comparison is available, the AOG Data and Content from AOG Application and/or Website or web servers or a third party (Application and/or Website) with whom AOG has a contractual relationship to provide the Content.
4.7.1 Parties agree and acknowledge that in the event of an (alleged or threatening) infringement or breach by the Airline User of its obligations under this Clause 4, the burden of proof is carried by the Airline User. In other words, AOG carries the benefit of assumption and the Airline User needs to provide and deliver sufficient and satisfactory evidence (i.e. conclusive and irrefutable) in order to defend or reject a claim.
4.7.2 In the event that a AOG mobile application and/or Application and/or Website is linked to the Airline User Application and/or Website(s) or the Airline User's personal digital devices or in the event of a (threatening) breach of the Spamming Regulations by the Airline User, the Airline User shall promptly notify AOG of such (threatening) breach after becoming aware of such breach, and upon first request of AOG promptly implement, comply with and abide by all of the terms, restrictions and prohibitions set out in this Agreement and revise or re-install the Airline User mobile application as requested by AOG.
4.7.3 The Airline User agrees and acknowledges that pending any compliance or implementation of the reasonable requests made by AOG or in the event that the Airline User does not promptly comply with or adhere to all such requests of AOG under or pursuant to this Clause 4, AOG shall be entitled to postpone or suspend its obligations under this Agreement (including the offer of the Service, System and the AOG Data) or immediately terminate this Agreement, without prejudice to AOG's rights under this Agreement or otherwise.
4.7.4 In the event of a breach of the covenants, undertakings, restrictions, obligations and/or warranties set out under this Clause 4 by or attributable to the Airline User, AOG shall be entitled to exercise the actions and rights, notwithstanding the remedies and actions for specific performance, damage compensation or injunctive or equitable relief available by law or contract.
5.1.1 A "Mobile Application" will be provided to Airline User that, once installed, will link to AOG's Hotel and Transport Affiliates, which has been pre-approved and activated by AOG. The Mobile Application will be accessible by the Airline User using the user name and password provided by AOG.
5.1.2 AOG's software tracks the Airlines' room usage through the Airline User's user name and password provided by AOG for 365 days. It should enable the Airline User to have direct access to AOG's Application and/or Websites to pull up daily, monthly, quarterly or yearly reports on a real-time basis.
5.1.3 AOG will make commercially reasonable efforts to ensure that all AOG Departures are tracked and reported by the Affiliate.
AOG reserves the right to change or alter the Default Airline User Agreement on the first day of any month. In such a case, a notice may be posted on AOG's Application and/or Website, and/or an e-mail sent to the Airline User, based on the e-mail address provided by the Airline User through the Airline User Registration Form. Notification shall occur at least 15 days prior to any change. AOG shall have no responsibility to ensure that communications about changes in the program are received by the Airline User. In case of disagreement, the Airline User's sole recourse shall be to end its participation in the program.
6.1.1. AOG hereby represents and warrants to Airline User that for the term of this Agreement, the Airline User will have reasonable rights, power and authority to operate and use AOG's mobile application.
6.1.2 The Airline User shall not (i) violate Spamming Regulations, public policy and morals, or (ii) contain or display any inappropriate, improper or unlawful content, reference, material, information, links or banners (e.g. in respect of pornography, racism and the like), defamatory statements, elements which violate the privacy of third parties or are abusive, offensive or obscene, (iii) copy or resemble the design, domain names (including sub-domains), look and feel of, or create the impression that it is part of the AOG Application and/or Website or any of AOG's affiliates' or subsidiaries' Application and/or Websites; (iv) advocate discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; (v) promote or engage in illegal activities; (vi) violate intellectual property rights of third parties; (vii) contain or promote deceptive information or promote gambling; or (viii) otherwise be of an inappropriate nature. Any violation of the aforesaid provisions may lead to the Airline User being terminated forthwith from the program.
6.1.3 The Airline User is an authorized representative of an airline or airline handling agent who holds the authorizations necessary for conducting, carrying out and continuing its operations and business, and for the booking and payment of hotel rooms and/or transportation services on behalf of such an airline or airline handling agent.
The Airline User or agent's liability in a contract with a third party arises from the authority given the agent to enter into legally binding contracts on the airline or airline handling agent's behalf. The agent's authority can be either actual (express or implied) or apparent.
6.2.1 Express Authority: Is embodied in that the airline or airline handling agent has engaged the agent to do the work. Express authority can be given orally, or in writing. A supervisor or manager of an airline or airline handling agent, when acting for the airline in an ordinary business situation, is not required to obtain written authority from the airline. In addition, the equal dignity rule does not apply when an agent acts in the presence of an airline or when the agent's act of signing is merely perfunctory.
6.2.2 Implied Authority: is conferred by custom, can be inferred from the position the agent occupies, or is implied by virtue of being reasonably necessary to carry out express authority. Because implied authority is conferred on the basis of custom, it is important for third persons, such as Affiliate Hotels and Transportation providers, to be familiar with the custom of the particular trade. Courts have developed rules to determine what authority is general, implied authority is authority customarily associated with the position occupied by the agent or authority that can be inferred from the express authority given to the agent to fully his or her duties.
6.2.3 Apparent Authority and Estoppel: Actual authority (express or implied) arises from what the airline or airline handling agent manifests to the agent. An agent has apparent authority when the airline or airline handling agent, by either word or action, causes a third party to believe that the agent has authority to act, even though the agent has no express or implied authority. If the third party changes his or her position in reliance on the principal's representations, the airline or airline handling agent may be estopped (prevented) from denying that the agent had authority.
6.2.4 Apparent Authority through a Pattern of Conduct. When an Airline User's actions over time lead a third party to believe that an agency relationship exists, an agency by estoppel may arise based on apparent authority.
6.2.5 Apparent Authority through an Agent's Possession of Property. An agency by estoppel may arise in other situations based on apparent authority. If the airline or airline handling agent has granted the agent with both possession and apparent management or operational rights, the agent has very broad powers and can deal with the purchase as if she or he were the decision maker.6.2.6 Emergency Powers: When an unforeseen emergency demands action by the agent to protect or preserve the property and rights of the airline or airline handling agent, the safety and rights of the passengers, such as during a major delay, aircraft malfunction, security situation, airport closure, etc. but the agent is unable to communicate with the airline or airline handling agent, the agent has emergency power.
6.3.1 Each Party represents and warrants to the other Party that for the term of this Agreement:
(i) it has the full corporate power and authority to enter into and perform its obligations under this Agreement;
(ii) it has taken all corporate action required by it to authorize the execution and performance of this Agreement;
(iii) this Agreement constitutes legal valid and binding obligations of that Party in accordance with its terms.
6.3.2 Each Party shall use its commercially reasonable efforts to protect and safeguard its Application and/or Website(s).
6.3.3 Airline User is an employee, supervisor, manager or handling agent of the airline who initiates the requirement for rooms and vehicle by submitting an auction request through AOG's mobile application. The Airline User declares that he/she is a current employee, supervisor, manager or handling agent of the airline it is granted the Authority or fiscal responsibility to conduct the requisition for the provision of hotel and transportation services and payments thereof.
6.3.4 An Airline User that is not authorized to contract on behalf of the airline or airline handling agent, who uses an unauthorized procurement method, or exceeds their delegated authority, may be personally responsible for payment of charges incurred by an unauthorized purchase of goods or services.
6.3.5 Methods Of Purchase And Purchasing Authority May Be Delegated Via The Following Methods:
6.3.5 a. Miscellaneous Charge Order (MCO). The MCO is voucher issued by the airline or airline handling agent to Suppliers for the purchase of low-dollar value goods in person, by telephone, facsimile, internet or mail order in accordance with the Airport Delay Standard Operating Procedures or guidelines. Departments can set lower single and monthly limits for each delay.
6.3.5 b. Direct Pay. Direct expense payments are made to a vendor for goods purchased by the airline or airline handling agent without prior purchase order or encumbrance (e.g. petty cash). Reimbursements may be processed through direct expense payment, subject to the direct payment policy, when there is no added value to obtaining an MCO or purchase order.
6.3.5 c. Stopover Paid By Carriers (STPC). The STPC is issued by airline or airline handling agents as purchase orders. The STPC is issued in accordance with dollar delegations approved for the specific Airline User.
6.3.5 d. Ad hoc or Monthly Billing. Airline or airline handling agent agrees to pay Affiliate Hotel or Transport Supplier within fifteen (15) days of receipt of Statement of Invoice from the Supplier. Affiliate Hotel or Transport Supplier may require airline or airline handling agent to obtain credit facilities and Airline User to be pre-approved as an authorized buyer of the services provided by the Affiliate Hotel or Transport Suppliers.
6.3.6 Prompt Payment. All invoices should be paid in accordance with the guidance on timing of payments specified by the Affiliate Hotel or Transport Suppliers.
6.4.1 Unless expressly provided in this Agreement, neither Party makes any representation or warranty, expressed or implied, in connection with the subject matter of this Agreement and hereby disclaims any and all implied warranties, including all implied warranties of merchantability or fitness for a particular purpose regarding such subject matter. AOG provides the Service on an "as is" and "as available"" basis and does not guarantee uptime.
6.4.2 Each Party acknowledges the difficulties inherent to the use of the Internet; in particular, varying speeds and congestion in the network can cause interruptions and difficulties in accessing an Application and/or Website. Each Party excludes any and all liability in respect of the other Party which is related to any (temporary (scheduled or unscheduled) and/or partial or wholly) breakdown or downtime (for maintenance, updates or otherwise) of the Application and/or Websites, the Partner Center, the AOGtion System and/or the Service.
The Airline User shall be liable towards, and compensate, indemnify and hold AOG harmless for and against any direct damages, losses (excluding any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or any special, indirect or consequential losses and/or damages), liabilities, obligations, costs, claims, claims of any kind, interest, penalties, legal proceedings and expenses (including, without limitation, reasonable attorneys' fees and expenses) actually paid, suffered or incurred by AOG pursuant to:
(i) a breach of this Agreement by the Airline User, or
(ii) any claim from any third party based on any (alleged) infringement of the third party's Intellectual Property Right by the Airline User.
In the event of a third party claim, the indemnified Party shall promptly notify the other Party and Parties shall act in good faith and use their commercially reasonable efforts to consult, cooperate and assist each other in the defense and/or settlement of such claim, whereas the indemnifying Party shall be entitled to take over a claim and assume the defense and settlement (in consultation and agreement with the indemnified Party and with due observance of both Parties' interests), and neither Party shall make any admission, file any papers, consent to the entry of any judgment or enter into any compromise or settlement without the prior written consent of the other Party (which shall not unreasonably be withheld, delayed or conditioned).
The terms and conditions of this Agreement are personal to Airline User. Airline User shall not be entitled to assign this Agreement in whole or in part to any third party.
7.4.1 AOG will use reasonable efforts to make the Application available at all times. However, Airline User acknowledges that the Application is provided over the internet and mobile networks, and so the quality and availability of the Application may be affected by factors outside of AOG's reasonable control.
7.4.2 AOG, its group of companies and sub-contractors do not accept any responsibility whatsoever for unavailability of the Application, or any difficulty or inability to download or access content or any other communication system failure which may result in the Application being unavailable.
7.4.3 AOG will not be responsible for any support or maintenance for the Application.
7.4.4 In no event will AOG be liable for any direct, indirect, special, punitive, exemplary or consequential losses or damages of any kind arising out of Airline Users' use or access to the Application, including loss of profit or the like whether or not in the contemplation of the parties, whether based on breach of contract, tort (including negligence), product liability or otherwise.
7.4.5 AOG is not liable to Airline User for any damage or alteration to Airline Users' equipment including but not limited to computer equipment, handheld device or mobile telephones as a result of the installation or use of the Application.
8.1.1 Unless agreed otherwise, this Agreement shall commence on the date hereof for indefinite period of time.
8.1.2 AOG may terminate use of the Application at any time by giving notice of termination to Airline User.
8.1.3 Upon any termination, (a) the rights and licenses granted to Airline User herein shall terminate; (b) Airline User must cease all use of the Software; and (c) Airline User shall immediately delete any information received or used by Airline User which relates to the Application and/or Application and/or Website, including deleting any cookies and, where requested by AOG, confirm in writing that Airline User has done so.
8.1.4 Upon termination and save as set out otherwise, this Agreement shall absolutely and entirely terminate and cease to have effect without prejudice to Party's rights and remedies in respect of an indemnification or a breach by the other party of this Agreement.
8.1.5 Clause 4.1.2, 4.1.5, 4.1.6, 4.1.7, 4.2, 4.3, 4.4.1, 9, 10, 11 and 12 shall survive termination of this Agreement.
AOG reserves the right to suspend this Agreement and Airline Users' ability to utilize AOG's services at any time, with or without notice and without incurring any liability to Airline User whatsoever, in case no Materialized Transactions have occurred in a period of 12 consecutive months prior.
The AOGtion systems, books and records of AOG (including Extranet, faxes and/or emails) shall be considered conclusive evidence in respect of the bookings made through AOG under this Agreement.
Parties understand and agree that in the performance of this Agreement, each Party may have access to or may be exposed to, directly or indirectly, confidential and sensitive information of the other party (the "Confidential Information"). Confidential Information includes Customer Data, transaction volume, marketing and business plans, business, financial, technical and operational information, usage statistics, ranking data, information in respect of rate, product and availability parity, pricing policies, conversion data and volume of click-troughs, and other related statistics, personal data of Guests, any software or information regarding software provided or used by AOG in connection with this Agreement, the terms of this Agreement and such other non-public information that either a disclosing party designates as being private or confidential or of which a receiving party should reasonably know that it should be treated as private and confidential.
Each Party agrees that: (i) all Confidential Information shall remain the exclusive property of the disclosing party and receiving party shall not use any Confidential Information for any purpose except in furtherance of this Agreement, (ii) it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties and agents (the "Permitted Persons") to maintain, the confidentiality and secrecy of the Confidential Information, (iii) it shall disclose Confidential Information only to those Permitted Persons and who need to know such information in furtherance of this Agreement, (iv) it shall not, and shall use prudent methods to ensure that Permitted Persons do not (a) copy, publish, transmit, reproduce, divulge, disclose or make the Confidential Information available to any third party, or (b) use or store it in an unprotected retrieval system or data base (other than pursuant to the terms hereof), and (v) it shall return or destroy all hard and soft copies of Confidential Information upon written request of the other Party.
Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it is or becomes part of the public domain through no act or omission on the part of the receiving party, or is required to be disclosed pursuant to law, court order, subpoena or governmental authority.
Parties shall use commercially reasonable efforts to safeguard the confidentiality and privacy of Customer Data and to protect it from unauthorized use or release. Parties agree to comply with applicable laws on the processing of personal data and the protection of privacy. The Parties will at all time use reasonable and appropriate security measures to prevent corruption of and unauthorized access to Customer Data. Such measures will include, among other things, data encryption and channel encryption. Where relevant, the Airline User must notify AOG of any security breach as promptly as possible (not later than 1 day after discovering the breach).
Neither Party shall create, publish, distribute, or permit any written materials, which make reference to the other Party without first submitting to the other party such material and receiving prior written consent from the non-submitting party.
In order to use the Application, Airline Users are required to have a compatible mobile telephone or handheld device, internet access, and the necessary minimum specifications ("Software Requirements"). The Software Requirements are as follows: Apple iOS devices and Android OS devices running the latest programs. The version of the Application software must be upgraded by Airline User from time to time to add support for new functions and services.
11.2.1 All notices and communications to AOG must be in English, in writing, and sent by facsimile or via an internationally recognized overnight air courier to the [applicable facsimile number or] address set out in this Agreement. Notices are deemed delivered and received [upon successful facsimile transmission or] one business day after the date of delivery by the aforementioned recognized overnight air courier. Copies may be sent by e-mail to AOG to be used as a reference.Correspondence to AOG must be addressed to:
Any notice or communication to be provided to the Airline User under this Agreement shall and can also validly be sent to the email address as provided by the Airline User in the Airline User Registration Form or in AOG's profile.
11.2.2 The Airline User shall clearly include in all correspondence (e.g. in the reference or subject line) its assigned Airline User ID number or user name, failing which Airline User shall accept sole responsibility for possible delays.
11.3.1 Each Party shall, at its own costs and expenses, use all reasonable efforts to take, or cause to be taken, all appropriate action, do or cause to be done all things necessary, proper or advisable under applicable law or upon reasonable request of AOG, and execute and deliver such instruments of assignment, transfer, deeds, documents and other papers, as may be reasonably required to carry out the provisions of this Agreement or perform under or in accordance with the Agreement.
11.4.1 This Agreement (including the schedules, annexes and appendixes, which form an integral part of this Agreement) constitutes the entire agreement and understanding of the Parties with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, non-binding offers, undertakings or statements regarding such subject matter.
11.5.1 Neither party shall be entitled to assign, transfer, encumber any of its rights and/or the obligations under this Agreement without the prior written consent of the other party, provided that AOG may assign, transfer, encumber any of its rights and/or the obligations under this Agreement (in whole or in part or from time to time) to an affiliated company without the prior written consent of the Airline User.
11.5.2 This Agreement is concluded for the benefit of the Parties and their respective successors and permitted assigns, and nothing herein is intended to or shall implicitly confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement, except to the extent explicitly stated otherwise in this Agreement.
If any provision of this Agreement is or becomes invalid or non-binding, the Parties shall remain bound by all other provisions hereof. In that event, the Parties shall replace the invalid or non-binding provision by provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
This is the version 2013.1 of the Agreement. Unless agreed otherwise, AOG reserves the right modify any of the terms and conditions contained in this Agreement at any time and at AOG's sole discretion, by posting a change notice or a new Agreement on the Partner Center on the first of any month. Modifications will take effect on the first of the following month. IF ANY MODIFICATION IS UNACCEPTABLE TO THE AIRLINE USER, THE AIRLINE USER'S ONLY RECOURSE IS TO TERMINATE THE AGREEMENT. IT IS THE AIRLINE USER'S RESPONSIBILITY TO CHECK THE APPLICATION AND/OR WEBSITE AFTER THE 1ST OF ANY MONTH FOR CHANGES IN THE PROGRAM OR AGREEMENT. IF THE AIRLINE USER CANNOT LOCATE THE AGREEMENT ON THE PARTNER CENTER, IT IS THE AIRLINE USER'S RESPONSIBILITY TO NOTIFY AOG AND AOG SHALL HAVE 15 DAYS TO PROVIDE A COPY TO THE AIRLINE USER. CONTINUING PARTICIPATION IN THE PROGRAM, FOLLOWING POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE PARTNER CENTER, WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE. SHOULD AOG STOP PROVIDING THE SERVICES TO THE AIRLINE USER, THIS AGREEMENT SHALL IMMEDIATELY TERMINATE WITH OR WITHOUT NOTICE TO THE AIRLINE USER.
By registering and signing up to AOGtion, the AOG Mobile Application Auction program, as an Airline User, the Airline User agrees, acknowledges and accepts the terms and conditions of this Agreement, including the provisions related to modifications to this Agreement.
Neither Party shall have any liability or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances (force majeure events) beyond the control of the Party whose performance is being affected, including but not limited to natural disasters, governmental or regulatory actions or restrictions, sanctions, embargoes, hostilities of any kind, wars, civil wars, terrorist acts, riots, insurrections, nuclear incidents, EMP, essential utilities failure, etc. A force majeure event shall not prevent the Parties from exercising their right to terminate this Agreement in accordance with the relevant provisions set out herein.
THE AGREEMENT HAS BEEN READ AND ALL THE TERMS AND CONDITIONS HAVE BEEN AGREED TO BY THE AIRLINE USER. THE AIRLINE USER UNDERSTANDS THAT AOG MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT. THE AIRLINE USER HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATION IN THE PROGRAM AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. THE AIRLINE USER EXPLICITLY AGREES THAT ELECTRONIC ACCEPTANCE OF THIS AGREEMENT AND ITS TERMS AND CONDITIONS, INCLUDING THOSE RELATED TO MODIFICATIONS, IS VALID, BINDING AND ENFORCEABLE.
All headings in this Agreement are for convenience only and shall not affect the construction or interpretation of this Agreement. Words denoting the singular shall include the plural and vice versa. Words denoting any gender shall include all genders. Words denoting persons shall include corporations and vice versa.
Any failure by AOG to enforce any of the terms of these terms and conditions shall not be considered to be a waiver of them or the right to subsequently enforce any terms of these terms and conditions.
Airline User acknowledge that the unauthorized use of AOG's Application and/or Application and/or Website may result in irreparable damage and injury to AOG and/or its affiliates for which monetary damages would be inadequate. Consequently, in the event of such unauthorized use, AOG and its affiliates shall have the right, in addition to any other legal remedies available to them, to seek an immediate injunction against Airline User prohibiting any further use of this Application and/or Application and/or Website. Nothing in these terms and conditions shall be interpreted to limit the remedies available pursuant to statutory or other legal authority that AOG and/or its affiliates may have.
This Agreement shall be exclusively governed by and construed in accordance with the laws of the United States and/or the country where the Airline User utilizes the services or resides. The Parties will in any event attempt to settle their disputes in an amicable manner out of court by first conducting good faith discussions and negotiations.
Irrespective of the country from which Airline User accesses or uses the Application, Airline User's use of this Application is governed in accordance with the laws of the United States to the non-exclusive jurisdiction of whose courts Airline User, Airline and/or Airline Handling Agent are deemed to have submitted. As such, any disputes arising out or in connection with this Agreement may exclusively be submitted to and dealt with by a competent court in the United States and/or the country where the Airline User utilizes the services, at AOG's sole discretion, without regard to conflict of laws or rules.
Prevailing Language This Agreement is drawn up in the English language. Any translation into another language is for convenience and information purposes only. In case of conflict between the English language version and such translation, the English language version shall prevail.