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- ADS - Terms and Conditions for Analytic Data Services
- TÉRMINOS Y CONDICIONES PARA LOS HOTELES CLIENTES
- GESCHÄFTSBEDINGUNGEN FÜR AGENTURKUNDEN
- DATENVERARBEITUNGSZUSATZ
Data Processing Addendum
Effective May 10, 2023
DownloadTable of Contents
DATA PROCESSING ADDENDUM
This Data Processing Addendum (this “DPA”) is a binding legal agreement between [Pegasus Business Intelligence, LP d/b/a Onyx CenterSource] (together with its affiliates and/or other companies of Onyx Group, “ Onyx”) and the customer (“Customer”) that agrees to any order, terms and conditions (including Onyx’s standard online terms and conditions for its hotel and agency customers), or other agreement that references this DPA (the “Agreement”).Onyx´s Privacy Policy is available at https://www.onyxcentersource.com/privacy-policy/
DEFINITIONS; INTERPRETATION
Unless otherwise specified below or herein, all capitalized terms used in this Data Processing Addendum shall have the same meaning as stated in the Agreement:
“EEA” means the European Economic Area;
“Data Incident” means a known or reasonably suspected unauthorized or unlawful access to, disclosure, modification, destruction, deletion, loss of, or disruption or loss of access to Controller Personal Data;
“Data Laws” means any applicable laws regarding data privacy, including (as applicable and without limitation) the GDPR;
“CCPA” Addendum means the California Consumer Privacy Act Addendum which is made up of the Addendum at Schedule 1 hereto.
"GDPR" means (i) the EU General Data Protection Regulation 2016/679 ("EU GDPR") as implemented by countries within the EEA; and (ii) the EU GDPR as retained as law in England and Wales by the European Union (Withdrawal) Act 2018 ("UK GDPR"), in each case as applicable to the processing;
“Personal Data” means any information made available by Customer to Onyx that (i) can be used, alone or in connection with other information, to identify an individual; or (ii) is otherwise subject to any Data Laws;
“Process,” “Processed” or “Processing” means any operation or set of operations that are performed on Personal Data or on sets of Personal Data, including by automated means, and pursuant to the instructions set forth herein;
“Restricted Transfer” means (a) a transfer of Personal Data from or which originated in the EEA to a Third Country that is not considered to provide an “adequate level” of data protection by the European Commission and where such transfer is subject to the EU GDPR (“EEA Restricted Transfer”); or (b) a transfer of Personal Data from or which originated in the UK to a Third Country that is not considered to provide an “adequate level” of data protection by the UK Government and where such transfer is subject to the UK GDPR (“UK Restricted Transfer”);
“Standard Contractual Clauses” means the standard contractual clauses available at https://www.onyxcentersource.com/ec-standard-contractual-clauses/
“Third Country” means a country outside of the EEA, and the UK (as applicable); and
“UK Addendum” means the UK International Data Transfer Addendum to the EU Commission Standard Contractual Clauses available at https://www.onyxcentersource.com/ec-standard-contractual-clauses/.
To the extent that:
(a) the terms contained in this Data Processing Addendum conflict with those contained in the Agreement, the terms in this Data Processing Addendum shall prevail to the extent the conflict relates to the processing of Personal Data which is subject to Data Laws;
(b) the terms contained in this Data Processing Addendum conflict with those contained in the Standard Contractual Clauses the terms in the Standard Contractual Clauses shall prevail to the extent the conflict relates to a Restricted Transfer; and
(c) the terms contained in the UK Addendum conflict with those in the Standard Contractual Clauses, the terms in the UK Addendum shall prevail in accordance with the hierarchy provisions therein to the extent the conflict relates to a UK Restricted Transfer.
GENERAL
Purpose. Customer has requested Onyx to provide certain services as further described and agreed in the Agreement. Onyx requires access to certain Personal Data on behalf of the Customer in order to be able to fulfill its obligations and provide the services under the Agreement.
Roles. Customer is responsible for determining the purposes and means of processing of the Personal Data. Customer is the “Controller” and Onyx the “Processor”, as those terms are used in applicable Data Laws. Customer represents and warrants that it has obtained any necessary consents and authorizations required under Data Laws, and is otherwise fully entitled to transmit any Personal Data to Onyx, all for purposes of processing pursuant to the Agreement. Each party will comply with all applicable Data Laws.
Scope and Instructions. Onyx will process the Personal Data only on and in accordance with Customer’s documented instructions. The parties agree and acknowledge that the Agreement constitutes Customer’s instructions as to the subject matter, type of Personal Data, and duration of processing to be provided by Onyx pursuant thereto. To the extent permitted by law, Onyx will promptly inform Customer of any legal requirement that would require Onyx to process the Personal Data other than pursuant to Customer’s documented instructions, or if Onyx believes Customer’s instructions violate any Data Laws.
Security. Onyx shall implement and maintain appropriate technical and organizational measures in relation to the processing of Personal Data, such that the processing will meet the requirements of Data Laws. For purposes of this section, “appropriate” means commercially reasonable based on an assessment of the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
Subprocessors. Onyx shall not engage a subprocessor to perform specific processing activities in respect of the Personal Data on behalf of Customer without prior written consent of Customer and, if Customer gives its consent, Onyx shall appoint the subprocessor under a binding written contract which imposes the same data protection obligations as are contained in this DPA. Customer hereby expressly authorizes Onyx to engage subprocessors for provision of technological services and maintenance of systems (between others, data hosting) that facilitate Onyx’s provision of its services generally across its customer base (including, but not specifically for, Customer). Onyx will notify Customer, through the Legal Notice in the Onyx Network, about any change in its subprocessors, giving Customer an opportunity to object to any changes. Onyx will use commercially reasonable efforts to address any such objections, but the parties agree and acknowledge that Onyx may be unable to accommodate requests from any one customer as relates to Onyx’s uniform provision of the services across its customer base as a whole.
Personnel. Onyx shall ensure that its personnel processing Personal Data have signed agreements requiring them to keep Personal Data confidential or are under an appropriate statutory obligation of confidentiality. Onyx shall ensure that its personnel processing Personal Data have received formation about Personal Data protection.
Assistance. Taking into account the nature of the processing under the Agreement, Onyx shall implement and maintain appropriate technical and organizational measures to assist Customer, insofar as this is possible, in the fulfilment of Customer’s obligations to respond to data subject requests for exercising any right of the data subject under Data Laws. Onyx will ensure that all data subject requests it receives are recorded and referred to Customer. Onyx shall provide reasonable assistance, information and cooperation to Customers to facilitate Customer’s compliance with its obligations under Data Laws. Customer will, at Onyx’s request, reimburse Onyx at reasonable rates for any time spent and costs incurred in providing such cooperation to the Customer in the event of requests which are manifestly unfounded or excessive, in particular because of their repetitive nature.
Records. Onyx shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of Customer containing such information as required under Data Laws (“ Processing Records”), and shall make available to Customer on request in a timely manner such information (including the Processing Records) as is reasonably required by Customer to demonstrate compliance by Onyx with its obligations under Data Laws and this DPA.
Audits. Onyx shall allow for and contribute to audits, including inspections, conducted by Customer or an auditor mandated by Customer for the purpose of demonstrating Onyx’s compliance with its obligations under Data Laws and this DPA, subject to Customer giving Onyx reasonable prior notice of such audit and/or inspection, ensuring that any auditor is subject to binding obligations of confidentiality, and that such audit or inspection is undertaken at Customer’s sole expense and in a manner so as to cause minimal disruption to Onyx’s business and other customers. No such audit may take place more than once per twelve months unless otherwise required by Data Laws.
Notification. In respect of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data processed by Onyx under the Agreement, Onyx shall notify Customer of the breach without undue delay and provide Customer without undue delay with available details relating to the breach as Customer reasonably requests.
Destruction. Onyx shall without delay, at Customer’s written request, either securely delete or return all the Personal Data to Customer in hardcopy or electronic form after the end of the provision of the relevant services related to processing or, once processing is no longer required for the performance of the Agreement´s obligations, and securely delete existing copies (unless storage of any data is required by law, in which case Onyx shall notify Customer accordingly).
Language. This DPA is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of this DPA into another language is for convenience only, and no such translation will be binding against the parties hereto.
State LAWs
To the extent that the services shall involve the processing of California data, the CCPA Addendum at Schedule1 shall apply.
INTERNATIONAL DATA TRANSFERS
EEA Restricted Transfers: To the extent applicable, parties acknowledge and agree that if Customer undertakes an EEA Restricted Transfer to Onyx the parties shall process Personal Data which is subject to the EEA Restricted Transfer in accordance with the Standard Contractual Clauses.
UK Restricted Transfers: The parties acknowledge and agree that if Customer undertakes a UK Restricted Transfer to Onyx the parties shall process Personal Data which is subject to the UK Restricted Transfer in accordance with the Standard Contractual Clauses and the UK Addendum.
The parties acknowledge and agree that to the extent:
(a) Onyx is subject to the requirements of the GDPR with regards the processing of the Personal Data subject to a Restricted Transfer; and
(b) Onyx’s obligations in the Standard Contractual Clauses conflict with Onyx’s obligations under the GDPR in regard the processing of such Personal Data;
Onyx shall only need to comply with its obligations under the GDPR with regard to such processing.
Module Applicable: The parties acknowledge and agree that Module 2 of the Standard Contractual Clauses applies to the processing.
Amendments: Notwithstanding any restrictions on amendments in the Agreement, the parties acknowledge and agree that should new standard contractual clauses get published (or amendments to the existing Standard Contractual Clauses or UK Addendum) to address Restricted Transfers, and where the parties determine such new or amended clauses are required to address the Restricted Transfers, such new or amended clauses will replace the Standard Contractual Clauses and/or UK Addendum (as applicable) upon notification. All Restricted Transfers will be thereafter made pursuant to such new or amended clauses.
SCHEDULE 1
CALIFORNIA CONSUMER PRIVACY ACT (“CCPA”) ADDENDUM
To the extent the CCPA is applicable, the following terms will apply:
PROCESSING RIGHTS AND REQUIREMENTS
General Obligations. Processor will Process Controller Personal Data in compliance with applicable laws, including applicable Data Laws, at all times and in compliance with this DPA. For the purposes of this DPA, Processor is a “service provider,” “contractor,” or “processor” or similar applicable term defined under applicable Data Law. Processor will not disclose Personal Data to any third party, except pursuant to this DPA.
Prohibited Uses. Processor is prohibited from and represents and certifies its understanding that it is prohibited from:
Selling, Sharing, or otherwise disclosing Controller Personal Data to any third party, as such concepts are defined each under applicable Data Laws;
using, retaining, or disclosing Controller Personal Data for any purpose other than the Specified Purpose or engaging a subcontractor in compliance with the DPA, including any other commercial purpose;
using, retaining, or disclosing Controller Personal Data outside of the direct relationship between Controller and Processor;
using, retaining, or disclosing Controller Personal Data against Controller’s instructions; and
combining or updating Controller Personal Data with Personal Data received from another source, including Processor’s own direct interaction with the consumer, unless expressly permitted applicable law, including applicable Data Laws.
PROCESSING OBLIGATIONS
Processor shall make available to Controller all information necessary to comply with and demonstrate Processor’s compliance with Data Laws.
Data Subject Requests.
Processor shall cooperate with, and provide all reasonable support to cause Controller to comply with Controller’s obligations to data subjects under Data Laws, including responding to data subject requests. Upon written request from Controller, Processor shall provide necessary information to Controller to fulfill its obligations under Data Laws.
In the event that any individual rights request from a data subject is made directly to Processor concerning Controller Personal Data, Processor shall forward the request to Controller within five (5) calendar days within Processor’s receipt of the request. Processor shall not respond to the request without Controller’s prior authorization other than to inform the requestor that Processor is not authorized to directly respond to a request and advise that Processor has forwarded the request to Controller.
In the event that any request from applicable legal or regulatory authorities is made directly to Processor, Processor shall promptly forward the request to Controller, no later than five (5) calendar days within Processor’s receipt of the request, to the extent legally permitted to do so. Processor shall not respond to such communication directly without Controller’s prior authorization other than to inform the requestor that Processor is not authorized to directly respond to a request. If Processor is legally required to directly respond to such a request, Processor will promptly notify Controller and provide it with a copy of the request unless legally prohibited from doing so.
Data Processing Assessments. Processor shall provide information to Controller necessary to enable Controller to conduct and document any data processing or data protection assessments.
Data Retention and Deletion/Return. Processor shall only retain Personal Data for the duration of the agreement that references this DPA, unless a different time period is agreed upon in writing. Except as required under applicable law, upon termination or expiration of the agreement that references this DPA, Processor shall return, delete and/or destroy all Controller Personal Data. Controller shall decide, in its sole discretion, whether Processor shall return or delete Controller Personal Data upon the termination or expiration of the agreement that references this DPA.
Confidentiality. Processor shall ensure that Processor personnel that Process Controller Personal Data keep the Controller Personal Data confidential, are subject to confidentiality obligations that are at least as strict as the requirements Processor has to protect its own confidential information, and are consistent with confidentiality provisions in the agreement that references this DPA. Further, Processor shall provide information security and data protection or privacy training to its personnel that are Processing Controller Personal Data.
SUB-PROCESSORS
In the event that Processor engages sub-processors to assist it in providing its services to Controller, Processor shall enter into a written agreement with each sub-processor that requires the sub-processor to substantially meet the same terms of this DPA that are applicable to Processor.
AUDITS
Processor grants Controller the right to take reasonable and appropriate steps to ensure that Processor uses Controller Personal Data in a manner consistent with Controller’s obligations under the Data Laws. Reasonable and appropriate steps may include assessments of Processor’s system(s) and requirements to conduct regular internal or third-party assessments, audits, or other technical or operational testing. Controller will undertake or require such assessments or audits at a reasonable interval, typically once every 12 months, unless there has been a Data Incident or where Controller has evidence-based concerns that Processor is not compliant with the requirements herein.
INFORMATION SECURITY
Processor and Controller shall implement and maintain technical and organizational security measures to protect the security, confidentiality, and integrity of Personal Data and to ensure a level of security appropriate to the risk. Further, Processor must assist in meeting Controller’s obligations regarding security of Processing Personal Data, including in relation to notice obligations in a Data Incident. If Processor becomes aware of a Data Incident, it shall promptly (a) notify Controller; (b) provide relevant information, to the extent known, about the Data Incident to Controller; and (c) reasonably cooperate with Controller to support Controller’s reasonable reporting and notification obligations.
CERTIFICATION AND NOTIFICATION OBLIGATIONS
Processor certifies that it understands and will comply with the requirements set forth herein. If Processor becomes aware or makes a determination that it can no longer meet its obligations under applicable Data Laws or this DPA, it shall promptly notify Controller.
Appendix 1
The Parties agree that the Processing details are as follows:
(a) Types of Personal Data Processed: Personal Data provided by Controller under the agreement that references this DPA to receive services from Processor.
(b) Nature and Purpose of the Processing: To provide services to Controller (“Specified Purpose”)
(c) Duration of the Processing: For the duration of the agreement that references this DPA.
Effective May 5, 2023 to May 10, 2023
DownloadTable of Contents
DATA PROCESSING ADDENDUM
This Data Processing Addendum (this “DPA”) is a binding legal agreement between [Pegasus Business Intelligence, LP d/b/a Onyx CenterSource] (together with its affiliates and/or other companies of Onyx Group, “ Onyx”) and the customer (“Customer”) that agrees to any order, terms and conditions (including Onyx’s standard online terms and conditions for its hotel and agency customers), or other agreement that references this DPA (the “Agreement”).Onyx´s Privacy Policy is available at https://www.onyxcentersource.com/privacy-policy/
DEFINITIONS; INTERPRETATION
Unless otherwise specified below or herein, all capitalized terms used in this Data Processing Addendum shall have the same meaning as stated in the Agreement:
“EEA” means the European Economic Area;
“Data Incident” means a known or reasonably suspected unauthorized or unlawful access to, disclosure, modification, destruction, deletion, loss of, or disruption or loss of access to Controller Personal Data;
“Data Laws” means any applicable laws regarding data privacy, including (as applicable and without limitation) the GDPR;
“CCPA” Addendum means the California Consumer Privacy Act Addendum which is made up of the Addendum at Schedule 1 hereto.
"GDPR" means (i) the EU General Data Protection Regulation 2016/679 ("EU GDPR") as implemented by countries within the EEA; and (ii) the EU GDPR as retained as law in England and Wales by the European Union (Withdrawal) Act 2018 ("UK GDPR"), in each case as applicable to the processing;
“Personal Data” means any information made available by Customer to Onyx that (i) can be used, alone or in connection with other information, to identify an individual; or (ii) is otherwise subject to any Data Laws;
“Process,” “Processed” or “Processing” means any operation or set of operations that are performed on Personal Data or on sets of Personal Data, including by automated means, and pursuant to the instructions set forth herein;
“Restricted Transfer” means (a) a transfer of Personal Data from or which originated in the EEA to a Third Country that is not considered to provide an “adequate level” of data protection by the European Commission and where such transfer is subject to the EU GDPR (“EEA Restricted Transfer”); or (b) a transfer of Personal Data from or which originated in the UK to a Third Country that is not considered to provide an “adequate level” of data protection by the UK Government and where such transfer is subject to the UK GDPR (“UK Restricted Transfer”);
“Standard Contractual Clauses” means the standard contractual clauses available at https://www.onyxcentersource.com/ec-standard-contractual-clauses/
“Third Country” means a country outside of the EEA, and the UK (as applicable); and
“UK Addendum” means the UK International Data Transfer Addendum to the EU Commission Standard Contractual Clauses available at https://www.onyxcentersource.com/ec-standard-contractual-clauses/.
To the extent that:
(a) the terms contained in this Data Processing Addendum conflict with those contained in the Agreement, the terms in this Data Processing Addendum shall prevail to the extent the conflict relates to the processing of Personal Data which is subject to Data Laws;
(b) the terms contained in this Data Processing Addendum conflict with those contained in the Standard Contractual Clauses the terms in the Standard Contractual Clauses shall prevail to the extent the conflict relates to a Restricted Transfer; and
(c) the terms contained in the UK Addendum conflict with those in the Standard Contractual Clauses, the terms in the UK Addendum shall prevail in accordance with the hierarchy provisions therein to the extent the conflict relates to a UK Restricted Transfer.
GENERAL
Purpose. Customer has requested Onyx to provide certain services as further described and agreed in the Agreement. Onyx requires access to certain Personal Data on behalf of the Customer in order to be able to fulfill its obligations and provide the services under the Agreement.
Roles. Customer is responsible for determining the purposes and means of processing of the Personal Data. Customer is the “Controller” and Onyx the “Processor”, as those terms are used in applicable Data Laws. Customer represents and warrants that it has obtained any necessary consents and authorizations required under Data Laws, and is otherwise fully entitled to transmit any Personal Data to Onyx, all for purposes of processing pursuant to the Agreement. Each party will comply with all applicable Data Laws.
Scope and Instructions. Onyx will process the Personal Data only on and in accordance with Customer’s documented instructions. The parties agree and acknowledge that the Agreement constitutes Customer’s instructions as to the subject matter, type of Personal Data, and duration of processing to be provided by Onyx pursuant thereto. To the extent permitted by law, Onyx will promptly inform Customer of any legal requirement that would require Onyx to process the Personal Data other than pursuant to Customer’s documented instructions, or if Onyx believes Customer’s instructions violate any Data Laws.
Security. Onyx shall implement and maintain appropriate technical and organizational measures in relation to the processing of Personal Data, such that the processing will meet the requirements of Data Laws. For purposes of this section, “appropriate” means commercially reasonable based on an assessment of the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
Subprocessors. Onyx shall not engage a subprocessor to perform specific processing activities in respect of the Personal Data on behalf of Customer without prior written consent of Customer and, if Customer gives its consent, Onyx shall appoint the subprocessor under a binding written contract which imposes the same data protection obligations as are contained in this DPA. Customer hereby expressly authorizes Onyx to engage subprocessors for provision of technological services and maintenance of systems (between others, data hosting) that facilitate Onyx’s provision of its services generally across its customer base (including, but not specifically for, Customer). Onyx will notify Customer, through the Legal Notice in the Onyx Network, about any change in its subprocessors, giving Customer an opportunity to object to any changes. Onyx will use commercially reasonable efforts to address any such objections, but the parties agree and acknowledge that Onyx may be unable to accommodate requests from any one customer as relates to Onyx’s uniform provision of the services across its customer base as a whole.
Personnel. Onyx shall ensure that its personnel processing Personal Data have signed agreements requiring them to keep Personal Data confidential or are under an appropriate statutory obligation of confidentiality. Onyx shall ensure that its personnel processing Personal Data have received formation about Personal Data protection.
Assistance. Taking into account the nature of the processing under the Agreement, Onyx shall implement and maintain appropriate technical and organizational measures to assist Customer, insofar as this is possible, in the fulfilment of Customer’s obligations to respond to data subject requests for exercising any right of the data subject under Data Laws. Onyx will ensure that all data subject requests it receives are recorded and referred to Customer. Onyx shall provide reasonable assistance, information and cooperation to Customers to facilitate Customer’s compliance with its obligations under Data Laws. Customer will, at Onyx’s request, reimburse Onyx at reasonable rates for any time spent and costs incurred in providing such cooperation to the Customer in the event of requests which are manifestly unfounded or excessive, in particular because of their repetitive nature.
Records. Onyx shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of Customer containing such information as required under Data Laws (“ Processing Records”), and shall make available to Customer on request in a timely manner such information (including the Processing Records) as is reasonably required by Customer to demonstrate compliance by Onyx with its obligations under Data Laws and this DPA.
Audits. Onyx shall allow for and contribute to audits, including inspections, conducted by Customer or an auditor mandated by Customer for the purpose of demonstrating Onyx’s compliance with its obligations under Data Laws and this DPA, subject to Customer giving Onyx reasonable prior notice of such audit and/or inspection, ensuring that any auditor is subject to binding obligations of confidentiality, and that such audit or inspection is undertaken at Customer’s sole expense and in a manner so as to cause minimal disruption to Onyx’s business and other customers. No such audit may take place more than once per twelve months unless otherwise required by Data Laws.
Notification. In respect of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data processed by Onyx under the Agreement, Onyx shall notify Customer of the breach without undue delay and provide Customer without undue delay with available details relating to the breach as Customer reasonably requests.
Destruction. Onyx shall without delay, at Customer’s written request, either securely delete or return all the Personal Data to Customer in hardcopy or electronic form after the end of the provision of the relevant services related to processing or, once processing is no longer required for the performance of the Agreement´s obligations, and securely delete existing copies (unless storage of any data is required by law, in which case Onyx shall notify Customer accordingly).
Language. This DPA is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of this DPA into another language is for convenience only, and no such translation will be binding against the parties hereto.
State LAWs
To the extent that the services shall involve the processing of California data, the CCPA Addendum at Schedule1 shall apply.
INTERNATIONAL DATA TRANSFERS
EEA Restricted Transfers: To the extent applicable, parties acknowledge and agree that if Customer undertakes an EEA Restricted Transfer to Onyx the parties shall process Personal Data which is subject to the EEA Restricted Transfer in accordance with the Standard Contractual Clauses.
UK Restricted Transfers: The parties acknowledge and agree that if Customer undertakes a UK Restricted Transfer to Onyx the parties shall process Personal Data which is subject to the UK Restricted Transfer in accordance with the Standard Contractual Clauses and the UK Addendum.
The parties acknowledge and agree that to the extent:
(a) Onyx is subject to the requirements of the GDPR with regards the processing of the Personal Data subject to a Restricted Transfer; and
(b) Onyx’s obligations in the Standard Contractual Clauses conflict with Onyx’s obligations under the GDPR in regard the processing of such Personal Data;
Onyx shall only need to comply with its obligations under the GDPR with regard to such processing.
Module Applicable: The parties acknowledge and agree that Module 2 of the Standard Contractual Clauses applies to the processing.
Amendments: Notwithstanding any restrictions on amendments in the Agreement, the parties acknowledge and agree that should new standard contractual clauses get published (or amendments to the existing Standard Contractual Clauses or UK Addendum) to address Restricted Transfers, and where the parties determine such new or amended clauses are required to address the Restricted Transfers, such new or amended clauses will replace the Standard Contractual Clauses and/or UK Addendum (as applicable) upon notification. All Restricted Transfers will be thereafter made pursuant to such new or amended clauses.
SCHEDULE 1
CALIFORNIA CONSUMER PRIVACY ACT (“CCPA”) ADDENDUM
To the extent the CCPA is applicable, the following terms will apply:
PROCESSING RIGHTS AND REQUIREMENTS
General Obligations. Processor will Process Controller Personal Data in compliance with applicable laws, including applicable Data Laws, at all times and in compliance with this DPA. For the purposes of this DPA, Processor is a “service provider,” “contractor,” or “processor” or similar applicable term defined under applicable Data Law. Processor will not disclose Personal Data to any third party, except pursuant to this DPA.
Prohibited Uses. Processor is prohibited from and represents and certifies its understanding that it is prohibited from:
Selling, Sharing, or otherwise disclosing Controller Personal Data to any third party, as such concepts are defined each under applicable Data Laws;
using, retaining, or disclosing Controller Personal Data for any purpose other than the Specified Purpose or engaging a subcontractor in compliance with the DPA, including any other commercial purpose;
using, retaining, or disclosing Controller Personal Data outside of the direct relationship between Controller and Processor;
using, retaining, or disclosing Controller Personal Data against Controller’s instructions; and
combining or updating Controller Personal Data with Personal Data received from another source, including Processor’s own direct interaction with the consumer, unless expressly permitted applicable law, including applicable Data Laws.
PROCESSING OBLIGATIONS
Processor shall make available to Controller all information necessary to comply with and demonstrate Processor’s compliance with Data Laws.
Data Subject Requests.
Processor shall cooperate with, and provide all reasonable support to cause Controller to comply with Controller’s obligations to data subjects under Data Laws, including responding to data subject requests. Upon written request from Controller, Processor shall provide necessary information to Controller to fulfill its obligations under Data Laws.
In the event that any individual rights request from a data subject is made directly to Processor concerning Controller Personal Data, Processor shall forward the request to Controller within five (5) calendar days within Processor’s receipt of the request. Processor shall not respond to the request without Controller’s prior authorization other than to inform the requestor that Processor is not authorized to directly respond to a request and advise that Processor has forwarded the request to Controller.
In the event that any request from applicable legal or regulatory authorities is made directly to Processor, Processor shall promptly forward the request to Controller, no later than five (5) calendar days within Processor’s receipt of the request, to the extent legally permitted to do so. Processor shall not respond to such communication directly without Controller’s prior authorization other than to inform the requestor that Processor is not authorized to directly respond to a request. If Processor is legally required to directly respond to such a request, Processor will promptly notify Controller and provide it with a copy of the request unless legally prohibited from doing so.
Data Processing Assessments. Processor shall provide information to Controller necessary to enable Controller to conduct and document any data processing or data protection assessments.
Data Retention and Deletion/Return. Processor shall only retain Personal Data for the duration of the agreement that references this DPA, unless a different time period is agreed upon in writing. Except as required under applicable law, upon termination or expiration of the agreement that references this DPA, Processor shall return, delete and/or destroy all Controller Personal Data. Controller shall decide, in its sole discretion, whether Processor shall return or delete Controller Personal Data upon the termination or expiration of the agreement that references this DPA.
Confidentiality. Processor shall ensure that Processor personnel that Process Controller Personal Data keep the Controller Personal Data confidential, are subject to confidentiality obligations that are at least as strict as the requirements Processor has to protect its own confidential information, and are consistent with confidentiality provisions in the agreement that references this DPA. Further, Processor shall provide information security and data protection or privacy training to its personnel that are Processing Controller Personal Data.
SUB-PROCESSORS
In the event that Processor engages sub-processors to assist it in providing its services to Controller, Processor shall enter into a written agreement with each sub-processor that requires the sub-processor to substantially meet the same terms of this DPA that are applicable to Processor.
AUDITS
Processor grants Controller the right to take reasonable and appropriate steps to ensure that Processor uses Controller Personal Data in a manner consistent with Controller’s obligations under the Data Laws. Reasonable and appropriate steps may include assessments of Processor’s system(s) and requirements to conduct regular internal or third-party assessments, audits, or other technical or operational testing. Controller will undertake or require such assessments or audits at a reasonable interval, typically once every 12 months, unless there has been a Data Incident or where Controller has evidence-based concerns that Processor is not compliant with the requirements herein.
INFORMATION SECURITY
Processor and Controller shall implement and maintain technical and organizational security measures to protect the security, confidentiality, and integrity of Personal Data and to ensure a level of security appropriate to the risk. Further, Processor must assist in meeting Controller’s obligations regarding security of Processing Personal Data, including in relation to notice obligations in a Data Incident. If Processor becomes aware of a Data Incident, it shall promptly (a) notify Controller; (b) provide relevant information, to the extent known, about the Data Incident to Controller; and (c) reasonably cooperate with Controller to support Controller’s reasonable reporting and notification obligations.
CERTIFICATION AND NOTIFICATION OBLIGATIONS
Processor certifies that it understands and will comply with the requirements set forth herein. If Processor becomes aware or makes a determination that it can no longer meet its obligations under applicable Data Laws or this DPA, it shall promptly notify Controller.
Appendix 1
The Parties agree that the Processing details are as follows:
(a) Types of Personal Data Processed: Personal Data provided by Controller under the agreement that references this DPA to receive services from Processor.
(b) Nature and Purpose of the Processing: To provide services to Controller (“Specified Purpose”)
(c) Duration of the Processing: For the duration of the agreement that references this DPA.
Effective September 23, 2021 to May 5, 2023
DownloadTable of Contents
DATA PROCESSING ADDENDUM
This Data Processing Addendum (this “DPA”) is a binding legal agreement between [Pegasus Business Intelligence, LP d/b/a Onyx CenterSource]1 (together with its affiliates and/or other companies of Onyx Group, “ Onyx”) and the customer (“Customer”) that agrees to any order, terms and conditions (including Onyx’s standard online terms and conditions for its hotel and agency customers), or other agreement that references this DPA (the “ Agreement”).
Onyx´s Privacy Policy is available at https://www.onyxcentersource.com/privacy-policy/ This DPA governs Onyx´s processing of Personal Data relating to data subjects within the EEA or another jurisdiction with Data Laws that apply to Onyx; on such circumstances, this DPA will govern in the event of any conflict with Onyx´s Privacy Policy Definitions.
“EEA” means the European Economic Area.
“Data Laws” means any applicable laws regarding data privacy, including (as applicable and without limitation) the GDPR.
“GDPR” means EU General Data Protection Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
“Personal Data” means any information made available by Customer to Onyx that (i) can be used, alone or in connection with other information, to identify an individual; or (ii) is otherwise subject to any Data Laws.
Purpose. Customer has requested Onyx provide certain services as further described and agreed in the Agreement. Onyx requires access to certain Personal Data on behalf of the Customer in order to be able to fulfill its obligations and provide the services under the Agreement.
Roles. Customer is the entity legally responsible for determining the purposes and means of processing of the Personal Data. Customer is the “ Controller” and Onyx the “Processor”, as those terms are used in applicable Data Laws. Customer represents and warrants that it has obtained any necessary consents and authorizations required under Data Laws, and is otherwise fully entitled to transmit any Personal Data to Onyx, all for purposes of processing pursuant to the Agreement. Each party will comply with all applicable Data Laws.
Customer authorizes the processing of Personal Data by the company of Onyx located in the USA where necessary to fulfil the purpose of the contracted service; in any case, when there is a Personal Data transfer to the company of Onyx located in the USA, it acts as Data Processor and this transfer will be based on the Standard Contractual Clauses available here https://www.onyxcentersource.com/ec-standard-contractual-clauses/, which are a binding legal agreement between the parties and forms a part of the Agreement.
Scope and Instructions. Onyx will process the Personal Data only on and in accordance with Customer’s documented instructions. The parties agree and acknowledge that the Agreement constitutes Customer’s instructions as to the subject matter, type of Personal Data, and duration of processing to be provided by Onyx pursuant thereto. To the extent permitted by law, Onyx will promptly inform Customer of any legal requirement that would require Onyx to process the Personal Data other than pursuant to Customer’s documented instructions, or if Onyx believes Customer’s instructions violate any Data Laws.
Security. Onyx shall implement and maintain appropriate technical and organizational measures in relation to the processing of Personal Data, such that the processing will meet the requirements of Data Laws. For purposes of this section, “appropriate” means commercially reasonable based on an assessment of the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
Subprocessors. Onyx shall not engage a subprocessor to perform specific processing activities in respect of the Personal Data on behalf of Customer without prior written consent of Customer and, if Customer gives its consent, Onyx shall appoint the subprocessor
under a binding written contract which imposes the same data protection obligations as are contained in this DPA. Customer hereby expressly authorizes Onyx to engage subprocessors for provision of technological services and maintenance of systems (between others, data hosting) that facilitate Onyx’s provision of its services generally across its customer base (including, but not specifically for, Customer). Onyx will notify Customer, through the Legal Notice in the Onyx Network, about any change in its subprocessors, giving Customer an opportunity to object to any changes. Onyx will use commercially reasonable efforts to address any such objections, but the parties agree and acknowledge that Onyx may be unable to accommodate requests from any one customer as relates to Onyx’s uniform provision of the services across its customer base as a whole.
Personnel. Onyx shall ensure that its personnel processing Personal Data have signed agreements requiring them to keep Personal Data confidential or are under an appropriate statutory obligation of confidentiality. Onyx shall ensure that its personnel processing Personal Data have received formation about Personal Data protection.
Assistance. Taking into account the nature of the processing under the Agreement, Onyx shall implement and maintain appropriate technical and organisational measures to assist Customer, insofar as this is possible, in the fulfilment of Customer’s obligations to respond to data subject requests for exercising any right of the data subject under Data Laws. Onyx will ensure that all data subject requests it receives are recorded and referred to Customer. Onyx shall provide reasonable assistance, information and cooperation to Customers to facilitate Customer’s compliance with its obligations under Data Laws. Customer will, at Onyx’s request, reimburse Onyx at reasonable rates for any time spent and costs incurred in providing such cooperation to the Customer in the event of requests which are manifestly unfounded or excessive, in particular because of their repetitive nature.
Records. Onyx shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of Customer containing such information as required under Data Laws (“ Processing Records”), and shall make available to Customer on request in a timely manner such information (including the Processing Records) as is reasonably required by Customer to demonstrate compliance by Onyx with its obligations under Data Laws and this DPA.
Audits. Onyx shall allow for and contribute to audits, including inspections, conducted by Customer or an auditor mandated by Customer for the purpose of demonstrating Onyx’s compliance with its obligations under Data Laws and this DPA, subject to Customer giving ONYX reasonable prior notice of such audit and/or inspection, ensuring that any auditor is subject to binding obligations of confidentiality, and that such audit or inspection is undertaken at Customer’s sole expense and in a manner so as to cause minimal disruption to Onyx’s business and other customers. No such audit may take place more than once per twelve months unless otherwise required by Data Laws.
Notification. In respect of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data processed by Onyx under the Agreement, Onyx shall notify Customer of the breach without undue delay and provide Customer without undue delay with available details relating to the breach as Customer reasonably requests.
Destruction. Onyx shall without delay, at Customer’s written request, either securely delete or return all the Personal Data to Customer in hardcopy or electronic form after the end of the provision of the relevant services related to processing or, once processing is no longer required for the performance of the Agreement´s obligations, and securely delete existing copies (unless storage of any data is required by law, in which case Onyx shall notify Customer accordingly).
Language. This DPA is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of this DPA into another language is for convenience only, and no such translation will be binding against the parties hereto.
1To include the company of Onyx Group which will sign the contract with the customer.
Effective September 23, 2021 to September 23, 2021
DownloadTable of Contents
DATA PROCESSING ADDENDUM
This Data Processing Addendum (this “DPA”) is a binding legal agreement between [Pegasus Business Intelligence, LP d/b/a Onyx CenterSource]1 (together with its affiliates and/or other companies of Onyx Group, “ Onyx”) and the customer (“Customer”) that agrees to any order, terms and conditions (including Onyx’s standard online terms and conditions for its hotel and agency customers), or other agreement that references this DPA (the “ Agreement”).
Onyx´s Privacy Policy is available at https://www.onyxcentersource.com/privacy-policy/ This DPA governs Onyx´s processing of Personal Data relating to data subjects within the EEA or another jurisdiction with Data Laws that apply to Onyx; on such circumstances, this DPA will govern in the event of any conflict with Onyx´s Privacy Policy Definitions.
“EEA” means the European Economic Area.
“Data Laws” means any applicable laws regarding data privacy, including (as applicable and without limitation) the GDPR.
“GDPR” means EU General Data Protection Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
“Personal Data” means any information made available by Customer to Onyx that (i) can be used, alone or in connection with other information, to identify an individual; or (ii) is otherwise subject to any Data Laws.
Purpose. Customer has requested Onyx provide certain services as further described and agreed in the Agreement. Onyx requires access to certain Personal Data on behalf of the Customer in order to be able to fulfill its obligations and provide the services under the Agreement.
Roles. Customer is the entity legally responsible for determining the purposes and means of processing of the Personal Data. Customer is the “ Controller” and Onyx the “Processor”, as those terms are used in applicable Data Laws. Customer represents and warrants that it has obtained any necessary consents and authorizations required under Data Laws, and is otherwise fully entitled to transmit any Personal Data to Onyx, all for purposes of processing pursuant to the Agreement. Each party will comply with all applicable Data Laws.
Customer authorizes the processing of Personal Data by the company of Onyx located in the USA where necessary to fulfil the purpose of the contracted service; in any case, when there is a Personal Data transfer to the company of Onyx located in the USA, it acts as Data Processor and this transfer will be based on the Standard Contractual Clauses available here https://www.onyxcentersource.com/ec-standard-contractual-clauses/, which are a binding legal agreement between the parties and forms a part of the Agreement.
Scope and Instructions. Onyx will process the Personal Data only on and in accordance with Customer’s documented instructions. The parties agree and acknowledge that the Agreement constitutes Customer’s instructions as to the subject matter, type of Personal Data, and duration of processing to be provided by Onyx pursuant thereto. To the extent permitted by law, Onyx will promptly inform Customer of any legal requirement that would require Onyx to process the Personal Data other than pursuant to Customer’s documented instructions, or if Onyx believes Customer’s instructions violate any Data Laws.
Security. Onyx shall implement and maintain appropriate technical and organizational measures in relation to the processing of Personal Data, such that the processing will meet the requirements of Data Laws. For purposes of this section, “appropriate” means commercially reasonable based on an assessment of the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
Subprocessors. Onyx shall not engage a subprocessor to perform specific processing activities in respect of the Personal Data on behalf of Customer without prior written consent of Customer and, if Customer gives its consent, Onyx shall appoint the subprocessor
under a binding written contract which imposes the same data protection obligations as are contained in this DPA. Customer hereby expressly authorizes Onyx to engage subprocessors for provision of technological services and maintenance of systems (between others, data hosting) that facilitate Onyx’s provision of its services generally across its customer base (including, but not specifically for, Customer). Onyx will notify Customer, through the Legal Notice in the Onyx Network, about any change in its subprocessors, giving Customer an opportunity to object to any changes. Onyx will use commercially reasonable efforts to address any such objections, but the parties agree and acknowledge that Onyx may be unable to accommodate requests from any one customer as relates to Onyx’s uniform provision of the services across its customer base as a whole.
Personnel. Onyx shall ensure that its personnel processing Personal Data have signed agreements requiring them to keep Personal Data confidential or are under an appropriate statutory obligation of confidentiality. Onyx shall ensure that its personnel processing Personal Data have received formation about Personal Data protection.
Assistance. Taking into account the nature of the processing under the Agreement, Onyx shall implement and maintain appropriate technical and organisational measures to assist Customer, insofar as this is possible, in the fulfilment of Customer’s obligations to respond to data subject requests for exercising any right of the data subject under Data Laws. Onyx will ensure that all data subject requests it receives are recorded and referred to Customer. Onyx shall provide reasonable assistance, information and cooperation to Customers to facilitate Customer’s compliance with its obligations under Data Laws. Customer will, at Onyx’s request, reimburse Onyx at reasonable rates for any time spent and costs incurred in providing such cooperation to the Customer in the event of requests which are manifestly unfounded or excessive, in particular because of their repetitive nature.
Records. Onyx shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of Customer containing such information as required under Data Laws (“ Processing Records”), and shall make available to Customer on request in a timely manner such information (including the Processing Records) as is reasonably required by Customer to demonstrate compliance by Onyx with its obligations under Data Laws and this DPA.
Audits. Onyx shall allow for and contribute to audits, including inspections, conducted by Customer or an auditor mandated by Customer for the purpose of demonstrating Onyx’s compliance with its obligations under Data Laws and this DPA, subject to Customer giving ONYX reasonable prior notice of such audit and/or inspection, ensuring that any auditor is subject to binding obligations of confidentiality, and that such audit or inspection is undertaken at Customer’s sole expense and in a manner so as to cause minimal disruption to Onyx’s business and other customers. No such audit may take place more than once per twelve months unless otherwise required by Data Laws.
Notification. In respect of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data processed by Onyx under the Agreement, Onyx shall notify Customer of the breach without undue delay and provide Customer without undue delay with available details relating to the breach as Customer reasonably requests.
Destruction. Onyx shall without delay, at Customer’s written request, either securely delete or return all the Personal Data to Customer in hardcopy or electronic form after the end of the provision of the relevant services related to processing or, once processing is no longer required for the performance of the Agreement´s obligations, and securely delete existing copies (unless storage of any data is required by law, in which case Onyx shall notify Customer accordingly).
Language. This DPA is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of this DPA into another language is for convenience only, and no such translation will be binding against the parties hereto.
1To include the company of Onyx Group which will sign the contract with the customer.
Effective September 30, 2020 to September 23, 2021
DownloadTable of Contents
DATA PROCESSING ADDENDUM
This Data Processing Addendum (this “DPA”) is a binding legal agreement between [Pegasus Business Intelligence, LP d/b/a Onyx CenterSource]1 (together with its affiliates and/or other companies of Onyx Group, “ Onyx”) and the customer (“Customer”) that agrees to any order, terms and conditions (including Onyx’s standard online terms and conditions for its hotel and agency customers), or other agreement that references this DPA (the “ Agreement”).
Definitions.
“EEA” means the European Economic Area.
“Data Laws” means any applicable laws regarding data privacy, including (as applicable and without limitation) the GDPR.
“GDPR” means EU General Data Protection Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
“Personal Data” means any information made available by Customer to Onyx that (i) can be used, alone or in connection with other information, to identify an individual; or (ii) is otherwise subject to any Data Laws.
Purpose. Customer has requested Onyx provide certain services as further described and agreed in the Agreement. Onyx requires access to certain Personal Data on behalf of the Customer in order to be able to fulfill its obligations and provide the services under the Agreement.
Roles. Customer is the entity legally responsible for determining the purposes and means of processing of the Personal Data. Customer is the “ Controller” and Onyx the “Processor”, as those terms are used in applicable Data Laws. Customer represents and warrants that it has obtained any necessary consents and authorizations required under Data Laws, and is otherwise fully entitled to transmit any Personal Data to Onyx, all for purposes of processing pursuant to the Agreement. Each party will comply with all applicable Data Laws.
Transfers from the EEA to third countries located outside of the EEA and to the US. Onyx shall only transfer Personal Data to third parties located outside of the EEA and in the US, based on the prior consent of the Customer and/or the subscription with such companies of standard data protection clauses adopted by the European Commission to the transfer of data to third countries in accordance with Article 46.2 of the GDPR and/or where the European Commission has decided that, the third country ensures an adequate level of protection, such as the certification under the EU-US Privacy Shield Framework.
Scope and Instructions. Onyx will process the Personal Data only on and in accordance with Customer’s documented instructions. The parties agree and acknowledge that the Agreement constitutes Customer’s instructions as to the subject matter, type of Personal Data, and duration of processing to be provided by Onyx pursuant thereto. To the extent permitted by law, Onyx will promptly inform Customer of any legal requirement that would require Onyx to process the Personal Data other than pursuant to Customer’s documented instructions, or if Onyx believes Customer’s instructions violate any Data Laws.
Security. Onyx shall implement and maintain appropriate technical and organizational measures in relation to the processing of Personal Data, such that the processing will meet the requirements of Data Laws. For purposes of this section, “appropriate” means commercially reasonable based on an assessment of the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
Subprocessors. Onyx shall not engage a subprocessor to perform specific processing activities in respect of the Personal Data on behalf of Customer without prior written consent of Customer and, if Customer gives its consent, Onyx shall appoint the subprocessor under a binding written contract which imposes the same data protection obligations as are contained in this DPA. Customer hereby expressly authorizes Onyx to engage subprocessors for provision of technological services and maintenance of systems (between others, data hosting) that facilitate Onyx’s provision of its services generally across its customer base (including, but not specifically for, Customer). Onyx will notify Customer, through the Legal Notice in the Onyx Network, about any change in its subprocessors, giving Customer an opportunity to object to any changes. Onyx will use commercially reasonable efforts to address any such objections, but the parties agree and acknowledge that Onyx may be unable to accommodate requests from any one customer as relates to Onyx’s uniform provision of the services across its customer base as a whole.
Personnel. Onyx shall ensure that its personnel processing Personal Data have signed agreements requiring them to keep Personal Data confidential or are under an appropriate statutory obligation of confidentiality. Onyx shall ensure that its personnel processing Personal Data have received formation about Personal Data protection.
Assistance. Taking into account the nature of the processing under the Agreement, Onyx shall implement and maintain appropriate technical and organisational measures to assist Customer, insofar as this is possible, in the fulfilment of Customer’s obligations to respond to data subject requests for exercising any right of the data subject under Data Laws. Onyx will ensure that all data subject requests it receives are recorded and referred to Customer. Onyx shall provide reasonable assistance, information and cooperation to Customers to facilitate Customer’s compliance with its obligations under Data Laws. Customer will, at Onyx’s request, reimburse Onyx at reasonable rates for any time spent and costs incurred in providing such cooperation to the Customer in the event of requests which are manifestly unfounded or excessive, in particular because of their repetitive nature.
Records. Onyx shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of Customer containing such information as required under Data Laws (“ Processing Records”), and shall make available to Customer on request in a timely manner such information (including the Processing Records) as is reasonably required by Customer to demonstrate compliance by Onyx with its obligations under Data Laws and this DPA.
Audits. Onyx shall allow for and contribute to audits, including inspections, conducted by Customer or an auditor mandated by Customer for the purpose of demonstrating Onyx’s compliance with its obligations under Data Laws and this DPA, subject to Customer giving ONYX reasonable prior notice of such audit and/or inspection, ensuring that any auditor is subject to binding obligations of confidentiality, and that such audit or inspection is undertaken at Customer’s sole expense and in a manner so as to cause minimal disruption to Onyx’s business and other customers. No such audit may take place more than once per twelve months unless otherwise required by Data Laws.
Notification. In respect of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data processed by Onyx under the Agreement, Onyx shall notify Customer of the breach without undue delay and provide Customer without undue delay with available details relating to the breach as Customer reasonably requests.
Destruction. Onyx shall without delay, at Customer’s written request, either securely delete or return all the Personal Data to Customer in hardcopy or electronic form after the end of the provision of the relevant services related to processing or, once processing is no longer required for the performance of the Agreement´s obligations, and securely delete existing copies (unless storage of any data is required by law, in which case Onyx shall notify Customer accordingly).
Language. This DPA is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of this DPA into another language is for convenience only, and no such translation will be binding against the parties hereto.
1To include the company of Onyx Group which will sign the contract with the customer.
Effective January 25, 2019 to September 30, 2020
DownloadTable of Contents
DATA PROCESSING ADDENDUM
This Data Processing Addendum (this “DPA”) is a binding legal agreement between [Pegasus Business Intelligence, LP d/b/a Onyx CenterSource]1 (together with its affiliates and/or other companies of Onyx Group, “ Onyx”) and the customer (“Customer”) that agrees to any order, terms and conditions (including Onyx’s standard online terms and conditions for its hotel and agency customers), or other agreement that references this DPA (the “ Agreement”).
Onyx’s Privacy Policy is available at https://www.onyxcentersource.com/privacy-policy/. This DPA governs Onyx’s processing of Personal Data relating to data subjects within the EEA or another jurisdiction with Data Laws that apply to Onyx; in such circumstances, this DPA will govern in the event of any conflict with Onyx’s Privacy Policy.
Definitions.
“EEA” means the European Economic Area.
“Data Laws” means any applicable laws regarding data privacy, including (as applicable and without limitation) the GDPR.
“GDPR” means EU General Data Protection Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
“Personal Data” means any information made available by Customer to Onyx that (i) can be used, alone or in connection with other information, to identify an individual; or (ii) is otherwise subject to any Data Laws.
Purpose. Customer has requested Onyx provide certain services as further described and agreed in the Agreement. Onyx requires access to certain Personal Data on behalf of the Customer in order to be able to fulfill its obligations and provide the services under the Agreement.
Roles. Customer is the entity legally responsible for determining the purposes and means of processing of the Personal Data. Customer is the “ Controller” and Onyx the “Processor”, as those terms are used in applicable Data Laws. Customer represents and warrants that it has obtained any necessary consents and authorizations required under Data Laws, and is otherwise fully entitled to transmit any Personal Data to Onyx, all for purposes of processing pursuant to the Agreement. Each party will comply with all applicable Data Laws.
Transfers from the EEA to third countries located outside of the EEA and to the US. Onyx has self-certified under the EU-US Privacy Shield Framework as set forth by the US Department of commerce regarding the collection, use and retention of personal information transferred from the EEA to the United States. Onyx shall only transfer Personal Data to third parties located outside of the EEA and in the US, based on the prior consent of the Customer and/or the subscription with such companies of standard data protection clauses adopted by the European Commission to the transfer of data to third countries in accordance with Article 46.2 of the GDPR and/or where the European Commission has decided that, the third country ensures an adequate level of protection, such as the certification under the EU-US Privacy Shield Framework.
Scope and Instructions. Onyx will process the Personal Data only on and in accordance with Customer’s documented instructions. The parties agree and acknowledge that the Agreement constitutes Customer’s instructions as to the subject matter, type of Personal Data, and duration of processing to be provided by Onyx pursuant thereto. To the extent permitted by law, Onyx will promptly inform Customer of any legal requirement that would require Onyx to process the Personal Data other than pursuant to Customer’s documented instructions, or if Onyx believes Customer’s instructions violate any Data Laws.
Security. Onyx shall implement and maintain appropriate technical and organizational measures in relation to the processing of Personal Data, such that the processing will meet the requirements of Data Laws. For purposes of this section, “appropriate” means commercially reasonable based on an assessment of the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
Subprocessors. Onyx shall not engage a subprocessor to perform specific processing activities in respect of the Personal Data on behalf of Customer without prior written consent of Customer and, if Customer gives its consent, Onyx shall appoint the subprocessor under a binding written contract which imposes the same data protection obligations as are contained in this DPA. Customer hereby expressly authorizes Onyx to engage subprocessors for provision of technological services and maintenance of systems (between others, data hosting) that facilitate Onyx’s provision of its services generally across its customer base (including, but not specifically for, Customer). Onyx will notify Customer, through the Legal Notice in the Onyx Network, about any change in its subprocessors, giving Customer an opportunity to object to any changes. Onyx will use commercially reasonable efforts to address any such objections, but the parties agree and acknowledge that Onyx may be unable to accommodate requests from any one customer as relates to Onyx’s uniform provision of the services across its customer base as a whole.
Personnel. Onyx shall ensure that its personnel processing Personal Data have signed agreements requiring them to keep Personal Data confidential or are under an appropriate statutory obligation of confidentiality. Onyx shall ensure that its personnel processing Personal Data have received formation about Personal Data protection.
Assistance. Taking into account the nature of the processing under the Agreement, Onyx shall implement and maintain appropriate technical and organisational measures to assist Customer, insofar as this is possible, in the fulfilment of Customer’s obligations to respond to data subject requests for exercising any right of the data subject under Data Laws. Onyx will ensure that all data subject requests it receives are recorded and referred to Customer. Onyx shall provide reasonable assistance, information and cooperation to Customers to facilitate Customer’s compliance with its obligations under Data Laws. Customer will, at Onyx’s request, reimburse Onyx at reasonable rates for any time spent and costs incurred in providing such cooperation to the Customer in the event of requests which are manifestly unfounded or excessive, in particular because of their repetitive nature.
Records. Onyx shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of Customer containing such information as required under Data Laws (“ Processing Records”), and shall make available to Customer on request in a timely manner such information (including the Processing Records) as is reasonably required by Customer to demonstrate compliance by Onyx with its obligations under Data Laws and this DPA.
Audits. Onyx shall allow for and contribute to audits, including inspections, conducted by Customer or an auditor mandated by Customer for the purpose of demonstrating Onyx’s compliance with its obligations under Data Laws and this DPA, subject to Customer giving ONYX reasonable prior notice of such audit and/or inspection, ensuring that any auditor is subject to binding obligations of confidentiality, and that such audit or inspection is undertaken at Customer’s sole expense and in a manner so as to cause minimal disruption to Onyx’s business and other customers. No such audit may take place more than once per twelve months unless otherwise required by Data Laws.
Notification. In respect of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data processed by Onyx under the Agreement, Onyx shall notify Customer of the breach without undue delay and provide Customer without undue delay with available details relating to the breach as Customer reasonably requests.
Destruction. Onyx shall without delay, at Customer’s written request, either securely delete or return all the Personal Data to Customer in hardcopy or electronic form after the end of the provision of the relevant services related to processing or, once processing is no longer required for the performance of the Agreement´s obligations, and securely delete existing copies (unless storage of any data is required by law, in which case Onyx shall notify Customer accordingly).
Language. This DPA is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of this DPA into another language is for convenience only, and no such translation will be binding against the parties hereto.
1To include the company of Onyx Group which will sign the contract with the customer.
Effective December 12, 2018 to January 25, 2019
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PERSONAL DATA PROTECTION CLAUSE
1. Regarding the personal data to which ONYX may access during the execution of this Agreement (the “Personal Data”), Parties undertake the followings:
i. The Customer contracts the services provided by ONYX (described and agreed in this Agreement) in the context of the activities that ONYX develops in favor of its Customer. As a consequence of these services ONYX may access to certain Personal Data. ii. The Customer is the entity legally responsible of the Personal Data to which ONYX may access by virtue of this Agreement (the Customer will be referred as the “Controller” and ONYX as the “Processor”). It should be noted that the access of ONYX to the Personal Data will not be considered as a data communication since the access is necessary to provide a service to the Controller. However, it will be considered that data communication exists when the purpose of the access by ONYX is to establish a new link with the data subject. iii. ONYX complies with the EU-US Privacy Shield Framework as set forth by the US Department of commerce regarding the collection, use and retention of personal information transferred from the European Union to the United States, being adhered to the EU-US Privacy Shield Framework.
2. This Agreement will be governed by the Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (“GDPR”). Notwithstanding the foregoing, since the Customer and/or its establishments could have a different nationality than ONYX, the Personal Data could be subject to different legislations. Parties undertake to comply with any applicable legislation (jointly with GDPR and any other rules in force regarding the Personal Data, the “DP Laws”).
Accordingly:
i. Customer undertakes having obtained all the consents and/or authorizations requested by DP Law in order to give access ONYX to the Personal Data.
ii. Where ONYX processes Personal Data on behalf of the Customer, ONYX shall:
- procure that any person acting under its authority who has access to Personal Data shall process the Personal Data only on and in accordance with the Customer documented instructions (“Processing Instructions”); and
- immediately inform the Customer of any legal requirement that would require ONYX to process the Personal Data otherwise than only on the Processing Instructions, or if any Customer instructions infringes DP Laws.
iii. ONYX shall implement and maintain, appropriate technical and organisational measures in relation to the processing of Personal Data:
- such that the processing will meet the requirements of DP Laws and ensure the protection of the rights of data subjects;
- so as to ensure a level of security in respect of Personal Data processed by it is appropriate to the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
iv. Without prejudice to point iii) above, ONYX shall, in respect of all Personal Data processed by it under this Agreement, comply with the requirements regarding security of processing set out in DP Laws, all relevant Customer´s policies and in this Agreement.
v. ONYX shall not engage another subprocessor to perform specific processing activities in respect of the Personal Data on behalf of or the Customer without prior written consent of the Customer and, if the Customer gives its consent, ONYX shall appoint its subprocessor under a binding written contract which imposes the same data protection obligations as are contained in this Agreement on the Subprocessor. Notwithstanding the foregoing, the Customer expressly authorizes ONYX to subcontract the services of conservation or storage of the personal data by a third party (in a Datacenter, iCloud or similar). ONYX shall inform to the Customer, through the Legal Notice in the ONYX Network, about the details of the outsourcing service, giving the Customer the opportunity to object to any changes, and undertake to sign a contract with the third party in accordance with DP Laws and with this Agreement
vi. ONYX shall ensure that ONYX personnel processing Personal Data have signed agreements requiring them to keep Personal Data confidential, and take all reasonable steps to ensure the reliability of ONYX personnel processing Personal Data and that ONYX personnel processing Personal Data receive adequate training on compliance with this clause and the DP Laws applicable to the processing.
vii. ONYX shall implement and maintain, appropriate technical and organisational measures to assist the Customer in the fulfillment of the Customer’s obligations to respond to data subject requests relating to Personal Data (exercising any right of data subject under DP Laws), including to ensure that all data subject requests it receives are recorded and then referred to the Customer within three (3) business days of receipt of the request.
viii. ONYX shall provide reasonable assistance, information and cooperation to ONYX´s Customers to ensure compliance with their obligations under DP Laws.
ix. ONYX shall not transfer any Personal Data to any third party without prior written consent of the Customer, and under its instructions.
x. ONYX shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of the Customer containing such information as required under DP Laws and any other information the Customer reasonably require (“Processing Records”), and shall make available to the Customer on request in a timely manner such information (including the Processing Records) as is reasonably required by the Customer to demonstrate compliance by ONYX with its obligations under DP Laws and this Agreement, which the Customer may disclose to the Supervisory Authority or any other relevant regulatory authority.
xi. ONYX shall allow for and contribute to audits, including inspections, conducted by the Customer or an auditor mandated by the Customer for the purpose of demonstrating Customer’s compliance with its obligations under DP Laws and this Agreement, subject to Customer giving ONYX reasonable prior notice of such audit and/or inspection, and ensuring that any auditor is subject to binding obligations of confidentiality and that such audit or inspection is undertaken so as to cause minimal disruption to ONYX’s business and other customers.
xii. In respect of any personal data breach (actual or suspected) related to this Agreement, ONYX shall notify the Customer of the breach without undue delay (but in no event later than 12 hours after becoming aware of the personal data breach) and provide the Customer without undue delay (wherever possible, within 24 hours of becoming aware of the breach) with such details relating to the breach as reasonably requires.
xii. ONYX shall without delay, at the Customer written request, either securely delete or return all the Personal Data to the Customer in hardcopy or electronic form after the end of the provision of the relevant Services related to processing or, if earlier, as soon as processing by ONYX of any Personal Data is no longer required for the Customer’s performance of its obligations under this Agreement, and securely delete existing copies (unless storage of any data is required by law, and if so ONYX shall notify the Customer of this).
xiv. Parties agree and undertake to hold the other party harmless from any claim that may be filed as a result of the breach of the guarantees contained in this clause, and agree to pay any amounts that the other party may be obliged to pay as a result of such breach in the form of penalties, fines, indemnification, damages, loss and interest.
Terms and Conditions for Hotels
Effective November 16, 2023
DownloadTable of Contents
TERMS AND CONDITIONS FOR HOTEL CUSTOMERS
These Terms and Conditions for Hotel Customers (these “Terms”) are a binding legal agreement between the customer (“Customer”) executing an order form, purchase order, subscription agreement, enrollment form, or other transaction document that references these Terms (an “Order”), and Pegasus Business Intelligence, LP d/b/a Onyx CenterSource or the Onyx affiliate executing the Order (in either case, “Onyx”). By executing an Order, Customer agrees to be legally bound by the then-current version of these Terms.
1. DEFINITIONS.
“Agencies” means travel agencies and similar entities.
“Agreement” means the Order, these Terms, and any exhibits, policies, or documents referenced in any of the foregoing.
“Booking Data” means a file containing Customer booking information, as further described in Section 2.2 of these Terms.
“Commission” means a commission due from Customer to an Agency.
“Commissionable Transaction” means any reservation that is identified by Customer as fully or partially commissionable and for which the related Commission is processed under the Agreement.
“CommPay™ Services” means the general commission processing services offered by Onyx, as further described herein.
“Funding Notice” means statement sent to Customer by Onyx listing the amount of Commissions due to Agencies.
“GroupPay™ Services” means the group, meeting, and event commission processing services offered by Onyx, as further described herein.
“Order Date” means the effective date of the applicable Order.
“Processing Cycle” means the frequency with which Onyx receives the Booking Data from Customer, as set forth in the Order.
“Services” means the CommPay™ Services and, if included in a relevant Order, the GroupPay™ Services.
2. SERVICES.
2.1 Generally. Upon execution of an Order that includes CommPay™ Services and/or GroupPay™ Services, Onyx will add Customer to its system as a CommPay™ Services and/or GroupPay™ Services participant.
2.2 Booking Data. Each Processing Cycle, Customer will provide Onyx all information or data in a form reasonably requested by Onyx with respect to all reservations (including no-shows, cancellations and non-commissionable transactions) made with it by Agencies. Customers who receive GroupPay™ Services must also provide event name and any other information reasonably requested by Onyx related to any group, event, or meeting bookings.
2.3 Funding Notice; Distribution. Based on the Booking Data, Onyx will create and provide a Funding Notice for each Processing Cycle. Customer will transfer to Onyx all Commission amounts set forth in the Funding Notice within the timeframe set forth therein. After each Processing Cycle, Onyx will distribute the applicable Commission payments actually received from Customer to the relevant Agencies, in accordance with information provided by Customer. Onyx will distribute such payments: (i) to Members in the currency selected by such Members; and (ii) to Non-Members in U.S. Dollars unless otherwise set forth in the Order, or otherwise reasonably requested by Customer and agreed by Onyx. For avoidance of doubt, Onyx will have no obligation or responsibility to distribute any Commissions to Agencies beyond the amounts actually paid in advance to Onyx by Customer. If Customer disputes in good faith any amount due set forth in a Funding Notice, it will give Onyx written notice including reasonable details relating to the dispute. Any dispute that is not brought to the attention of Onyx within 60 days of Customer’s receipt of the applicable Funding Notice will be conclusively waived.
2.4 GroupPay™ Services. If an Order includes GroupPay™ Services, then in addition to processing group, event, and meeting Commission payments as described above, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
2.5 Commission Inquiries. If Onyx receives inquiries from Agencies regarding Commissions, it will use reasonable efforts to review, research and respond to such inquiries based on the Booking Data and other information received from Customer. Onyx will not be obligated to review, research, or respond to any inquiry that relates to a transaction completed more than 12 months prior to the receipt of such inquiry. Onyx may forward such inquiries to Customer for further review, and Customer will review and research any such inquiries and respond to Onyx reasonably promptly.
2.6 Implementation; Service Modification. The parties will use commercially reasonable efforts to implement the Services within 60 business days from the Order Date. Onyx may modify the Services in its discretion from time to time, provided that no such modification has a material adverse effect on Customer’s use of the Services.
2.7 Ownership. Onyx will retain all right, title, and interest in and to any information, software, or other materials provided or made available to Customer by Onyx in relation to the Services. Customer will retain all right, title, and interest in and to any information provided to Onyx by Customer in relation to the Services. Customer hereby grants Onyx a perpetual, irrevocable, fully paid and royalty free, worldwide license to use, copy, perform, modify and prepare derivative works based on any data, content or materials provided by Customer in connection with the Services. Onyx may aggregate or otherwise anonymize data such that it cannot be used to identify Customer or any individuals (“Aggregated Data”). Aggregated Data will not be deemed Confidential Information of Customer, and Onyx may retain, use, and disclose such Aggregated Data freely in its sole discretion.
2.8 Data Protection. Onyx’s Data Processing Addendum, available at http://signup.onyxcentersource.com/#data, is incorporated into and made a binding part of these Terms.
3. FEES AND PAYMENT.
3.1 Fees. Customer will pay Onyx the fees as set forth in the Order (“Fees”). All Fees are non-cancellable and non-refundable. Onyx may modify the fees and pricing structure annually by providing Customer notice of the new fees and pricing structure at least 90 days before they take effect.
3.2 Professional Services Fees. Onyx has no obligation to perform any services beyond the scope of the Services set forth herein. Any out-of-scope Fees requested by Customer will be performed at Onyx’s discretion and subject to Onyx’s then-current professional services rates.
3.3 Currency Exchange. Customer acknowledges that Onyx incurs costs and risks in converting currency for the benefit of Customer, and agrees that Onyx may include its standard margin or markup in the exchange rate to cover these items.
3.4 Taxes. All amounts payable hereunder are exclusive of sales, use, value-added, and other taxes, except for taxes based on Onyx’s income or payroll (collectively, “Taxes”). Customer will be responsible for and will submit to the relevant tax authority any Taxes levied on the Services. Customer will promptly pay to Onyx, upon demand, an amount equal to such Taxes actually paid or required to be collected or paid by Onyx for which Customer is responsible under this section.
4. TERM AND TERMINATION.
4.1 Term. Unless otherwise set forth in the Order, the Agreement is effective as of the Order Date and will continue for a period of three years (the “Initial Term”), at which point it will automatically renew for additional one year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party provides notice of non-renewal at least 90 days prior to the end of the then-current term.
4.2 Termination. Either party may terminate the Agreement if the other party materially breaches any of its obligations hereunder and does not cure such breach within 30 days of written notice by the non-breaching party. If Customer materially breaches the Agreement and does not cure such breach within 2 business days of notice, Onyx may suspend performance under the Agreement until such time as the breach is cured. Onyx is entitled to notify relevant Agencies of any such suspension, and the rest of the Agreement will remain in effect during the duration of any such suspension.
4.3 Effect of Termination. Upon any termination or expiration of the Agreement, Customer will promptly pay to Onyx any outstanding amounts owed to Onyx. In addition, if the Agreement is terminated due to Customer’s breach, Customer will pay Onyx an early termination fee of 50% of the Fees prorated to a monthly amount, multiplied by the number of months remaining in the then-current Initial or Renewal Term. The parties agree that this early termination fee is not a penalty but a reasonable estimate of Onyx’s damages in the event of termination for Customer’s breach, as Onyx’s actual damages may be difficult to readily ascertain. Sections 1, 2.7, 3, 4.3, 5, 7, 8, 9, and 10 will survive any termination or expiration of the Agreement.
5. CONFIDENTIALITY.
5.1 Definition. “Confidential Information” is any nonpublic information that one party discloses to the other in any form whatsoever which should, due to the nature of the information or the circumstances surrounding the disclosure, be reasonably understood to be confidential. Confidential Information includes without limitation software, processes, and other technical, financial, or other business information. Confidential Information does not include any information that: (a) was in or enters the public domain through no act or omission of the recipient; (b) the recipient can show was in its possession or known to it prior to the disclosure hereunder; (c) was independently developed by the recipient without use of or reference to any Confidential Information; or (d) is received by the recipient from a third party without breach of any confidentiality obligations.
5.2 Protection. The disclosing party at all times retains all right, title and interest in and to its Confidential Information. The recipient will maintain any Confidential Information in confidence using at least the same degree of care as it uses to protect its own confidential information, but no less than reasonable care. The recipient will not disclose any Confidential Information to any third party other than to its employees, subsidiaries and contractors who have a need to know and who are bound by obligations of confidentiality at least as restrictive as those set forth herein. The recipient will be responsible for any wrongful disclosure or use by any of its employees or contractors. In the event any court or other authority orders the recipient to disclose any Confidential Information, the recipient will promptly notify the disclosing party of such order and reasonably cooperate with the disclosing party to contest such disclosure, at the disclosing party’s expense. Upon any termination or expiration of the Agreement, or at any time upon the disclosing party’s reasonable request, the recipient will return or destroy any Confidential Information in its possession or control.
5.3 Network Security. It is the responsibility of the Customer to promptly notify Onyx when access to Onyx systems must be revoked. This requirement also includes contractors or third parties that access Onyx systems on behalf of the Customer. Upon written notice to Customer, Onyx may suspend the Services and Customer’s access to its system in response to what Onyx deems a reasonable network security threat, provided that the parties will then cooperate in good faith to resolve the problem and restore access.
5.4 Remedies. The parties acknowledge and agree that breach of this Section 5 may lead to irreparable harm for which monetary damages would be inadequate remedy, and that the non-breaching party will thus be entitled to seek equitable relief, including injunctive relief, in addition to any other rights and remedies at law or under the Agreement.
6. REPRESENTATIONS. Each party represents and warrants that: (i) it has the right, power and authority to enter into the Agreement and to fully perform all of its obligations thereunder; (ii) entering into the Agreement does not violate any agreement or obligation existing between it and any third party; and (iii) it has, and will at all times maintain, commercially reasonable network security policies and procedures. Customer represents and warrants that any information it provides to Onyx under the Agreement will be complete and accurate.
6.1 Anti-bribery/Anti-corruption. Customer hereby represents, warrants and covenants to Onyx that neither Customer nor any of its directors, officers, agents, stockholders or employees acting on behalf of Customer, has not and will not, , in connection with the transactions contemplated by the Agreement or in connection with any other business transactions involving Onyx, directly or indirectly give or promise to give, offer, agree, confer or agree to confer, authorize, request, accept or agree to accept any payment or transfer of any money or other thing of value to anyone as an unlawful inducement or reward for favorable action or forbearance from action or the exercise of unlawful influence any government official, political party or any other person to misuse his or her position in order to gain an improper business or commercial advantage or to engage in conduct that is otherwise illegal under any applicable domestic or international anti-corruption laws and regulations, including, but not limited to, the U.S. Foreign Corrupt Practices Act (“FCPA”).
6.2 Termination Right. In the event that Onyx believes, in good faith, that Customer has acted in any way that may subject Onyx to liability under any applicable domestic or international anti-corruption laws and regulations, including, but not limited to, the FCPA, 18 U.S.C. § 201, Onyx shall have the unilateral right, exercisable immediately upon written notice to Customer, to terminate the Agreement, subject to the provisions of section 4.3 of the Agreement.
7. INDEMNITY. Customer will defend, indemnify and hold harmless Onyx, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by them in connection with a third party claim arising out of: (i) Customer’s use of the Services; (ii) Onyx’s use of information provided by Customer; or (iii) Customer’s breach of the Agreement.
8. DISCLAIMER. Onyx’s role as a commission processor hereunder is that of a clearinghouse only, and Onyx has no responsibility or obligation to: (i) distribute any Commissions allegedly owed by Customer to Agencies beyond any Commission payments Onyx has actually received from Customer; or (ii) resolve or be involved in any dispute between Customer and any Agency. Onyx has no responsibility for the acts or omissions of third parties including those related to wire transfer, direct deposit, or other services related to the Agreement. Onyx is not responsible for any inaccuracies in any information provided by Customer. Onyx is not responsible for the availability or functionality of Customer’s and third parties’ hardware, software, and networks which may be required for the Services to be effective. THE SERVICES AND ANY INFORMATION OR OTHER MATERIALS PROVIDED BY ONYX TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ONYX HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PERFORMANCE, NON-INFRINGEMENT, OR TITLE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE AGREEMENT BY ONYX IS TERMINATION OF THE AGREEMENT.
9. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTION 5 AND THE INDEMNIFICATION OBLIGATIONS IN SECTION 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OF THE OTHER PARTY THAT RESULT FROM OR ARE RELATED TO THE AGREEMENT, EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ONYX’S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS UNDER THE AGREEMENT EXCEED THE FEES ACTUALLY RECEIVED BY ONYX FROM CUSTOMER IN THE 12 MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO A CLAIM FOR SUCH DAMAGES.
10. MISCELLANEOUS.
10.1 Notice. Any notice given by Customer hereunder must be sent in writing to Onyx at Two Lincoln Centre, 5420 LBJ Freeway, Suite 900, Dallas, TX 75240. Onyx may provide notice to Customer hereunder in writing or by email using the contact information set forth in the applicable Order. Customer is responsible for ensuring such contact information stays current, and may update its contact information by providing Onyx written notice of any such updates.
10.2 Modifications. Onyx may update or revise these Terms from time to time. Onyx will make the then-current version of these Terms available on its website. By continuing to use the Services after these Terms have been updated, Customer agrees to be bound by then then-currently posted version of these Terms.
10.3 Governing Law. Based on which Onyx entity that signs the applicable Order, (a) the Agreement will be governed by the laws of the jurisdiction stated below, without regard to its conflict of law principles, and (b) all disputes hereunder will be resolved in the applicable courts located in the jurisdiction stated below. The parties consent to the exclusive jurisdiction of such courts and waive any jurisdictional or venue defenses otherwise available.
| Onyx Entity | Governing Law | Venue |
| Onyx CenterSource Spain, S.A. | Spanish law | Seville, Spain |
| Pegasus Business Intelligence, LP d/b/a Onyx CenterSource | Texas law (USA) | Dallas County, Texas |
10.4 Publicity. Onyx may use Customer’s name and address in any listing, advertisement or promotional material to indicate that Customer is receives the Services from Onyx and endorses the Services.
10.5 Force Majeure. Other than Customer’s obligation to pay Fees, neither party shall be liable to the other for any failure to meet its obligations if such failure is due to any cause beyond the non-performing party's reasonable control.
10.6 No Waiver. Non-enforcement by either party of any term or condition of the Agreement will not constitute a waiver. Subject to Section 10.1 of these Terms, no waiver, amendment, alteration, or modification of the Agreement will be effective or binding unless it is set forth in a writing signed by duly authorized representatives of both parties.
10.7 Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity will not affect the validity or operation of any other provision and such invalid provision will be deemed severed from the Agreement.
10.8 Successors; Assignment. The Agreement will be binding on and will inure to the benefit of the parties hereto and their permitted heirs, administrators, successors, and assigns. The Agreement may not be assigned, conveyed, or otherwise transferred by Customer except with prior written consent of Onyx. Any attempted assignment in violation of this section will be null and void.
10.9 Independent Contractors. The parties are independent contractors. Nothing herein will be construed to create a partnership, joint venture, or similar arrangement between Onyx and Customer. Neither party shall be deemed to be an agent, employee, or representative of the other.
10.10 Entire Agreement. The Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, with regard to the subject matter hereof.
10.11 Language. This Agreement is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of these Terms or this Agreement into another language is for convenience only, and no such translation will be binding against the parties hereto.
Effective November 16, 2023 to November 16, 2023
DownloadTable of Contents
TERMS AND CONDITIONS FOR HOTEL CUSTOMERS
These Terms and Conditions for Hotel Customers (these “Terms”) are a binding legal agreement between the customer (“Customer”) executing an order form, purchase order, subscription agreement, enrollment form, or other transaction document that references these Terms (an “Order”), and Pegasus Business Intelligence, LP d/b/a Onyx CenterSource or the Onyx affiliate executing the Order (in either case, “Onyx”). By executing an Order, Customer agrees to be legally bound by the then-current version of these Terms.
1. DEFINITIONS.
“Agencies” means travel agencies and similar entities.
“Agreement” means the Order, these Terms, and any exhibits, policies, or documents referenced in any of the foregoing.
“Booking Data” means a file containing Customer booking information, as further described in Section 2.2 of these Terms.
“Commission” means a commission due from Customer to an Agency.
“Commissionable Transaction” means any reservation that is identified by Customer as fully or partially commissionable and for which the related Commission is processed under the Agreement.
“CommPay™ Services” means the general commission processing services offered by Onyx, as further described herein.
“Funding Notice” means statement sent to Customer by Onyx listing the amount of Commissions due to Agencies.
“GroupPay™ Services” means the group, meeting, and event commission processing services offered by Onyx, as further described herein.
“Order Date” means the effective date of the applicable Order.
“Processing Cycle” means the frequency with which Onyx receives the Booking Data from Customer, as set forth in the Order.
“Services” means the CommPay™ Services and, if included in a relevant Order, the GroupPay™ Services.
2. SERVICES.
2.1 Generally. Upon execution of an Order that includes CommPay™ Services and/or GroupPay™ Services, Onyx will add Customer to its system as a CommPay™ Services and/or GroupPay™ Services participant.
2.2 Booking Data. Each Processing Cycle, Customer will provide Onyx all information or data in a form reasonably requested by Onyx with respect to all reservations (including no-shows, cancellations and non-commissionable transactions) made with it by Agencies. Customers who receive GroupPay™ Services must also provide event name and any other information reasonably requested by Onyx related to any group, event, or meeting bookings.
2.3 Funding Notice; Distribution. Based on the Booking Data, Onyx will create and provide a Funding Notice for each Processing Cycle. Customer will transfer to Onyx all Commission amounts set forth in the Funding Notice within the timeframe set forth therein. After each Processing Cycle, Onyx will distribute the applicable Commission payments actually received from Customer to the relevant Agencies, in accordance with information provided by Customer. Onyx will distribute such payments: (i) to Members in the currency selected by such Members; and (ii) to Non-Members in U.S. Dollars unless otherwise set forth in the Order, or otherwise reasonably requested by Customer and agreed by Onyx. For avoidance of doubt, Onyx will have no obligation or responsibility to distribute any Commissions to Agencies beyond the amounts actually paid in advance to Onyx by Customer. If Customer disputes in good faith any amount due set forth in a Funding Notice, it will give Onyx written notice including reasonable details relating to the dispute. Any dispute that is not brought to the attention of Onyx within 60 days of Customer’s receipt of the applicable Funding Notice will be conclusively waived.
2.4 GroupPay™ Services. If an Order includes GroupPay™ Services, then in addition to processing group, event, and meeting Commission payments as described above, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
2.5 Commission Inquiries. If Onyx receives inquiries from Agencies regarding Commissions, it will use reasonable efforts to review, research and respond to such inquiries based on the Booking Data and other information received from Customer. Onyx will not be obligated to review, research, or respond to any inquiry that relates to a transaction completed more than 12 months prior to the receipt of such inquiry. Onyx may forward such inquiries to Customer for further review, and Customer will review and research any such inquiries and respond to Onyx reasonably promptly.
2.6 Implementation; Service Modification. The parties will use commercially reasonable efforts to implement the Services within 60 business days from the Order Date. Onyx may modify the Services in its discretion from time to time, provided that no such modification has a material adverse effect on Customer’s use of the Services.
2.7 Ownership. Onyx will retain all right, title, and interest in and to any information, software, or other materials provided or made available to Customer by Onyx in relation to the Services. Customer will retain all right, title, and interest in and to any information provided to Onyx by Customer in relation to the Services. Customer hereby grants Onyx a perpetual, irrevocable, fully paid and royalty free, worldwide license to use, copy, perform, modify and prepare derivative works based on any data, content or materials provided by Customer in connection with the Services. Onyx may aggregate or otherwise anonymize data such that it cannot be used to identify Customer or any individuals (“Aggregated Data”). Aggregated Data will not be deemed Confidential Information of Customer, and Onyx may retain, use, and disclose such Aggregated Data freely in its sole discretion.
2.8 Data Protection. Onyx’s Data Processing Addendum, available at http://signup.onyxcentersource.com/#data, is incorporated into and made a binding part of these Terms.
3. FEES AND PAYMENT.
3.1 Fees. Customer will pay Onyx the fees as set forth in the Order (“Fees”). All Fees are non-cancellable and non-refundable. Onyx may modify the fees and pricing structure annually by providing Customer notice of the new fees and pricing structure at least 90 days before they take effect.
3.2 Professional Services Fees. Onyx has no obligation to perform any services beyond the scope of the Services set forth herein. Any out-of-scope Fees requested by Customer will be performed at Onyx’s discretion and subject to Onyx’s then-current professional services rates.
3.3 Currency Exchange. Customer acknowledges that Onyx incurs costs and risks in converting currency for the benefit of Customer, and agrees that Onyx may include its standard margin or markup in the exchange rate to cover these items.
3.4 Taxes. All amounts payable hereunder are exclusive of sales, use, value-added, and other taxes, except for taxes based on Onyx’s income or payroll (collectively, “Taxes”). Customer will be responsible for and will submit to the relevant tax authority any Taxes levied on the Services. Customer will promptly pay to Onyx, upon demand, an amount equal to such Taxes actually paid or required to be collected or paid by Onyx for which Customer is responsible under this section.
4. TERM AND TERMINATION.
4.1 Term. Unless otherwise set forth in the Order, the Agreement is effective as of the Order Date and will continue for a period of three years (the “Initial Term”), at which point it will automatically renew for additional one year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party provides notice of non-renewal at least 90 days prior to the end of the then-current term.
4.2 Termination. Either party may terminate the Agreement if the other party materially breaches any of its obligations hereunder and does not cure such breach within 30 days of written notice by the non-breaching party. If Customer materially breaches the Agreement and does not cure such breach within 2 business days of notice, Onyx may suspend performance under the Agreement until such time as the breach is cured. Onyx is entitled to notify relevant Agencies of any such suspension, and the rest of the Agreement will remain in effect during the duration of any such suspension.
4.3 Effect of Termination. Upon any termination or expiration of the Agreement, Customer will promptly pay to Onyx any outstanding amounts owed to Onyx. In addition, if the Agreement is terminated due to Customer’s breach, Customer will pay Onyx an early termination fee of 50% of the Fees prorated to a monthly amount, multiplied by the number of months remaining in the then-current Initial or Renewal Term. The parties agree that this early termination fee is not a penalty but a reasonable estimate of Onyx’s damages in the event of termination for Customer’s breach, as Onyx’s actual damages may be difficult to readily ascertain. Sections 1, 2.7, 3, 4.3, 5, 7, 8, 9, and 10 will survive any termination or expiration of the Agreement.
5. CONFIDENTIALITY.
5.1 Definition. “Confidential Information” is any nonpublic information that one party discloses to the other in any form whatsoever which should, due to the nature of the information or the circumstances surrounding the disclosure, be reasonably understood to be confidential. Confidential Information includes without limitation software, processes, and other technical, financial, or other business information. Confidential Information does not include any information that: (a) was in or enters the public domain through no act or omission of the recipient; (b) the recipient can show was in its possession or known to it prior to the disclosure hereunder; (c) was independently developed by the recipient without use of or reference to any Confidential Information; or (d) is received by the recipient from a third party without breach of any confidentiality obligations.
5.2 Protection. The disclosing party at all times retains all right, title and interest in and to its Confidential Information. The recipient will maintain any Confidential Information in confidence using at least the same degree of care as it uses to protect its own confidential information, but no less than reasonable care. The recipient will not disclose any Confidential Information to any third party other than to its employees, subsidiaries and contractors who have a need to know and who are bound by obligations of confidentiality at least as restrictive as those set forth herein. The recipient will be responsible for any wrongful disclosure or use by any of its employees or contractors. In the event any court or other authority orders the recipient to disclose any Confidential Information, the recipient will promptly notify the disclosing party of such order and reasonably cooperate with the disclosing party to contest such disclosure, at the disclosing party’s expense. Upon any termination or expiration of the Agreement, or at any time upon the disclosing party’s reasonable request, the recipient will return or destroy any Confidential Information in its possession or control.
5.3 Network Security. It is the responsibility of the Customer to promptly notify Onyx when access to Onyx systems must be revoked. This requirement also includes contractors or third parties that access Onyx systems on behalf of the Customer. Upon written notice to Customer, Onyx may suspend the Services and Customer’s access to its system in response to what Onyx deems a reasonable network security threat, provided that the parties will then cooperate in good faith to resolve the problem and restore access.
5.4 Remedies. The parties acknowledge and agree that breach of this Section 5 may lead to irreparable harm for which monetary damages would be inadequate remedy, and that the non-breaching party will thus be entitled to seek equitable relief, including injunctive relief, in addition to any other rights and remedies at law or under the Agreement.
6. REPRESENTATIONS. Each party represents and warrants that: (i) it has the right, power and authority to enter into the Agreement and to fully perform all of its obligations thereunder; (ii) entering into the Agreement does not violate any agreement or obligation existing between it and any third party; and (iii) it has, and will at all times maintain, commercially reasonable network security policies and procedures. Customer represents and warrants that any information it provides to Onyx under the Agreement will be complete and accurate.
6.1 Anti-bribery/Anti-corruption. Customer hereby represents, warrants and covenants to Onyx that neither Customer nor any of its directors, officers, agents, stockholders or employees acting on behalf of Customer, has not and will not, , in connection with the transactions contemplated by the Agreement or in connection with any other business transactions involving Onyx, directly or indirectly give or promise to give, offer, agree, confer or agree to confer, authorize, request, accept or agree to accept any payment or transfer of any money or other thing of value to anyone as an unlawful inducement or reward for favorable action or forbearance from action or the exercise of unlawful influence any government official, political party or any other person to misuse his or her position in order to gain an improper business or commercial advantage or to engage in conduct that is otherwise illegal under any applicable domestic or international anti-corruption laws and regulations, including, but not limited to, the U.S. Foreign Corrupt Practices Act (“FCPA”).
6.2 Termination Right. In the event that Onyx believes, in good faith, that Customer has acted in any way that may subject Onyx to liability under any applicable domestic or international anti-corruption laws and regulations, including, but not limited to, the FCPA, 18 U.S.C. § 201, Onyx shall have the unilateral right, exercisable immediately upon written notice to Customer, to terminate the Agreement, subject to the provisions of section 4.3 of the Agreement.
7. INDEMNITY. Customer will defend, indemnify and hold harmless Onyx, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by them in connection with a third party claim arising out of: (i) Customer’s use of the Services; (ii) Onyx’s use of information provided by Customer; or (iii) Customer’s breach of the Agreement.
8. DISCLAIMER. Onyx’s role as a commission processor hereunder is that of a clearinghouse only, and Onyx has no responsibility or obligation to: (i) distribute any Commissions allegedly owed by Customer to Agencies beyond any Commission payments Onyx has actually received from Customer; or (ii) resolve or be involved in any dispute between Customer and any Agency. Onyx has no responsibility for the acts or omissions of third parties including those related to wire transfer, direct deposit, or other services related to the Agreement. Onyx is not responsible for any inaccuracies in any information provided by Customer. Onyx is not responsible for the availability or functionality of Customer’s and third parties’ hardware, software, and networks which may be required for the Services to be effective. THE SERVICES AND ANY INFORMATION OR OTHER MATERIALS PROVIDED BY ONYX TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ONYX HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PERFORMANCE, NON-INFRINGEMENT, OR TITLE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE AGREEMENT BY ONYX IS TERMINATION OF THE AGREEMENT.
9. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTION 5 AND THE INDEMNIFICATION OBLIGATIONS IN SECTION 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OF THE OTHER PARTY THAT RESULT FROM OR ARE RELATED TO THE AGREEMENT, EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ONYX’S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS UNDER THE AGREEMENT EXCEED THE FEES ACTUALLY RECEIVED BY ONYX FROM CUSTOMER IN THE 12 MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO A CLAIM FOR SUCH DAMAGES.
10. MISCELLANEOUS.
10.1 Notice. Any notice given by Customer hereunder must be sent in writing to Onyx at Two Lincoln Centre, 5420 LBJ Freeway, Suite 900, Dallas, TX 75240. Onyx may provide notice to Customer hereunder in writing or by email using the contact information set forth in the applicable Order. Customer is responsible for ensuring such contact information stays current, and may update its contact information by providing Onyx written notice of any such updates.
10.2 Modifications. Onyx may update or revise these Terms from time to time. Onyx will make the then-current version of these Terms available on its website. By continuing to use the Services after these Terms have been updated, Customer agrees to be bound by then then-currently posted version of these Terms.
10.3 Governing Law. Based on which Onyx entity that signs the applicable Order, (a) the Agreement will be governed by the laws of the jurisdiction stated below, without regard to its conflict of law principles, and (b) all disputes hereunder will be resolved in the applicable courts located in the jurisdiction stated below. The parties consent to the exclusive jurisdiction of such courts and waive any jurisdictional or venue defenses otherwise available.
| Onyx Entity | Governing Law | Venue |
| Onyx CenterSource Spain, S.A., d/b/a Onyx CenterSource | Spanish law | Seville, Spain |
| Pegasus Business Intelligence, LP d/b/a Onyx CenterSource | Texas law (USA) | Dallas County, Texas |
10.4 Publicity. Onyx may use Customer’s name and address in any listing, advertisement or promotional material to indicate that Customer is receives the Services from Onyx and endorses the Services.
10.5 Force Majeure. Other than Customer’s obligation to pay Fees, neither party shall be liable to the other for any failure to meet its obligations if such failure is due to any cause beyond the non-performing party's reasonable control.
10.6 No Waiver. Non-enforcement by either party of any term or condition of the Agreement will not constitute a waiver. Subject to Section 10.1 of these Terms, no waiver, amendment, alteration, or modification of the Agreement will be effective or binding unless it is set forth in a writing signed by duly authorized representatives of both parties.
10.7 Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity will not affect the validity or operation of any other provision and such invalid provision will be deemed severed from the Agreement.
10.8 Successors; Assignment. The Agreement will be binding on and will inure to the benefit of the parties hereto and their permitted heirs, administrators, successors, and assigns. The Agreement may not be assigned, conveyed, or otherwise transferred by Customer except with prior written consent of Onyx. Any attempted assignment in violation of this section will be null and void.
10.9 Independent Contractors. The parties are independent contractors. Nothing herein will be construed to create a partnership, joint venture, or similar arrangement between Onyx and Customer. Neither party shall be deemed to be an agent, employee, or representative of the other.
10.10 Entire Agreement. The Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, with regard to the subject matter hereof.
10.11 Language. This Agreement is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of these Terms or this Agreement into another language is for convenience only, and no such translation will be binding against the parties hereto.
Effective May 5, 2023 to November 16, 2023
DownloadTable of Contents
TERMS AND CONDITIONS FOR HOTEL CUSTOMERS
These Terms and Conditions for Hotel Customers (these “Terms”) are a binding legal agreement between the customer (“Customer”) executing an order form, purchase order, subscription agreement, enrollment form, or other transaction document that references these Terms (an “Order”), and Pegasus Business Intelligence, LP d/b/a Onyx CenterSource or the Onyx affiliate executing the Order (in either case, “Onyx”). By executing an Order, Customer agrees to be legally bound by the then-current version of these Terms.
1. DEFINITIONS.
“Agencies” means travel agencies and similar entities.
“Agreement” means the Order, these Terms, and any exhibits, policies, or documents referenced in any of the foregoing.
“Booking Data” means a file containing Customer booking information, as further described in Section 2.2 of these Terms.
“Commission” means a commission due from Customer to an Agency.
“Commissionable Transaction” means any reservation that is identified by Customer as fully or partially commissionable and for which the related Commission is processed under the Agreement.
“CommPay™ Services” means the general commission processing services offered by Onyx, as further described herein.
“Funding Notice” means statement sent to Customer by Onyx listing the amount of Commissions due to Agencies.
“GroupPay™ Services” means the group, meeting, and event commission processing services offered by Onyx, as further described herein.
“Order Date” means the effective date of the applicable Order.
“Processing Cycle” means the frequency with which Onyx receives the Booking Data from Customer, as set forth in the Order.
“Services” means the CommPay™ Services and, if included in a relevant Order, the GroupPay™ Services.
2. SERVICES.
2.1 Generally. Upon execution of an Order that includes CommPay™ Services and/or GroupPay™ Services, Onyx will add Customer to its system as a CommPay™ Services and/or GroupPay™ Services participant.
2.2 Booking Data. Each Processing Cycle, Customer will provide Onyx all information or data in a form reasonably requested by Onyx with respect to all reservations (including no-shows, cancellations and non-commissionable transactions) made with it by Agencies. Customers who receive GroupPay™ Services must also provide event name and any other information reasonably requested by Onyx related to any group, event, or meeting bookings.
2.3 Funding Notice; Distribution. Based on the Booking Data, Onyx will create and provide a Funding Notice for each Processing Cycle. Customer will transfer to Onyx all Commission amounts set forth in the Funding Notice within the timeframe set forth therein. After each Processing Cycle, Onyx will distribute the applicable Commission payments actually received from Customer to the relevant Agencies, in accordance with information provided by Customer. Onyx will distribute such payments: (i) to Members in the currency selected by such Members; and (ii) to Non-Members in U.S. Dollars unless otherwise set forth in the Order, or otherwise reasonably requested by Customer and agreed by Onyx. For avoidance of doubt, Onyx will have no obligation or responsibility to distribute any Commissions to Agencies beyond the amounts actually paid in advance to Onyx by Customer. If Customer disputes in good faith any amount due set forth in a Funding Notice, it will give Onyx written notice including reasonable details relating to the dispute. Any dispute that is not brought to the attention of Onyx within 60 days of Customer’s receipt of the applicable Funding Notice will be conclusively waived.
2.4 GroupPay™ Services. If an Order includes GroupPay™ Services, then in addition to processing group, event, and meeting Commission payments as described above, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
2.5 Commission Inquiries. If Onyx receives inquiries from Agencies regarding Commissions, it will use reasonable efforts to review, research and respond to such inquiries based on the Booking Data and other information received from Customer. Onyx will not be obligated to review, research, or respond to any inquiry that relates to a transaction completed more than 12 months prior to the receipt of such inquiry. Onyx may forward such inquiries to Customer for further review, and Customer will review and research any such inquiries and respond to Onyx reasonably promptly.
2.6 Implementation; Service Modification. The parties will use commercially reasonable efforts to implement the Services within 60 business days from the Order Date. Onyx may modify the Services in its discretion from time to time, provided that no such modification has a material adverse effect on Customer’s use of the Services.
2.7 Ownership. Onyx will retain all right, title, and interest in and to any information, software, or other materials provided or made available to Customer by Onyx in relation to the Services. Customer will retain all right, title, and interest in and to any information provided to Onyx by Customer in relation to the Services. Customer hereby grants Onyx a perpetual, irrevocable, fully paid and royalty free, worldwide license to use, copy, perform, modify and prepare derivative works based on any data, content or materials provided by Customer in connection with the Services. Onyx may aggregate or otherwise anonymize data such that it cannot be used to identify Customer or any individuals (“Aggregated Data”). Aggregated Data will not be deemed Confidential Information of Customer, and Onyx may retain, use, and disclose such Aggregated Data freely in its sole discretion.
2.8 Data Protection. Onyx’s Data Processing Addendum, available at http://signup.onyxcentersource.com/#data, is incorporated into and made a binding part of these Terms.
3. FEES AND PAYMENT.
3.1 Fees. Customer will pay Onyx the fees as set forth in the Order (“Fees”). All Fees are non-cancellable and non-refundable. Onyx may modify the fees and pricing structure annually by providing Customer notice of the new fees and pricing structure at least 90 days before they take effect.
3.2 Professional Services Fees. Onyx has no obligation to perform any services beyond the scope of the Services set forth herein. Any out-of-scope Fees requested by Customer will be performed at Onyx’s discretion and subject to Onyx’s then-current professional services rates.
3.3 Currency Exchange. Customer acknowledges that Onyx incurs costs and risks in converting currency for the benefit of Customer, and agrees that Onyx may include its standard margin or markup in the exchange rate to cover these items.
3.4 Taxes. All amounts payable hereunder are exclusive of sales, use, value-added, and other taxes, except for taxes based on Onyx’s income or payroll (collectively, “Taxes”). Customer will be responsible for and will submit to the relevant tax authority any Taxes levied on the Services. Customer will promptly pay to Onyx, upon demand, an amount equal to such Taxes actually paid or required to be collected or paid by Onyx for which Customer is responsible under this section.
4. TERM AND TERMINATION.
4.1 Term. Unless otherwise set forth in the Order, the Agreement is effective as of the Order Date and will continue for a period of three years (the “Initial Term”), at which point it will automatically renew for additional one year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party provides notice of non-renewal at least 90 days prior to the end of the then-current term.
4.2 Termination. Either party may terminate the Agreement if the other party materially breaches any of its obligations hereunder and does not cure such breach within 30 days of written notice by the non-breaching party. If Customer materially breaches the Agreement and does not cure such breach within 2 business days of notice, Onyx may suspend performance under the Agreement until such time as the breach is cured. Onyx is entitled to notify relevant Agencies of any such suspension, and the rest of the Agreement will remain in effect during the duration of any such suspension.
4.3 Effect of Termination. Upon any termination or expiration of the Agreement, Customer will promptly pay to Onyx any outstanding amounts owed to Onyx. In addition, if the Agreement is terminated due to Customer’s breach, Customer will pay Onyx an early termination fee of 50% of the Fees prorated to a monthly amount, multiplied by the number of months remaining in the then-current Initial or Renewal Term. The parties agree that this early termination fee is not a penalty but a reasonable estimate of Onyx’s damages in the event of termination for Customer’s breach, as Onyx’s actual damages may be difficult to readily ascertain. Sections 1, 2.7, 3, 4.3, 5, 7, 8, 9, and 10 will survive any termination or expiration of the Agreement.
5. CONFIDENTIALITY.
5.1 Definition. “Confidential Information” is any nonpublic information that one party discloses to the other in any form whatsoever which should, due to the nature of the information or the circumstances surrounding the disclosure, be reasonably understood to be confidential. Confidential Information includes without limitation software, processes, and other technical, financial, or other business information. Confidential Information does not include any information that: (a) was in or enters the public domain through no act or omission of the recipient; (b) the recipient can show was in its possession or known to it prior to the disclosure hereunder; (c) was independently developed by the recipient without use of or reference to any Confidential Information; or (d) is received by the recipient from a third party without breach of any confidentiality obligations.
5.2 Protection. The disclosing party at all times retains all right, title and interest in and to its Confidential Information. The recipient will maintain any Confidential Information in confidence using at least the same degree of care as it uses to protect its own confidential information, but no less than reasonable care. The recipient will not disclose any Confidential Information to any third party other than to its employees, subsidiaries and contractors who have a need to know and who are bound by obligations of confidentiality at least as restrictive as those set forth herein. The recipient will be responsible for any wrongful disclosure or use by any of its employees or contractors. In the event any court or other authority orders the recipient to disclose any Confidential Information, the recipient will promptly notify the disclosing party of such order and reasonably cooperate with the disclosing party to contest such disclosure, at the disclosing party’s expense. Upon any termination or expiration of the Agreement, or at any time upon the disclosing party’s reasonable request, the recipient will return or destroy any Confidential Information in its possession or control.
5.3 Network Security. It is the responsibility of the Customer to promptly notify Onyx when access to Onyx systems must be revoked. This requirement also includes contractors or third parties that access Onyx systems on behalf of the Customer. Upon written notice to Customer, Onyx may suspend the Services and Customer’s access to its system in response to what Onyx deems a reasonable network security threat, provided that the parties will then cooperate in good faith to resolve the problem and restore access.
5.4 Remedies. The parties acknowledge and agree that breach of this Section 5 may lead to irreparable harm for which monetary damages would be inadequate remedy, and that the non-breaching party will thus be entitled to seek equitable relief, including injunctive relief, in addition to any other rights and remedies at law or under the Agreement.
6. REPRESENTATIONS. Each party represents and warrants that: (i) it has the right, power and authority to enter into the Agreement and to fully perform all of its obligations thereunder; (ii) entering into the Agreement does not violate any agreement or obligation existing between it and any third party; and (iii) it has, and will at all times maintain, commercially reasonable network security policies and procedures. Customer represents and warrants that any information it provides to Onyx under the Agreement will be complete and accurate.
6.1 Anti-bribery/Anti-corruption. Customer hereby represents, warrants and covenants to Onyx that neither Customer nor any of its directors, officers, agents, stockholders or employees acting on behalf of Customer, has not and will not, , in connection with the transactions contemplated by the Agreement or in connection with any other business transactions involving Onyx, directly or indirectly give or promise to give, offer, agree, confer or agree to confer, authorize, request, accept or agree to accept any payment or transfer of any money or other thing of value to anyone as an unlawful inducement or reward for favorable action or forbearance from action or the exercise of unlawful influence any government official, political party or any other person to misuse his or her position in order to gain an improper business or commercial advantage or to engage in conduct that is otherwise illegal under any applicable domestic or international anti-corruption laws and regulations, including, but not limited to, the U.S. Foreign Corrupt Practices Act (“FCPA”).
6.2 Termination Right. In the event that Onyx believes, in good faith, that Customer has acted in any way that may subject Onyx to liability under any applicable domestic or international anti-corruption laws and regulations, including, but not limited to, the FCPA, 18 U.S.C. § 201, Onyx shall have the unilateral right, exercisable immediately upon written notice to Customer, to terminate the Agreement, subject to the provisions of section 4.3 of the Agreement.
7. INDEMNITY. Customer will defend, indemnify and hold harmless Onyx, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by them in connection with a third party claim arising out of: (i) Customer’s use of the Services; (ii) Onyx’s use of information provided by Customer; or (iii) Customer’s breach of the Agreement.
8. DISCLAIMER. Onyx’s role as a commission processor hereunder is that of a clearinghouse only, and Onyx has no responsibility or obligation to: (i) distribute any Commissions allegedly owed by Customer to Agencies beyond any Commission payments Onyx has actually received from Customer; or (ii) resolve or be involved in any dispute between Customer and any Agency. Onyx has no responsibility for the acts or omissions of third parties including those related to wire transfer, direct deposit, or other services related to the Agreement. Onyx is not responsible for any inaccuracies in any information provided by Customer. Onyx is not responsible for the availability or functionality of Customer’s and third parties’ hardware, software, and networks which may be required for the Services to be effective. THE SERVICES AND ANY INFORMATION OR OTHER MATERIALS PROVIDED BY ONYX TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ONYX HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PERFORMANCE, NON-INFRINGEMENT, OR TITLE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE AGREEMENT BY ONYX IS TERMINATION OF THE AGREEMENT.
9. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTION 5 AND THE INDEMNIFICATION OBLIGATIONS IN SECTION 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OF THE OTHER PARTY THAT RESULT FROM OR ARE RELATED TO THE AGREEMENT, EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ONYX’S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS UNDER THE AGREEMENT EXCEED THE FEES ACTUALLY RECEIVED BY ONYX FROM CUSTOMER IN THE 12 MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO A CLAIM FOR SUCH DAMAGES.
10. MISCELLANEOUS.
10.1 Notice. Any notice given by Customer hereunder must be sent in writing to Onyx at Two Lincoln Centre, 5420 LBJ Freeway, Suite 900, Dallas, TX 75240. Onyx may provide notice to Customer hereunder in writing or by email using the contact information set forth in the applicable Order. Customer is responsible for ensuring such contact information stays current, and may update its contact information by providing Onyx written notice of any such updates.
10.2 Modifications. Onyx may update or revise these Terms from time to time. Onyx will make the then-current version of these Terms available on its website. By continuing to use the Services after these Terms have been updated, Customer agrees to be bound by then then-currently posted version of these Terms.
10.3 Governing Law. Based on which Onyx entity that signs the applicable Order, (a) the Agreement will be governed by the laws of the jurisdiction stated below, without regard to its conflict of law principles, and (b) all disputes hereunder will be resolved in the applicable courts located in the jurisdiction stated below. The parties consent to the exclusive jurisdiction of such courts and waive any jurisdictional or venue defenses otherwise available.
| Onyx Entity | Governing Law | Venue |
| Worldwide Payment Systems, S.A.U., d/b/a Onyx CenterSource | Spanish law | Seville, Spain |
| Pegasus Business Intelligence, LP d/b/a Onyx CenterSource | Texas law (USA) | Dallas County, Texas |
10.4 Publicity. Onyx may use Customer’s name and address in any listing, advertisement or promotional material to indicate that Customer is receives the Services from Onyx and endorses the Services.
10.5 Force Majeure. Other than Customer’s obligation to pay Fees, neither party shall be liable to the other for any failure to meet its obligations if such failure is due to any cause beyond the non-performing party's reasonable control.
10.6 No Waiver. Non-enforcement by either party of any term or condition of the Agreement will not constitute a waiver. Subject to Section 10.1 of these Terms, no waiver, amendment, alteration, or modification of the Agreement will be effective or binding unless it is set forth in a writing signed by duly authorized representatives of both parties.
10.7 Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity will not affect the validity or operation of any other provision and such invalid provision will be deemed severed from the Agreement.
10.8 Successors; Assignment. The Agreement will be binding on and will inure to the benefit of the parties hereto and their permitted heirs, administrators, successors, and assigns. The Agreement may not be assigned, conveyed, or otherwise transferred by Customer except with prior written consent of Onyx. Any attempted assignment in violation of this section will be null and void.
10.9 Independent Contractors. The parties are independent contractors. Nothing herein will be construed to create a partnership, joint venture, or similar arrangement between Onyx and Customer. Neither party shall be deemed to be an agent, employee, or representative of the other.
10.10 Entire Agreement. The Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, with regard to the subject matter hereof.
10.11 Language. This Agreement is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of these Terms or this Agreement into another language is for convenience only, and no such translation will be binding against the parties hereto.
Effective January 24, 2022 to May 5, 2023
DownloadTable of Contents
TERMS AND CONDITIONS FOR HOTEL CUSTOMERS
These Terms and Conditions for Hotel Customers (these “Terms”) are a binding legal agreement between the customer (“Customer”) executing an order form, purchase order, subscription agreement, enrollment form, or other transaction document that references these Terms (an “Order”), and Pegasus Business Intelligence, LP d/b/a Onyx CenterSource or the Onyx affiliate executing the Order (in either case, “Onyx”). By executing an Order, Customer agrees to be legally bound by the then-current version of these Terms.
1. DEFINITIONS.
“Agencies” means travel agencies and similar entities.
“Agreement” means the Order, these Terms, and any exhibits, policies, or documents referenced in any of the foregoing.
“Booking Data” means a file containing Customer booking information, as further described in Section 2.2 of these Terms.
“Commission” means a commission due from Customer to an Agency.
“Commissionable Transaction” means any reservation that is identified by Customer as fully or partially commissionable and for which the related Commission is processed under the Agreement.
“CommPay™ Services” means the general commission processing services offered by Onyx, as further described herein.
“Funding Notice” means statement sent to Customer by Onyx listing the amount of Commissions due to Agencies.
“GroupPay™ Services” means the group, meeting, and event commission processing services offered by Onyx, as further described herein.
“Order Date” means the effective date of the applicable Order.
“Processing Cycle” means the frequency with which Onyx receives the Booking Data from Customer, as set forth in the Order.
“Services” means the CommPay™ Services and, if included in a relevant Order, the GroupPay™ Services.
2. SERVICES.
2.1 Generally. Upon execution of an Order that includes CommPay™ Services and/or GroupPay™ Services, Onyx will add Customer to its system as a CommPay™ Services and/or GroupPay™ Services participant.
2.2 Booking Data. Each Processing Cycle, Customer will provide Onyx all information or data in a form reasonably requested by Onyx with respect to all reservations (including no-shows, cancellations and non-commissionable transactions) made with it by Agencies. Customers who receive GroupPay™ Services must also provide event name and any other information reasonably requested by Onyx related to any group, event, or meeting bookings.
2.3 Funding Notice; Distribution. Based on the Booking Data, Onyx will create and provide a Funding Notice for each Processing Cycle. Customer will transfer to Onyx all Commission amounts set forth in the Funding Notice within the timeframe set forth therein. After each Processing Cycle, Onyx will distribute the applicable Commission payments actually received from Customer to the relevant Agencies, in accordance with information provided by Customer. Onyx will distribute such payments: (i) to Members in the currency selected by such Members; and (ii) to Non-Members in U.S. Dollars unless otherwise set forth in the Order, or otherwise reasonably requested by Customer and agreed by Onyx. For avoidance of doubt, Onyx will have no obligation or responsibility to distribute any Commissions to Agencies beyond the amounts actually paid in advance to Onyx by Customer. If Customer disputes in good faith any amount due set forth in a Funding Notice, it will give Onyx written notice including reasonable details relating to the dispute. Any dispute that is not brought to the attention of Onyx within 60 days of Customer’s receipt of the applicable Funding Notice will be conclusively waived.
2.4 GroupPay™ Services. If an Order includes GroupPay™ Services, then in addition to processing group, event, and meeting Commission payments as described above, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
2.5 Commission Inquiries. If Onyx receives inquiries from Agencies regarding Commissions, it will use reasonable efforts to review, research and respond to such inquiries based on the Booking Data and other information received from Customer. Onyx will not be obligated to review, research, or respond to any inquiry that relates to a transaction completed more than 12 months prior to the receipt of such inquiry. Onyx may forward such inquiries to Customer for further review, and Customer will review and research any such inquiries and respond to Onyx reasonably promptly.
2.6 Implementation; Service Modification. The parties will use commercially reasonable efforts to implement the Services within 60 business days from the Order Date. Onyx may modify the Services in its discretion from time to time, provided that no such modification has a material adverse effect on Customer’s use of the Services.
2.7 Ownership. Onyx will retain all right, title, and interest in and to any information, software, or other materials provided or made available to Customer by Onyx in relation to the Services. Customer will retain all right, title, and interest in and to any information provided to Onyx by Customer in relation to the Services. Customer hereby grants Onyx a perpetual, irrevocable, fully paid and royalty free, worldwide license to use, copy, perform, modify and prepare derivative works based on any data, content or materials provided by Customer in connection with the Services. Onyx may aggregate or otherwise anonymize data such that it cannot be used to identify Customer or any individuals (“Aggregated Data”). Aggregated Data will not be deemed Confidential Information of Customer, and Onyx may retain, use, and disclose such Aggregated Data freely in its sole discretion.
2.8 Data Protection. Onyx’s Data Processing Addendum, available here, is incorporated into and made a binding part of these Terms.
3. FEES AND PAYMENT.
3.1 Fees. Customer will pay Onyx the fees as set forth in the Order (“Fees”). All Fees are non-cancellable and non-refundable. Onyx may modify the fees and pricing structure annually by providing Customer notice of the new fees and pricing structure at least 90 days before they take effect.
3.2 Professional Services Fees. Onyx has no obligation to perform any services beyond the scope of the Services set forth herein. Any out-of-scope Fees requested by Customer will be performed at Onyx’s discretion and subject to Onyx’s then-current professional services rates.
3.3 Currency Exchange. Customer acknowledges that Onyx incurs costs and risks in converting currency for the benefit of Customer, and agrees that Onyx may include its standard margin or markup in the exchange rate to cover these items.
3.4 Taxes. All amounts payable hereunder are exclusive of sales, use, value-added, and other taxes, except for taxes based on Onyx’s income or payroll (collectively, “Taxes”). Customer will be responsible for and will submit to the relevant tax authority any Taxes levied on the Services. Customer will promptly pay to Onyx, upon demand, an amount equal to such Taxes actually paid or required to be collected or paid by Onyx for which Customer is responsible under this section.
4. TERM AND TERMINATION.
4.1 Term. Unless otherwise set forth in the Order, the Agreement is effective as of the Order Date and will continue for a period of three years (the “Initial Term”), at which point it will automatically renew for additional one year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party provides notice of non-renewal at least 90 days prior to the end of the then-current term.
4.2 Termination. Either party may terminate the Agreement if the other party materially breaches any of its obligations hereunder and does not cure such breach within 30 days of written notice by the non-breaching party. If Customer materially breaches the Agreement and does not cure such breach within 2 business days of notice, Onyx may suspend performance under the Agreement until such time as the breach is cured. Onyx is entitled to notify relevant Agencies of any such suspension, and the rest of the Agreement will remain in effect during the duration of any such suspension.
4.3 Effect of Termination. Upon any termination or expiration of the Agreement, Customer will promptly pay to Onyx any outstanding amounts owed to Onyx. In addition, if the Agreement is terminated due to Customer’s breach, Customer will pay Onyx an early termination fee of 50% of the Fees prorated to a monthly amount, multiplied by the number of months remaining in the then-current Initial or Renewal Term. The parties agree that this early termination fee is not a penalty but a reasonable estimate of Onyx’s damages in the event of termination for Customer’s breach, as Onyx’s actual damages may be difficult to readily ascertain. Sections 1, 2.7, 3, 4.3, 5, 7, 8, 9, and 10 will survive any termination or expiration of the Agreement.
5. CONFIDENTIALITY.
5.1 Definition. “Confidential Information” is any nonpublic information that one party discloses to the other in any form whatsoever which should, due to the nature of the information or the circumstances surrounding the disclosure, be reasonably understood to be confidential. Confidential Information includes without limitation software, processes, and other technical, financial, or other business information. Confidential Information does not include any information that: (a) was in or enters the public domain through no act or omission of the recipient; (b) the recipient can show was in its possession or known to it prior to the disclosure hereunder; (c) was independently developed by the recipient without use of or reference to any Confidential Information; or (d) is received by the recipient from a third party without breach of any confidentiality obligations.
5.2 Protection. The disclosing party at all times retains all right, title and interest in and to its Confidential Information. The recipient will maintain any Confidential Information in confidence using at least the same degree of care as it uses to protect its own confidential information, but no less than reasonable care. The recipient will not disclose any Confidential Information to any third party other than to its employees, subsidiaries and contractors who have a need to know and who are bound by obligations of confidentiality at least as restrictive as those set forth herein. The recipient will be responsible for any wrongful disclosure or use by any of its employees or contractors. In the event any court or other authority orders the recipient to disclose any Confidential Information, the recipient will promptly notify the disclosing party of such order and reasonably cooperate with the disclosing party to contest such disclosure, at the disclosing party’s expense. Upon any termination or expiration of the Agreement, or at any time upon the disclosing party’s reasonable request, the recipient will return or destroy any Confidential Information in its possession or control.
5.3 Network Security. It is the responsibility of the Customer to promptly notify Onyx when access to Onyx systems must be revoked. This requirement also includes contractors or third parties that access Onyx systems on behalf of the Customer. Upon written notice to Customer, Onyx may suspend the Services and Customer’s access to its system in response to what Onyx deems a reasonable network security threat, provided that the parties will then cooperate in good faith to resolve the problem and restore access.
5.4 Remedies. The parties acknowledge and agree that breach of this Section 5 may lead to irreparable harm for which monetary damages would be inadequate remedy, and that the non-breaching party will thus be entitled to seek equitable relief, including injunctive relief, in addition to any other rights and remedies at law or under the Agreement.
6. REPRESENTATIONS. Each party represents and warrants that: (i) it has the right, power and authority to enter into the Agreement and to fully perform all of its obligations thereunder; (ii) entering into the Agreement does not violate any agreement or obligation existing between it and any third party; and (iii) it has, and will at all times maintain, commercially reasonable network security policies and procedures. Customer represents and warrants that any information it provides to Onyx under the Agreement will be complete and accurate.
7. INDEMNITY. Customer will defend, indemnify and hold harmless Onyx, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by them in connection with a third party claim arising out of: (i) Customer’s use of the Services; (ii) Onyx’s use of information provided by Customer; or (iii) Customer’s breach of the Agreement.
8. DISCLAIMER. Onyx’s role as a commission processor hereunder is that of a clearinghouse only, and Onyx has no responsibility or obligation to: (i) distribute any Commissions allegedly owed by Customer to Agencies beyond any Commission payments Onyx has actually received from Customer; or (ii) resolve or be involved in any dispute between Customer and any Agency. Onyx has no responsibility for the acts or omissions of third parties including those related to wire transfer, direct deposit, or other services related to the Agreement. Onyx is not responsible for any inaccuracies in any information provided by Customer. Onyx is not responsible for the availability or functionality of Customer’s and third parties’ hardware, software, and networks which may be required for the Services to be effective. THE SERVICES AND ANY INFORMATION OR OTHER MATERIALS PROVIDED BY ONYX TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ONYX HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PERFORMANCE, NON-INFRINGEMENT, OR TITLE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE AGREEMENT BY ONYX IS TERMINATION OF THE AGREEMENT.
9. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTION 5 AND THE INDEMNIFICATION OBLIGATIONS IN SECTION 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OF THE OTHER PARTY THAT RESULT FROM OR ARE RELATED TO THE AGREEMENT, EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ONYX’S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS UNDER THE AGREEMENT EXCEED THE FEES ACTUALLY RECEIVED BY ONYX FROM CUSTOMER IN THE 12 MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO A CLAIM FOR SUCH DAMAGES.
10. MISCELLANEOUS.
10.1 Notice. Any notice given by Customer hereunder must be sent in writing to Onyx at Two Lincoln Centre, 5420 LBJ Freeway, Suite 900, Dallas, TX 75240. Onyx may provide notice to Customer hereunder in writing or by email using the contact information set forth in the applicable Order. Customer is responsible for ensuring such contact information stays current, and may update its contact information by providing Onyx written notice of any such updates.
10.2 Modifications. Onyx may update or revise these Terms from time to time. Onyx will make the then-current version of these Terms available on its website. By continuing to use the Services after these Terms have been updated, Customer agrees to be bound by then then-currently posted version of these Terms.
10.3 Governing Law. Based on which Onyx entity that signs the applicable Order, (a) the Agreement will be governed by the laws of the jurisdiction stated below, without regard to its conflict of law principles, and (b) all disputes hereunder will be resolved in the applicable courts located in the jurisdiction stated below. The parties consent to the exclusive jurisdiction of such courts and waive any jurisdictional or venue defenses otherwise available.
| Onyx Entity | Governing Law | Venue |
| Worldwide Payment Systems, S.A.U., d/b/a Onyx CenterSource | Spanish law | Seville, Spain |
| Pegasus Business Intelligence, LP d/b/a Onyx CenterSource | Texas law (USA) | Dallas County, Texas |
10.4 Publicity. Onyx may use Customer’s name and address in any listing, advertisement or promotional material to indicate that Customer is receives the Services from Onyx and endorses the Services.
10.5 Force Majeure. Other than Customer’s obligation to pay Fees, neither party shall be liable to the other for any failure to meet its obligations if such failure is due to any cause beyond the non-performing party's reasonable control.
10.6 No Waiver. Non-enforcement by either party of any term or condition of the Agreement will not constitute a waiver. Subject to Section 10.1 of these Terms, no waiver, amendment, alteration, or modification of the Agreement will be effective or binding unless it is set forth in a writing signed by duly authorized representatives of both parties.
10.7 Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity will not affect the validity or operation of any other provision and such invalid provision will be deemed severed from the Agreement.
10.8 Successors; Assignment. The Agreement will be binding on and will inure to the benefit of the parties hereto and their permitted heirs, administrators, successors, and assigns. The Agreement may not be assigned, conveyed, or otherwise transferred by Customer except with prior written consent of Onyx. Any attempted assignment in violation of this section will be null and void.
10.9 Independent Contractors. The parties are independent contractors. Nothing herein will be construed to create a partnership, joint venture, or similar arrangement between Onyx and Customer. Neither party shall be deemed to be an agent, employee, or representative of the other.
10.10 Entire Agreement. The Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, with regard to the subject matter hereof.
10.11 Language. This Agreement is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of these Terms or this Agreement into another language is for convenience only, and no such translation will be binding against the parties hereto.
Effective January 25, 2019 to January 24, 2022
DownloadTable of Contents
TERMS AND CONDITIONS FOR HOTEL CUSTOMERS
These Terms and Conditions for Hotel Customers (these “Terms”) are a binding legal agreement between the customer (“Customer”) executing an order form, purchase order, subscription agreement, enrollment form, or other transaction document that references these Terms (an “Order”), and Pegasus Business Intelligence, LP d/b/a Onyx CenterSource or the Onyx affiliate executing the Order (in either case, “Onyx”). By executing an Order, Customer agrees to be legally bound by the then-current version of these Terms.
1. DEFINITIONS.
“Agencies” means travel agencies and similar entities.
“Agreement” means the Order, these Terms, and any exhibits, policies, or documents referenced in any of the foregoing.
“Booking Data” means a file containing Customer booking information, as further described in Section 2.2 of these Terms.
“Commission” means a commission due from Customer to an Agency.
“Commissionable Transaction” means any reservation that is identified by Customer as fully or partially commissionable and for which the related Commission is processed under the Agreement.
“CommPay™ Services” means the general commission processing services offered by Onyx, as further described herein.
“Funding Notice” means statement sent to Customer by Onyx listing the amount of Commissions due to Agencies.
“GroupPay™ Services” means the group, meeting, and event commission processing services offered by Onyx, as further described herein.
“Order Date” means the effective date of the applicable Order.
“Processing Cycle” means the frequency with which Onyx receives the Booking Data from Customer, as set forth in the Order.
“Services” means the CommPay™ Services and, if included in a relevant Order, the GroupPay™ Services.
2. SERVICES.
2.1 Generally. Upon execution of an Order that includes CommPay™ Services and/or GroupPay™ Services, Onyx will add Customer to its system as a CommPay™ Services and/or GroupPay™ Services participant.
2.2 Booking Data. Each Processing Cycle, Customer will provide Onyx all information or data in a form reasonably requested by Onyx with respect to all reservations (including no-shows, cancellations and non-commissionable transactions) made with it by Agencies. Customers who receive GroupPay™ Services must also provide event name and any other information reasonably requested by Onyx related to any group, event, or meeting bookings.
2.3 Funding Notice; Distribution. Based on the Booking Data, Onyx will create and provide a Funding Notice for each Processing Cycle. Customer will transfer to Onyx all Commission amounts set forth in the Funding Notice within the timeframe set forth therein. After each Processing Cycle, Onyx will distribute the applicable Commission payments actually received from Customer to the relevant Agencies, in accordance with information provided by Customer. Onyx will distribute such payments: (i) to Members in the currency selected by such Members; and (ii) to Non-Members in U.S. Dollars unless otherwise set forth in the Order, or otherwise reasonably requested by Customer and agreed by Onyx. For avoidance of doubt, Onyx will have no obligation or responsibility to distribute any Commissions to Agencies beyond the amounts actually paid in advance to Onyx by Customer. If Customer disputes in good faith any amount due set forth in a Funding Notice, it will give Onyx written notice including reasonable details relating to the dispute. Any dispute that is not brought to the attention of Onyx within 60 days of Customer’s receipt of the applicable Funding Notice will be conclusively waived.
2.4 GroupPay™ Services. If an Order includes GroupPay™ Services, then in addition to processing group, event, and meeting Commission payments as described above, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
2.5 Commission Inquiries. If Onyx receives inquiries from Agencies regarding Commissions, it will use reasonable efforts to review, research and respond to such inquiries based on the Booking Data and other information received from Customer. Onyx will not be obligated to review, research, or respond to any inquiry that relates to a transaction completed more than 12 months prior to the receipt of such inquiry. Onyx may forward such inquiries to Customer for further review, and Customer will review and research any such inquiries and respond to Onyx reasonably promptly.
2.6 Implementation; Service Modification. The parties will use commercially reasonable efforts to implement the Services within 60 business days from the Order Date. Onyx may modify the Services in its discretion from time to time, provided that no such modification has a material adverse effect on Customer’s use of the Services.
2.7 Ownership. Onyx will retain all right, title, and interest in and to any information, software, or other materials provided or made available to Customer by Onyx in relation to the Services. Customer will retain all right, title, and interest in and to any information provided to Onyx by Customer in relation to the Services. Customer hereby grants Onyx a perpetual, irrevocable, fully paid and royalty free, worldwide license to use, copy, perform, modify and prepare derivative works based on any data, content or materials provided by Customer in connection with the Services. Onyx may aggregate or otherwise anonymize data such that it cannot be used to identify Customer or any individuals (“Aggregated Data”). Aggregated Data will not be deemed Confidential Information of Customer, and Onyx may retain, use, and disclose such Aggregated Data freely in its sole discretion.
2.8 Data Protection. Onyx’s Data Processing Addendum, available here, is incorporated into and made a binding part of these Terms.
3. FEES AND PAYMENT.
3.1 Fees. Customer will pay Onyx the fees as set forth in the Order (“Fees”). All Fees are non-cancellable and non-refundable. Onyx may modify the fees and pricing structure annually by providing Customer notice of the new fees and pricing structure at least 90 days before they take effect.
3.2 Professional Services Fees. Onyx has no obligation to perform any services beyond the scope of the Services set forth herein. Any out-of-scope Fees requested by Customer will be performed at Onyx’s discretion and subject to Onyx’s then-current professional services rates.
3.3 Currency Exchange. Customer acknowledges that Onyx incurs costs and risks in converting currency for the benefit of Customer, and agrees that Onyx may include its standard margin or markup in the exchange rate to cover these items.
3.4 Taxes. All amounts payable hereunder are exclusive of sales, use, value-added, and other taxes, except for taxes based on Onyx’s income or payroll (collectively, “Taxes”). Customer will be responsible for and will submit to the relevant tax authority any Taxes levied on the Services. Customer will promptly pay to Onyx, upon demand, an amount equal to such Taxes actually paid or required to be collected or paid by Onyx for which Customer is responsible under this section.
4. TERM AND TERMINATION.
4.1 Term. Unless otherwise set forth in the Order, the Agreement is effective as of the Order Date and will continue for a period of three years (the “Initial Term”), at which point it will automatically renew for additional one year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party provides notice of non-renewal at least 90 days prior to the end of the then-current term.
4.2 Termination. Either party may terminate the Agreement if the other party materially breaches any of its obligations hereunder and does not cure such breach within 30 days of written notice by the non-breaching party. If Customer materially breaches the Agreement and does not cure such breach within 2 business days of notice, Onyx may suspend performance under the Agreement until such time as the breach is cured. Onyx is entitled to notify relevant Agencies of any such suspension, and the rest of the Agreement will remain in effect during the duration of any such suspension.
4.3 Effect of Termination. Upon any termination or expiration of the Agreement, Customer will promptly pay to Onyx any outstanding amounts owed to Onyx. In addition, if the Agreement is terminated due to Customer’s breach, Customer will pay Onyx an early termination fee of 50% of the Fees prorated to a monthly amount, multiplied by the number of months remaining in the then-current Initial or Renewal Term. The parties agree that this early termination fee is not a penalty but a reasonable estimate of Onyx’s damages in the event of termination for Customer’s breach, as Onyx’s actual damages may be difficult to readily ascertain. Sections 1, 2.7, 3, 4.3, 5, 7, 8, 9, and 10 will survive any termination or expiration of the Agreement.
5. CONFIDENTIALITY.
5.1 Definition. “Confidential Information” is any nonpublic information that one party discloses to the other in any form whatsoever which should, due to the nature of the information or the circumstances surrounding the disclosure, be reasonably understood to be confidential. Confidential Information includes without limitation software, processes, and other technical, financial, or other business information. Confidential Information does not include any information that: (a) was in or enters the public domain through no act or omission of the recipient; (b) the recipient can show was in its possession or known to it prior to the disclosure hereunder; (c) was independently developed by the recipient without use of or reference to any Confidential Information; or (d) is received by the recipient from a third party without breach of any confidentiality obligations.
5.2 Protection. The disclosing party at all times retains all right, title and interest in and to its Confidential Information. The recipient will maintain any Confidential Information in confidence using at least the same degree of care as it uses to protect its own confidential information, but no less than reasonable care. The recipient will not disclose any Confidential Information to any third party other than to its employees, subsidiaries and contractors who have a need to know and who are bound by obligations of confidentiality at least as restrictive as those set forth herein. The recipient will be responsible for any wrongful disclosure or use by any of its employees or contractors. In the event any court or other authority orders the recipient to disclose any Confidential Information, the recipient will promptly notify the disclosing party of such order and reasonably cooperate with the disclosing party to contest such disclosure, at the disclosing party’s expense. Upon any termination or expiration of the Agreement, or at any time upon the disclosing party’s reasonable request, the recipient will return or destroy any Confidential Information in its possession or control.
5.3 Network Security. Upon Onyx’s reasonable request, Customer will: (i) identify the employees or contractors it allows to access Onyx’s systems or platforms and promptly notify Onyx of any changes to this list; and (ii) complete a network security survey in a form provided by Onyx. Upon written notice to Customer, Onyx may suspend the Services and Customer’s access to its system in response to what Onyx deems a reasonable network security threat, provided that the parties will then cooperate in good faith to resolve the problem and restore access.
5.4 Remedies. The parties acknowledge and agree that breach of this Section 5 may lead to irreparable harm for which monetary damages would be inadequate remedy, and that the non-breaching party will thus be entitled to seek equitable relief, including injunctive relief, in addition to any other rights and remedies at law or under the Agreement.
6. REPRESENTATIONS. Each party represents and warrants that: (i) it has the right, power and authority to enter into the Agreement and to fully perform all of its obligations thereunder; (ii) entering into the Agreement does not violate any agreement or obligation existing between it and any third party; and (iii) it has, and will at all times maintain, commercially reasonable network security policies and procedures. Customer represents and warrants that any information it provides to Onyx under the Agreement will be complete and accurate.
7. INDEMNITY. Customer will defend, indemnify and hold harmless Onyx, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by them in connection with a third party claim arising out of: (i) Customer’s use of the Services; (ii) Onyx’s use of information provided by Customer; or (iii) Customer’s breach of the Agreement.
8. DISCLAIMER. Onyx’s role as a commission processor hereunder is that of a clearinghouse only, and Onyx has no responsibility or obligation to: (i) distribute any Commissions allegedly owed by Customer to Agencies beyond any Commission payments Onyx has actually received from Customer; or (ii) resolve or be involved in any dispute between Customer and any Agency. Onyx has no responsibility for the acts or omissions of third parties including those related to wire transfer, direct deposit, or other services related to the Agreement. Onyx is not responsible for any inaccuracies in any information provided by Customer. Onyx is not responsible for the availability or functionality of Customer’s and third parties’ hardware, software, and networks which may be required for the Services to be effective. THE SERVICES AND ANY INFORMATION OR OTHER MATERIALS PROVIDED BY ONYX TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ONYX HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PERFORMANCE, NON-INFRINGEMENT, OR TITLE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE AGREEMENT BY ONYX IS TERMINATION OF THE AGREEMENT.
9. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTION 5 AND THE INDEMNIFICATION OBLIGATIONS IN SECTION 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OF THE OTHER PARTY THAT RESULT FROM OR ARE RELATED TO THE AGREEMENT, EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ONYX’S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS UNDER THE AGREEMENT EXCEED THE FEES ACTUALLY RECEIVED BY ONYX FROM CUSTOMER IN THE 12 MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO A CLAIM FOR SUCH DAMAGES.
10. MISCELLANEOUS.
10.1 Notice. Any notice given by Customer hereunder must be sent in writing to Onyx at Two Lincoln Centre, 5420 LBJ Freeway, Suite 900, Dallas, TX 75240. Onyx may provide notice to Customer hereunder in writing or by email using the contact information set forth in the applicable Order. Customer is responsible for ensuring such contact information stays current, and may update its contact information by providing Onyx written notice of any such updates.
10.2 Modifications. Onyx may update or revise these Terms from time to time. Onyx will make the then-current version of these Terms available on its website. By continuing to use the Services after these Terms have been updated, Customer agrees to be bound by then then-currently posted version of these Terms.
10.3 Governing Law. Based on which Onyx entity that signs the applicable Order, (a) the Agreement will be governed by the laws of the jurisdiction stated below, without regard to its conflict of law principles, and (b) all disputes hereunder will be resolved in the applicable courts located in the jurisdiction stated below. The parties consent to the exclusive jurisdiction of such courts and waive any jurisdictional or venue defenses otherwise available.
| Onyx Entity | Governing Law | Venue |
| Worldwide Payment Systems, S.A.U., d/b/a Onyx CenterSource | Spanish law | Seville, Spain |
| Pegasus Business Intelligence, LP d/b/a Onyx CenterSource | Texas law (USA) | Dallas County, Texas |
10.4 Publicity. Onyx may use Customer’s name and address in any listing, advertisement or promotional material to indicate that Customer is receives the Services from Onyx and endorses the Services.
10.5 Force Majeure. Other than Customer’s obligation to pay Fees, neither party shall be liable to the other for any failure to meet its obligations if such failure is due to any cause beyond the non-performing party's reasonable control.
10.6 No Waiver. Non-enforcement by either party of any term or condition of the Agreement will not constitute a waiver. Subject to Section 10.1 of these Terms, no waiver, amendment, alteration, or modification of the Agreement will be effective or binding unless it is set forth in a writing signed by duly authorized representatives of both parties.
10.7 Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity will not affect the validity or operation of any other provision and such invalid provision will be deemed severed from the Agreement.
10.8 Successors; Assignment. The Agreement will be binding on and will inure to the benefit of the parties hereto and their permitted heirs, administrators, successors, and assigns. The Agreement may not be assigned, conveyed, or otherwise transferred by Customer except with prior written consent of Onyx. Any attempted assignment in violation of this section will be null and void.
10.9 Independent Contractors. The parties are independent contractors. Nothing herein will be construed to create a partnership, joint venture, or similar arrangement between Onyx and Customer. Neither party shall be deemed to be an agent, employee, or representative of the other.
10.10 Entire Agreement. The Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, with regard to the subject matter hereof.
10.11 Language. This Agreement is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of these Terms or this Agreement into another language is for convenience only, and no such translation will be binding against the parties hereto.
Effective December 12, 2018 to January 25, 2019
DownloadTable of Contents
TERMS AND CONDITIONS FOR HOTEL CUSTOMERS
These Terms and Conditions for Hotel Customers (these “Terms”) are a binding legal agreement between the customer (“Customer”) executing an order form, purchase order, subscription agreement, enrollment form, or other transaction document that references these Terms (an “Order”), and Pegasus Business Intelligence, LP d/b/a Onyx CenterSource or the Onyx affiliate executing the Order (in either case, “Onyx”). By executing an Order, Customer agrees to be legally bound by the then-current version of these Terms.
1. DEFINITIONS.
“Agencies” means travel agencies and similar entities.
“Agreement” means the Order, these Terms, and any exhibits, policies, or documents referenced in any of the foregoing.
“Booking Data” means a file containing Customer booking information, as further described in Section 2.2 of these Terms.
“Commission” means a commission due from Customer to an Agency.
“Commissionable Transaction” means any reservation that is identified by Customer as fully or partially commissionable and for which the related Commission is processed under the Agreement.
“CommPay™ Services” means the general commission processing services offered by Onyx, as further described herein.
“Funding Notice” means statement sent to Customer by Onyx listing the amount of Commissions due to Agencies.
“GroupPay™ Services” means the group, meeting, and event commission processing services offered by Onyx, as further described herein.
“Order Date” means the effective date of the applicable Order.
“Processing Cycle” means the frequency with which Onyx receives the Booking Data from Customer, as set forth in the Order.
“Services” means the CommPay™ Services and, if included in a relevant Order, the GroupPay™ Services.
2. SERVICES.
2.1 Generally. Upon execution of an Order that includes CommPay™ Services and/or GroupPay™ Services, Onyx will add Customer to its system as a CommPay™ Services and/or GroupPay™ Services participant.
2.2 Booking Data. Each Processing Cycle, Customer will provide Onyx all information or data in a form reasonably requested by Onyx with respect to all reservations (including no-shows, cancellations and non-commissionable transactions) made with it by Agencies. Customers who receive GroupPay™ Services must also provide event name and any other information reasonably requested by Onyx related to any group, event, or meeting bookings.
2.3 Funding Notice; Distribution. Based on the Booking Data, Onyx will create and provide a Funding Notice for each Processing Cycle. Customer will transfer to Onyx all Commission amounts set forth in the Funding Notice within the timeframe set forth therein. After each Processing Cycle, Onyx will distribute the applicable Commission payments actually received from Customer to the relevant Agencies, in accordance with information provided by Customer. Onyx will distribute such payments: (i) to Members in the currency selected by such Members; and (ii) to Non-Members in U.S. Dollars unless otherwise set forth in the Order, or otherwise reasonably requested by Customer and agreed by Onyx. For avoidance of doubt, Onyx will have no obligation or responsibility to distribute any Commissions to Agencies beyond the amounts actually paid in advance to Onyx by Customer. If Customer disputes in good faith any amount due set forth in a Funding Notice, it will give Onyx written notice including reasonable details relating to the dispute. Any dispute that is not brought to the attention of Onyx within 60 days of Customer’s receipt of the applicable Funding Notice will be conclusively waived.
2.4 GroupPay™ Services. If an Order includes GroupPay™ Services, then in addition to processing group, event, and meeting Commission payments as described above, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
2.5 Commission Inquiries. If Onyx receives inquiries from Agencies regarding Commissions, it will use reasonable efforts to review, research and respond to such inquiries based on the Booking Data and other information received from Customer. Onyx will not be obligated to review, research, or respond to any inquiry that relates to a transaction completed more than 12 months prior to the receipt of such inquiry. Onyx may forward such inquiries to Customer for further review, and Customer will review and research any such inquiries and respond to Onyx reasonably promptly.
2.6 Implementation; Service Modification. The parties will use commercially reasonable efforts to implement the Services within 60 business days from the Order Date. Onyx may modify the Services in its discretion from time to time, provided that no such modification has a material adverse effect on Customer’s use of the Services.
2.7 Ownership. Onyx will retain all right, title, and interest in and to any information, software, or other materials provided or made available to Customer by Onyx in relation to the Services. Customer will retain all right, title, and interest in and to any information provided to Onyx by Customer in relation to the Services. Customer hereby grants Onyx a perpetual, irrevocable, fully paid and royalty free, worldwide license to use, copy, perform, modify and prepare derivative works based on any data, content or materials provided by Customer in connection with the Services. Onyx may aggregate or otherwise anonymize data such that it cannot be used to identify Customer or any individuals (“Aggregated Data”). Aggregated Data will not be deemed Confidential Information of Customer, and Onyx may retain, use, and disclose such Aggregated Data freely in its sole discretion.
2.8 Data Protection. Onyx’s Data Processing Addendum, available here is incorporated into and made a binding part of these Terms.
3. FEES AND PAYMENT.
3.1 Fees. Customer will pay Onyx the fees as set forth in the Order (“Fees”). All Fees are non-cancellable and non-refundable. Onyx may modify the fees and pricing structure annually by providing Customer notice of the new fees and pricing structure at least 90 days before they take effect.
3.2 Professional Services Fees. Onyx has no obligation to perform any services beyond the scope of the Services set forth herein. Any out-of-scope Fees requested by Customer will be performed at Onyx’s discretion and subject to Onyx’s then-current professional services rates.
3.3 Currency Exchange. Customer acknowledges that Onyx incurs costs and risks in converting currency for the benefit of Customer, and agrees that Onyx may include its standard margin or markup in the exchange rate to cover these items.
3.4 Taxes. All amounts payable hereunder are exclusive of sales, use, value-added, and other taxes, except for taxes based on Onyx’s income or payroll (collectively, “Taxes”). Customer will be responsible for and will submit to the relevant tax authority any Taxes levied on the Services. Customer will promptly pay to Onyx, upon demand, an amount equal to such Taxes actually paid or required to be collected or paid by Onyx for which Customer is responsible under this section.
4. TERM AND TERMINATION.
4.1 Term. Unless otherwise set forth in the Order, the Agreement is effective as of the Order Date and will continue for a period of three years (the “Initial Term”), at which point it will automatically renew for additional one year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party provides notice of non-renewal at least 90 days prior to the end of the then-current term.
4.2 Termination. Either party may terminate the Agreement if the other party materially breaches any of its obligations hereunder and does not cure such breach within 30 days of written notice by the non-breaching party. If Customer materially breaches the Agreement and does not cure such breach within 2 business days of notice, Onyx may suspend performance under the Agreement until such time as the breach is cured. Onyx is entitled to notify relevant Agencies of any such suspension, and the rest of the Agreement will remain in effect during the duration of any such suspension.
4.3 Effect of Termination. Upon any termination or expiration of the Agreement, Customer will promptly pay to Onyx any outstanding amounts owed to Onyx. In addition, if the Agreement is terminated due to Customer’s breach, Customer will pay Onyx an early termination fee of 50% of the Fees prorated to a monthly amount, multiplied by the number of months remaining in the then-current Initial or Renewal Term. The parties agree that this early termination fee is not a penalty but a reasonable estimate of Onyx’s damages in the event of termination for Customer’s breach, as Onyx’s actual damages may be difficult to readily ascertain. Sections 1, 2.7, 3, 4.3, 5, 7, 8, 9, and 10 will survive any termination or expiration of the Agreement.
5. CONFIDENTIALITY.
5.1 Definition. “Confidential Information” is any nonpublic information that one party discloses to the other in any form whatsoever which should, due to the nature of the information or the circumstances surrounding the disclosure, be reasonably understood to be confidential. Confidential Information includes without limitation software, processes, and other technical, financial, or other business information. Confidential Information does not include any information that: (a) was in or enters the public domain through no act or omission of the recipient; (b) the recipient can show was in its possession or known to it prior to the disclosure hereunder; (c) was independently developed by the recipient without use of or reference to any Confidential Information; or (d) is received by the recipient from a third party without breach of any confidentiality obligations.
5.2 Protection. The disclosing party at all times retains all right, title and interest in and to its Confidential Information. The recipient will maintain any Confidential Information in confidence using at least the same degree of care as it uses to protect its own confidential information, but no less than reasonable care. The recipient will not disclose any Confidential Information to any third party other than to its employees, subsidiaries and contractors who have a need to know and who are bound by obligations of confidentiality at least as restrictive as those set forth herein. The recipient will be responsible for any wrongful disclosure or use by any of its employees or contractors. In the event any court or other authority orders the recipient to disclose any Confidential Information, the recipient will promptly notify the disclosing party of such order and reasonably cooperate with the disclosing party to contest such disclosure, at the disclosing party’s expense. Upon any termination or expiration of the Agreement, or at any time upon the disclosing party’s reasonable request, the recipient will return or destroy any Confidential Information in its possession or control.
5.3 Network Security. Upon Onyx’s reasonable request, Customer will: (i) identify the employees or contractors it allows to access Onyx’s systems or platforms and promptly notify Onyx of any changes to this list; and (ii) complete a network security survey in a form provided by Onyx. Upon written notice to Customer, Onyx may suspend the Services and Customer’s access to its system in response to what Onyx deems a reasonable network security threat, provided that the parties will then cooperate in good faith to resolve the problem and restore access.
5.4 Remedies. The parties acknowledge and agree that breach of this Section 5 may lead to irreparable harm for which monetary damages would be inadequate remedy, and that the non-breaching party will thus be entitled to seek equitable relief, including injunctive relief, in addition to any other rights and remedies at law or under the Agreement.
6. REPRESENTATIONS. Each party represents and warrants that: (i) it has the right, power and authority to enter into the Agreement and to fully perform all of its obligations thereunder; (ii) entering into the Agreement does not violate any agreement or obligation existing between it and any third party; and (iii) it has, and will at all times maintain, commercially reasonable network security policies and procedures. Customer represents and warrants that any information it provides to Onyx under the Agreement will be complete and accurate.
7. INDEMNITY. Customer will defend, indemnify and hold harmless Onyx, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by them in connection with a third party claim arising out of: (i) Customer’s use of the Services; (ii) Onyx’s use of information provided by Customer; or (iii) Customer’s breach of the Agreement.
8. DISCLAIMER. Onyx’s role as a commission processor hereunder is that of a clearinghouse only, and Onyx has no responsibility or obligation to: (i) distribute any Commissions allegedly owed by Customer to Agencies beyond any Commission payments Onyx has actually received from Customer; or (ii) resolve or be involved in any dispute between Customer and any Agency. Onyx has no responsibility for the acts or omissions of third parties including those related to wire transfer, direct deposit, or other services related to the Agreement. Onyx is not responsible for any inaccuracies in any information provided by Customer. Onyx is not responsible for the availability or functionality of Customer’s and third parties’ hardware, software, and networks which may be required for the Services to be effective. THE SERVICES AND ANY INFORMATION OR OTHER MATERIALS PROVIDED BY ONYX TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ONYX HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PERFORMANCE, NON-INFRINGEMENT, OR TITLE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE AGREEMENT BY ONYX IS TERMINATION OF THE AGREEMENT.
9. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTION 5 AND THE INDEMNIFICATION OBLIGATIONS IN SECTION 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OF THE OTHER PARTY THAT RESULT FROM OR ARE RELATED TO THE AGREEMENT, EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ONYX’S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS UNDER THE AGREEMENT EXCEED THE FEES ACTUALLY RECEIVED BY ONYX FROM CUSTOMER IN THE 12 MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO A CLAIM FOR SUCH DAMAGES.
10. MISCELLANEOUS.
10.1 Notice. Any notice given by Customer hereunder must be sent in writing to Onyx at Two Lincoln Centre, 5420 LBJ Freeway, Suite 900, Dallas, TX 75240. Onyx may provide notice to Customer hereunder in writing or by email using the contact information set forth in the applicable Order. Customer is responsible for ensuring such contact information stays current, and may update its contact information by providing Onyx written notice of any such updates.
10.2 Modifications. Onyx may update or revise these Terms from time to time. Onyx will make the then-current version of these Terms available on its website. By continuing to use the Services after these Terms have been updated, Customer agrees to be bound by then then-currently posted version of these Terms.
10.3 Governing Law. Based on which Onyx entity that signs the applicable Order, (a) the Agreement will be governed by the laws of the jurisdiction stated below, without regard to its conflict of law principles, and (b) all disputes hereunder will be resolved in the applicable courts located in the jurisdiction stated below. The parties consent to the exclusive jurisdiction of such courts and waive any jurisdictional or venue defenses otherwise available.
| Onyx Entity | Governing Law | Venue |
| Worldwide Payment Systems, S.A.U., d/b/a Onyx CenterSource | Spanish law | Seville, Spain |
| Pegasus Business Intelligence, LP d/b/a Onyx CenterSource | Texas law (USA) | Dallas County, Texas |
10.4 Publicity. Onyx may use Customer’s name and address in any listing, advertisement or promotional material to indicate that Customer is receives the Services from Onyx and endorses the Services.
10.5 Force Majeure. Other than Customer’s obligation to pay Fees, neither party shall be liable to the other for any failure to meet its obligations if such failure is due to any cause beyond the non-performing party's reasonable control.
10.6 No Waiver. Non-enforcement by either party of any term or condition of the Agreement will not constitute a waiver. Subject to Section 10.1 of these Terms, no waiver, amendment, alteration, or modification of the Agreement will be effective or binding unless it is set forth in a writing signed by duly authorized representatives of both parties.
10.7 Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity will not affect the validity or operation of any other provision and such invalid provision will be deemed severed from the Agreement.
10.8 Successors; Assignment. The Agreement will be binding on and will inure to the benefit of the parties hereto and their permitted heirs, administrators, successors, and assigns. The Agreement may not be assigned, conveyed, or otherwise transferred by Customer except with prior written consent of Onyx. Any attempted assignment in violation of this section will be null and void.
10.9 Independent Contractors. The parties are independent contractors. Nothing herein will be construed to create a partnership, joint venture, or similar arrangement between Onyx and Customer. Neither party shall be deemed to be an agent, employee, or representative of the other.
10.10 Entire Agreement. The Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, with regard to the subject matter hereof.
10.11 Language. This Agreement is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of these Terms or this Agreement into another language is for convenience only, and no such translation will be binding against the parties hereto.
Terms and Conditions for Agency Customers
Effective May 5, 2023
DownloadTable of Contents
TERMS AND CONDITIONS FOR AGENCY CUSTOMERS
These Terms and Conditions for Agency Customers (these “Terms”) are a binding legal agreement between the customer (“Customer”) executing an order form, purchase order, subscription agreement, enrollment form, or other transaction document that references these Terms (an “Order”), and Pegasus Business Intelligence, LP d/b/a Onyx CenterSource or the Onyx affiliate executing the Order (in either case, “Onyx”). By executing an Order, Customer agrees to be legally bound by the then-current version of these Terms.
1. DEFINITIONS.
“Agreement” means the Order, these Terms, and any exhibits, policies, or documents referenced in any of the foregoing.
“Commission Statement” means a statement issued as part of the Sure Pay™ Services that includes all Participant Commission Records with respect to the applicable Payment Period.
“Commissionable Reservation” means a Customer Reservation for which a commission is due from the relevant TSP to Customer.
“Customer Reservation” means a reservation made by Customer (by telephone or electronically) with a TSP.
“GroupPay™ Services” means granting Customer access to an online portal to view information regarding group, meeting, and event bookings, as described in Section 2.6 below.
“Order Date” means the effective date of the applicable Order.
“Participant” means a TSP that has a commission processing contract in place with Onyx.
“Participant Commission Record” means a record provided to Onyx by a Participant setting forth the amount of commissions due to Customer.
Payment Period” means the scheduled cycle on which Onyx distributes to Customer commission amounts received from TSPs (less any applicable Fees). The Payment Period is monthly, unless otherwise set forth in the applicable Order.
“Payment Report” means a record issued as part of the RecoverPro™ Services that includes all Customer Reservations confirmed by TSPs, including details of any Commissions paid thereon.
“RecoverPro™ Services” means the recovery service for unpaid commissions offered by Onyx, as further described herein.
“Services” means, to the extent ordered in the relevant Order, the Sure Pay™ Services, RecoverPro™ Services, and GroupPay™ Services.
“Sure Pay™ Services” means the general commission payment consolidation services offered by Onyx, as further described herein.
“TSP” means a hotel or similar travel service provider that receives Customer Reservations.
2. SERVICES.
2.1. Appointment; Customer Duties. During the Term, Customer appoints Onyx as its exclusive, worldwide and independent contractor to collect Customer Reservations, provide records of booking activities and consumption, and process commission payments under the terms of this Agreement. Customer will refrain from acting in any way to circumvent or interfere with the processing of commissions pursuant to this Agreement. Customer is solely responsible for notifying Onyx of any changes in ownership or other information, including without limitation changes in mailing address and ARC, IATA, or TIDS information as well as any legal entity information. Customer acknowledges and agrees that Onyx may use its affiliates worldwide to perform some or all of the Services hereunder.
2.2. Sure Pay™ Services. If an Order includes Sure Pay™ Services, Onyx will provide the commission consolidation services described in this paragraph. Within 15 business days after the end of each Payment Period, Onyx will: (a) consolidate by Participant those Participant Commission Records and corresponding commissions received by Onyx with respect to such Payment Period; (b) transmit to Customer the Commission Statement for such Payment Period; and (c) distribute to Customer the commissions actually received from the applicable Participants for such Payment Period, less any Fees. For Customers who receive only the Sure Pay™ Services (not RecoverPro™ Services), if a Participant pays Onyx less than the full amount of all commissions (including those due to Onyx’s other agency customers) and fees owed by such Participant, Onyx will have no obligation to distribute any amount to Customer until such Participant has made full payment of all commissions and fees.
2.3. RecoverPro™ Services. If an Order includes RecoverPro™ Services, the parties will fulfill the following duties:
a. Customer Duties. Customer responsibilities. Customer will provide Onyx all information or data in a standard format as provided by Onyx with respect to all Customer Reservations (including no-shows, cancellations and non-commissionable transactions) made by it with TSPs. Customer acknowledges and agrees Onyx may also collect relevant information regarding Customer Reservations from TSPs and other third parties. Customer will forward to Onyx any confirmations of Customer Reservations provided by TSPs directly to Customer, within 14 days of receipt by Customer. Customer acknowledges and agrees that Onyx’s ability to provide the Services depends on the data provided by Customer, and Customer will be responsible for any inaccuracies in such data. Customer is solely responsible for notifying Onyx of any changes in ownership or other information, including without limitation changes in mailing address and ARC, IATA, or TIDS information as well as any legal entity information. Customer is responsible for communicating any separate invoicing agreement, hereunder also self-billing agreements with any TSPs. Customer shall refrain from issuing invoices for commissions already invoiced through Onyx to prevent double invoicing.
b. Onyx Duties. Onyx will provide Customer the recovery services for unpaid commissions described in this paragraph. Onyx will: (a) issue notices to TSPs through automated processes for up to 12 months after check out date, setting out details of applicable Customer Reservations; (b) in the event Onyx believes (in its sole discretion) that a TSP has failed to respond or has underpaid commissions owed to Customer, take further actions towards such TSP that Onyx deems reasonable; (c) record all confirmations and details provided by TSPs with regards to Customer Reservations and corresponding commissions; (d) transmit the Payment Report to Customer; and (e) receive from TSPs commissions owed to Customer, and distribute to Customer such commissions (less any Fees) after each Payment Period; (f) provide Customer access to a web portal including Onyx’s standard suite of reports. Onyx will issue commission invoices to TSPs in the name of Customer, in accordance with the invoicing principles set forth at https://invoice.onyxcentersource.com/#/principles with regards to the Covered Areas defined therein.
2.4. Commission Distributions. After each Payment Period, Onyx will distribute any commission payments payable hereunder by bank transfer in the currency designated by Customer in the Order, unless otherwise reasonably requested by Customer and agreed by Onyx. For avoidance of doubt, Onyx will have no obligation or responsibility to distribute any commissions to Customer beyond the amounts actually paid in advance to Onyx by the relevant TSPs, less any Fees. If Onyx pays any amount to Customer in error, Customer will promptly repay such amounts to Onyx. Onyx may return to TSPs any commission amounts that are cannot be delivered to, or remain unclaimed by, Customer.
2.5. Service Providers. Onyx may work with third-party service providers to facilitate the performance of the Services, provided that Onyx will remain liable for such parties’ performance hereunder. If Customer’s authorization or approval is required by any partners or sub-suppliers, Customer will not unreasonably withhold such approval. Onyx is entitled to charge Customer for its costs for retaining the services of partners and/or sub suppliers.
2.6. GroupPay™ Services. If an Order includes GroupPay™ Services, Onyx will provide Customer access to certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
2.7. Ownership. Onyx will retain all right, title, and interest in and to any information, software, or other materials provided or made available to Customer by Onyx in relation to the Services. Customer will retain all right, title, and interest in and to any information provided to Onyx by Customer in relation to the Services. Customer hereby grants Onyx a perpetual, irrevocable, fully paid and royalty free, worldwide license to use, copy, perform, modify and prepare derivative works based on any data, content or materials provided by Customer in connection with the Services. Onyx may aggregate or otherwise anonymize data such that it cannot be used to identify Customer or any individuals (“Aggregated Data”). Aggregated Data will not be deemed Confidential Information of Customer, and Onyx may retain, use, and disclose such Aggregated Data freely in its sole discretion.
2.8. Data Protection. Onyx’s Data Processing Addendum, available at http://signup.onyxcentersource.com/#data, is incorporated into and made a binding part of these Terms.
2.9. Changes to Services. Onyx reserves the right to alter, change or improve any part of the Services as it deems necessary, including if required as a result of regulatory changes or other changes imposed by third parties beyond Onyx’s reasonable control. The Order is for Onyx to provide the standard Services it provides to its customers generally, and Onyx reserves the right to accept or reject any requested changes or modifications to such Services. Any such changes accepted by Onyx will be developed and implemented at Customer’s expense.
3. FEES AND PAYMENT.
3.1. Fees. Customer will pay Onyx the fees as set forth in the Order (together with any fees described in this Section 3, the “Fees”). All Fees are non-cancellable and non-refundable. Onyx may modify the Fees and pricing structure annually by providing Customer notice of the new fees and pricing structure at least 90 days before they take effect.
3.2. Professional Services Fees. Onyx has no obligation to perform any services beyond the scope of the Services set forth herein. Any out-of-scope Fees requested by Customer will be performed at Onyx’s discretion and subject to Onyx’s then-current professional services rates.
3.3. Currency Exchange and Banking Fees. Customer acknowledges that Onyx incurs costs and risks in converting currency for the benefit of Customer, and agrees that Onyx may include its standard margin or markup in the exchange rate to cover these items. To the extent Onyx carries out banking-related procedures or tasks (e.g., check cashing) in order to enhance the Services and/or reduce the overall costs, Onyx shall be entitled to charge the Customer for this work. Such currency exchange margins and markups, and banking-related fees, will be deemed Fees hereunder.
3.4. Offset. Onyx will have the right to offset any Fees and other amounts owed to it against any commissions to be distributed to Customer hereunder. In the event such offset results in Customer owing net amounts to Onyx, Onyx may invoice Customer for such amounts. Any such invoices will be paid by Customer within 14 days from the date of the invoice.
4. TERM AND TERMINATION.
4.1. Term. Unless otherwise set forth in the Order, the Agreement is effective as of the Order Date and will continue for a period of three years (the “Initial Term”), at which point it will automatically renew for additional one year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party provides notice of non-renewal at least 90 days prior to the end of the then-current term.
4.2. Termination. Either party may terminate the Agreement if the other party materially breaches any of its obligations hereunder and does not cure such breach within 30 days of written notice by the non-breaching party. If Customer materially breaches the Agreement and does not cure such breach within 2 business days of notice, Onyx may suspend performance under the Agreement until such time as the breach is cured. Onyx is entitled to notify relevant TSPs of any such suspension, and the rest of the Agreement will remain in effect during the duration of any such suspension.
4.3. Effect of Termination. Upon any termination or expiration of the Agreement, Customer will promptly pay to Onyx any outstanding amounts owed to Onyx. In addition, if the Agreement is terminated due to Customer’s breach, Customer will pay Onyx an early termination fee of 50% of the Fees prorated to a monthly amount, multiplied by the number of months remaining in the then-current Initial or Renewal Term. The parties agree that this early termination fee is not a penalty but a reasonable estimate of Onyx’s damages in the event of termination for Customer’s breach, as Onyx’s actual damages may be difficult to readily ascertain. Sections 1, 2.5, 2.8, 3, 4.3, 5, 7, 8, 9, and 10 will survive any termination or expiration of the Agreement.
5. CONFIDENTIALITY.
5.1. Definition. “Confidential Information” is any nonpublic information that one party discloses to the other in any form whatsoever which should, due to the nature of the information or the circumstances surrounding the disclosure, be reasonably understood to be confidential. Confidential Information includes without limitation software, processes, and other technical, financial, or other business information, and any pricing and other terms set out in the applicable Order. Confidential Information does not include any information that: (a) was in or enters the public domain through no act or omission of the recipient; (b) the recipient can show was in its possession or known to it prior to the disclosure hereunder; (c) was independently developed by the recipient without use of or reference to any Confidential Information; or (d) is received by the recipient from a third party without breach of any confidentiality obligations.
5.2. Protection. The disclosing party at all times retains all right, title and interest in and to its Confidential Information. The recipient will maintain any Confidential Information in confidence using at least the same degree of care as it uses to protect its own confidential information, but no less than reasonable care. The recipient will not disclose any Confidential Information to any third party other than to its employees, subsidiaries and contractors who have a need to know and who are bound by obligations of confidentiality at least as restrictive as those set forth herein. The recipient will be responsible for any wrongful disclosure or use by any of its employees or contractors. In the event any court or other authority orders the recipient to disclose any Confidential Information, the recipient will promptly notify the disclosing party of such order and reasonably cooperate with the disclosing party to contest such disclosure, at the disclosing party’s expense. Upon any termination or expiration of the Agreement, or at any time upon the disclosing party’s reasonable request, the recipient will return or destroy any Confidential Information in its possession or control.
5.3. Network Security. It is the responsibility of the Customer to promptly notify Onyx when access to Onyx systems must be revoked. This requirement also includes contractors or third parties that access Onyx systems on behalf of the Customer. Upon written notice to Customer, Onyx may suspend the Services and Customer’s access to its system in response to what Onyx deems a reasonable network security threat, provided that the parties will then cooperate in good faith to resolve the problem and restore access.
5.4. Remedies. The parties acknowledge and agree that breach of this Section 5 may lead to irreparable harm for which monetary damages would be inadequate remedy, and that the non-breaching party will thus be entitled to seek equitable relief, including injunctive relief, in addition to any other rights and remedies at law or under the Agreement.
6. REPRESENTATIONS. Each party represents and warrants that: (i) it has the right, power and authority to enter into the Agreement and to fully perform all of its obligations thereunder; (ii) entering into the Agreement does not violate any agreement or obligation existing between it and any third party; and (iii) it has, and will at all times maintain, commercially reasonable network security policies and procedures. Customer represents and warrants that any information it provides to Onyx under the Agreement will be complete and accurate.
6.1 Anti-bribery/Anti-corruption. Customer hereby represents, warrants and covenants to Onyx that neither Customer nor any of its directors, officers, agents, stockholders or employees acting on behalf of Customer, has not and will not, , in connection with the transactions contemplated by the Agreement or in connection with any other business transactions involving Onyx, directly or indirectly give or promise to give, offer, agree, confer or agree to confer, authorize, request, accept or agree to accept any payment or transfer of any money or other thing of value to anyone as an unlawful inducement or reward for favorable action or forbearance from action or the exercise of unlawful influence any government official, political party or any other person to misuse his or her position in order to gain an improper business or commercial advantage or to engage in conduct that is otherwise illegal under any applicable domestic or international anti-corruption laws and regulations, including, but not limited to, the U.S. Foreign Corrupt Practices Act (“FCPA”).
6.2 Termination Right. In the event that Onyx believes, in good faith, that Customer has acted in any way that may subject Onyx to liability under any applicable domestic or international anti-corruption laws and regulations, including, but not limited to, the FCPA, 18 U.S.C. § 201, Onyx shall have the unilateral right, exercisable immediately upon written notice to Customer, to terminate the Agreement, subject to the provisions of section 4.3 of the Agreement.
7. INDEMNITY. Customer will defend, indemnify and hold harmless Onyx, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by them in connection with a third party claim arising out of: (i) Customer’s use of the Services; (ii) Onyx’s use of information provided by Customer; or (iii) Customer’s breach of the Agreement.
8. DISCLAIMER. Onyx’s role as a commission processor hereunder is that of a clearinghouse only, and Onyx has no responsibility or obligation to: (i) distribute any commissions allegedly owed to Customer beyond any commission payments Onyx has actually received from TSPs; or (ii) resolve or be involved in any dispute between Customer and any TSP. Onyx has no responsibility, and Customer hereby releases Onyx, for the acts or omissions of third parties including those related to wire transfer, direct deposit, or other services related to the Agreement, or for a TSPs failure to pay commissions. Onyx is not responsible for any inaccuracies in any information provided by Customer or any TSPs or other third parties. Onyx is not responsible for the availability or functionality of Customer’s and third parties’ hardware, software, and networks which may be required for the Services to be effective. Customer’s sole and exclusive remedy for any error in any invoice or report will be for Onyx to reissue the affected invoice or report. THE SERVICES AND ANY INFORMATION OR OTHER MATERIALS PROVIDED BY ONYX TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ONYX HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PERFORMANCE, NON-INFRINGEMENT, OR TITLE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE AGREEMENT BY ONYX IS TERMINATION OF THE AGREEMENT.
9. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTION 5 AND THE INDEMNIFICATION OBLIGATIONS IN SECTION 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR UNPAID COMMISSIONS) OF THE OTHER PARTY THAT RESULT FROM OR ARE RELATED TO THE AGREEMENT, EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ONYX’S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS UNDER THE AGREEMENT EXCEED THE FEES ACTUALLY RECEIVED BY ONYX FROM CUSTOMER IN THE 12 MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO A CLAIM FOR SUCH DAMAGES.
10. MISCELLANEOUS.
10.1. Notice. Any notice of non-renewal, breach, or termination given by Customer hereunder must be sent in writing to Onyx at either Two Lincoln Centre, 5420 LBJ Freeway, Suite 900, Dallas, TX 75240 (if the applicable Order was signed by Pegasus Business Intelligence, LP d/b/a Onyx CenterSource) or P.O. Box 529, Rambergveien 1, Tonsberg, N-3101, Norway (if the applicable Order was signed by Onyx CenterSource AS). Any other communications from Customer may be sent via email at tasupport@onyxcentersource.com. Onyx may provide notice to Customer hereunder in writing or by email using the contact information set forth in the applicable Order. Customer is responsible for ensuring such contact information stays current, and may update its contact information by providing Onyx written notice of any such updates.
10.2. Modifications. Onyx may update or revise these Terms from time to time. Onyx will make the then-current version of these Terms available on its website. By continuing to use the Services after these Terms have been updated, Customer agrees to be bound by then then-currently posted version of these Terms.
10.3. Governing Law. Based on which Onyx entity that signs the applicable Order, (a) the Agreement will be governed by the laws of the jurisdiction stated below, without regard to its conflict of law principles, and (b) all disputes hereunder will be resolved in the applicable courts located in the jurisdiction stated below. The parties consent to the exclusive jurisdiction of such courts and waive any jurisdictional or venue defenses otherwise available.
| Onyx Entity | Governing Law | Venue |
| Pegasus Business Intelligence, LP d/b/a Onyx CenterSource | Texas law (USA) | Dallas County, Texas |
| Onyx CenterSource AS | Norwegian law | Oslo, Norway |
10.4. Publicity. Onyx may use Customer’s name and address in any listing, advertisement or promotional material to indicate that Customer is receives the Services from Onyx and endorses the Services.
10.5. Force Majeure. Other than Customer’s obligation to pay Fees, neither party shall be liable to the other for any failure to meet its obligations if such failure is due to any cause beyond the non-performing party's reasonable control.
10.6. No Waiver. Non-enforcement by either party of any term or condition of the Agreement will not constitute a waiver. Subject to Section 10.2 of these Terms, no waiver, amendment, alteration, or modification of the Agreement will be effective or binding unless it is set forth in a writing signed by duly authorized representatives of both parties.
10.7. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity will not affect the validity or operation of any other provision and such invalid provision will be deemed severed from the Agreement.
10.8. Successors; Assignment. The Agreement will be binding on and will inure to the benefit of the parties hereto and their permitted heirs, administrators, successors, and assigns. The Agreement may not be assigned, conveyed, or otherwise transferred by Customer except with prior written consent of Onyx. Any attempted assignment in violation of this section will be null and void.
10.9. Independent Contractors. The parties are independent contractors. Nothing herein will be construed to create a partnership, joint venture, or similar arrangement between Onyx and Customer. Neither party shall be deemed to be an agent, employee, or representative of the other.
10.10. Taxes. “Taxes” means all sales, use, VAT, GST, MVA, HST, and other revenue, direct, and indirect taxes that may be levied on either party arising out of this Agreement, the fees, or any commissions processed hereunder. All fees payable hereunder are exclusive of Taxes, except for those based on Onyx’s net income or payroll. Additionally, Customer will be solely responsible for calculating, reporting, and paying to the relevant tax authority any Taxes levied on the Services or the commissions distributed to Customer hereunder.
10.11. Entire Agreement. The Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, with regard to the subject matter hereof.
10.12. Language. This Agreement is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of these Terms or this Agreement into another language is for convenience only, and no such translation will be binding against the parties hereto.
Effective January 24, 2022 to May 5, 2023
DownloadTable of Contents
TERMS AND CONDITIONS FOR AGENCY CUSTOMERS
These Terms and Conditions for Agency Customers (these “Terms”) are a binding legal agreement between the customer (“Customer”) executing an order form, purchase order, subscription agreement, enrollment form, or other transaction document that references these Terms (an “Order”), and Pegasus Business Intelligence, LP d/b/a Onyx CenterSource or the Onyx affiliate executing the Order (in either case, “Onyx”). By executing an Order, Customer agrees to be legally bound by the then-current version of these Terms.
1. DEFINITIONS.
“Agreement” means the Order, these Terms, and any exhibits, policies, or documents referenced in any of the foregoing.
“Commission Statement” means a statement issued as part of the Sure Pay™ Services that includes all Participant Commission Records with respect to the applicable Payment Period.
“Commissionable Reservation” means a Customer Reservation for which a commission is due from the relevant TSP to Customer.
“Customer Reservation” means a reservation made by Customer (by telephone or electronically) with a TSP.
“GroupPay™ Services” means granting Customer access to an online portal to view information regarding group, meeting, and event bookings, as described in Section 2.6 below.
“Order Date” means the effective date of the applicable Order.
“Participant” means a TSP that has a commission processing contract in place with Onyx.
“Participant Commission Record” means a record provided to Onyx by a Participant setting forth the amount of commissions due to Customer.
Payment Period” means the scheduled cycle on which Onyx distributes to Customer commission amounts received from TSPs (less any applicable Fees). The Payment Period is monthly, unless otherwise set forth in the applicable Order.
“Payment Report” means a record issued as part of the RecoverPro™ Services that includes all Customer Reservations confirmed by TSPs, including details of any Commissions paid thereon.
“RecoverPro™ Services” means the recovery service for unpaid commissions offered by Onyx, as further described herein.
“Services” means, to the extent ordered in the relevant Order, the Sure Pay™ Services, RecoverPro™ Services, and GroupPay™ Services.
“Sure Pay™ Services” means the general commission payment consolidation services offered by Onyx, as further described herein.
“TSP” means a hotel or similar travel service provider that receives Customer Reservations.
2. SERVICES.
2.1. Appointment; Customer Duties. During the Term, Customer appoints Onyx as its exclusive, worldwide and independent contractor to collect Customer Reservations, provide records of booking activities and consumption, and process commission payments under the terms of this Agreement. Customer will refrain from acting in any way to circumvent or interfere with the processing of commissions pursuant to this Agreement. Customer is solely responsible for notifying Onyx of any changes in ownership or other information, including without limitation changes in mailing address and ARC, IATA, or TIDS information as well as any legal entity information. Customer acknowledges and agrees that Onyx may use its affiliates worldwide to perform some or all of the Services hereunder.
2.2. Sure Pay™ Services. If an Order includes Sure Pay™ Services, Onyx will provide the commission consolidation services described in this paragraph. Within 15 business days after the end of each Payment Period, Onyx will: (a) consolidate by Participant those Participant Commission Records and corresponding commissions received by Onyx with respect to such Payment Period; (b) transmit to Customer the Commission Statement for such Payment Period; and (c) distribute to Customer the commissions actually received from the applicable Participants for such Payment Period, less any Fees. For Customers who receive only the Sure Pay™ Services (not RecoverPro™ Services), if a Participant pays Onyx less than the full amount of all commissions (including those due to Onyx’s other agency customers) and fees owed by such Participant, Onyx will have no obligation to distribute any amount to Customer until such Participant has made full payment of all commissions and fees.
2.3. RecoverPro™ Services. If an Order includes RecoverPro™ Services, the parties will fulfill the following duties:
a. Customer Duties. Customer responsibilities. Customer will provide Onyx all information or data in a standard format as provided by Onyx with respect to all Customer Reservations (including no-shows, cancellations and non-commissionable transactions) made by it with TSPs. Customer acknowledges and agrees Onyx may also collect relevant information regarding Customer Reservations from TSPs and other third parties. Customer will forward to Onyx any confirmations of Customer Reservations provided by TSPs directly to Customer, within 14 days of receipt by Customer. Customer acknowledges and agrees that Onyx’s ability to provide the Services depends on the data provided by Customer, and Customer will be responsible for any inaccuracies in such data. Customer is solely responsible for notifying Onyx of any changes in ownership or other information, including without limitation changes in mailing address and ARC, IATA, or TIDS information as well as any legal entity information. Customer is responsible for communicating any separate invoicing agreement, hereunder also self-billing agreements with any TSPs. Customer shall refrain from issuing invoices for commissions already invoiced through Onyx to prevent double invoicing.
b. Onyx Duties. Onyx will provide Customer the recovery services for unpaid commissions described in this paragraph. Onyx will: (a) issue notices to TSPs through automated processes for up to 12 months after check out date, setting out details of applicable Customer Reservations; (b) in the event Onyx believes (in its sole discretion) that a TSP has failed to respond or has underpaid commissions owed to Customer, take further actions towards such TSP that Onyx deems reasonable; (c) record all confirmations and details provided by TSPs with regards to Customer Reservations and corresponding commissions; (d) transmit the Payment Report to Customer; and (e) receive from TSPs commissions owed to Customer, and distribute to Customer such commissions (less any Fees) after each Payment Period; (f) provide Customer access to a web portal including Onyx’s standard suite of reports. Onyx will issue commission invoices to TSPs in the name of Customer, in accordance with the invoicing principles set forth at https://invoice.onyxcentersource.com/#/principles with regards to the Covered Areas defined therein.
2.4. Commission Distributions. After each Payment Period, Onyx will distribute any commission payments payable hereunder by bank transfer in the currency designated by Customer in the Order, unless otherwise reasonably requested by Customer and agreed by Onyx. For avoidance of doubt, Onyx will have no obligation or responsibility to distribute any commissions to Customer beyond the amounts actually paid in advance to Onyx by the relevant TSPs, less any Fees. If Onyx pays any amount to Customer in error, Customer will promptly repay such amounts to Onyx. Onyx may return to TSPs any commission amounts that are cannot be delivered to, or remain unclaimed by, Customer.
2.5. Service Providers. Onyx may work with third-party service providers to facilitate the performance of the Services, provided that Onyx will remain liable for such parties’ performance hereunder. If Customer’s authorization or approval is required by any partners or sub-suppliers, Customer will not unreasonably withhold such approval. Onyx is entitled to charge Customer for its costs for retaining the services of partners and/or sub suppliers.
2.6. GroupPay™ Services. If an Order includes GroupPay™ Services, Onyx will provide Customer access to certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
2.7. Ownership. Onyx will retain all right, title, and interest in and to any information, software, or other materials provided or made available to Customer by Onyx in relation to the Services. Customer will retain all right, title, and interest in and to any information provided to Onyx by Customer in relation to the Services. Customer hereby grants Onyx a perpetual, irrevocable, fully paid and royalty free, worldwide license to use, copy, perform, modify and prepare derivative works based on any data, content or materials provided by Customer in connection with the Services. Onyx may aggregate or otherwise anonymize data such that it cannot be used to identify Customer or any individuals (“Aggregated Data”). Aggregated Data will not be deemed Confidential Information of Customer, and Onyx may retain, use, and disclose such Aggregated Data freely in its sole discretion.
2.8. Data Protection. Onyx’s Data Processing Addendum, available here, is incorporated into and made a binding part of these Terms.
2.9. Changes to Services. Onyx reserves the right to alter, change or improve any part of the Services as it deems necessary, including if required as a result of regulatory changes or other changes imposed by third parties beyond Onyx’s reasonable control. The Order is for Onyx to provide the standard Services it provides to its customers generally, and Onyx reserves the right to accept or reject any requested changes or modifications to such Services. Any such changes accepted by Onyx will be developed and implemented at Customer’s expense.
3. FEES AND PAYMENT.
3.1. Fees. Customer will pay Onyx the fees as set forth in the Order (together with any fees described in this Section 3, the “Fees”). All Fees are non-cancellable and non-refundable. Onyx may modify the Fees and pricing structure annually by providing Customer notice of the new fees and pricing structure at least 90 days before they take effect.
3.2. Professional Services Fees. Onyx has no obligation to perform any services beyond the scope of the Services set forth herein. Any out-of-scope Fees requested by Customer will be performed at Onyx’s discretion and subject to Onyx’s then-current professional services rates.
3.3. Currency Exchange and Banking Fees. Customer acknowledges that Onyx incurs costs and risks in converting currency for the benefit of Customer, and agrees that Onyx may include its standard margin or markup in the exchange rate to cover these items. To the extent Onyx carries out banking-related procedures or tasks (e.g., check cashing) in order to enhance the Services and/or reduce the overall costs, Onyx shall be entitled to charge the Customer for this work. Such currency exchange margins and markups, and banking-related fees, will be deemed Fees hereunder.
3.4. Offset. Onyx will have the right to offset any Fees and other amounts owed to it against any commissions to be distributed to Customer hereunder. In the event such offset results in Customer owing net amounts to Onyx, Onyx may invoice Customer for such amounts. Any such invoices will be paid by Customer within 14 days from the date of the invoice.
4. TERM AND TERMINATION.
4.1. Term. Unless otherwise set forth in the Order, the Agreement is effective as of the Order Date and will continue for a period of three years (the “Initial Term”), at which point it will automatically renew for additional one year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party provides notice of non-renewal at least 90 days prior to the end of the then-current term.
4.2. Termination. Either party may terminate the Agreement if the other party materially breaches any of its obligations hereunder and does not cure such breach within 30 days of written notice by the non-breaching party. If Customer materially breaches the Agreement and does not cure such breach within 2 business days of notice, Onyx may suspend performance under the Agreement until such time as the breach is cured. Onyx is entitled to notify relevant TSPs of any such suspension, and the rest of the Agreement will remain in effect during the duration of any such suspension.
4.3. Effect of Termination. Upon any termination or expiration of the Agreement, Customer will promptly pay to Onyx any outstanding amounts owed to Onyx. In addition, if the Agreement is terminated due to Customer’s breach, Customer will pay Onyx an early termination fee of 50% of the Fees prorated to a monthly amount, multiplied by the number of months remaining in the then-current Initial or Renewal Term. The parties agree that this early termination fee is not a penalty but a reasonable estimate of Onyx’s damages in the event of termination for Customer’s breach, as Onyx’s actual damages may be difficult to readily ascertain. Sections 1, 2.5, 2.8, 3, 4.3, 5, 7, 8, 9, and 10 will survive any termination or expiration of the Agreement.
5. CONFIDENTIALITY.
5.1. Definition. “Confidential Information” is any nonpublic information that one party discloses to the other in any form whatsoever which should, due to the nature of the information or the circumstances surrounding the disclosure, be reasonably understood to be confidential. Confidential Information includes without limitation software, processes, and other technical, financial, or other business information, and any pricing and other terms set out in the applicable Order. Confidential Information does not include any information that: (a) was in or enters the public domain through no act or omission of the recipient; (b) the recipient can show was in its possession or known to it prior to the disclosure hereunder; (c) was independently developed by the recipient without use of or reference to any Confidential Information; or (d) is received by the recipient from a third party without breach of any confidentiality obligations.
5.2. Protection. The disclosing party at all times retains all right, title and interest in and to its Confidential Information. The recipient will maintain any Confidential Information in confidence using at least the same degree of care as it uses to protect its own confidential information, but no less than reasonable care. The recipient will not disclose any Confidential Information to any third party other than to its employees, subsidiaries and contractors who have a need to know and who are bound by obligations of confidentiality at least as restrictive as those set forth herein. The recipient will be responsible for any wrongful disclosure or use by any of its employees or contractors. In the event any court or other authority orders the recipient to disclose any Confidential Information, the recipient will promptly notify the disclosing party of such order and reasonably cooperate with the disclosing party to contest such disclosure, at the disclosing party’s expense. Upon any termination or expiration of the Agreement, or at any time upon the disclosing party’s reasonable request, the recipient will return or destroy any Confidential Information in its possession or control.
5.3. Network Security. It is the responsibility of the Customer to promptly notify Onyx when access to Onyx systems must be revoked. This requirement also includes contractors or third parties that access Onyx systems on behalf of the Customer. Upon written notice to Customer, Onyx may suspend the Services and Customer’s access to its system in response to what Onyx deems a reasonable network security threat, provided that the parties will then cooperate in good faith to resolve the problem and restore access.
5.4. Remedies. The parties acknowledge and agree that breach of this Section 5 may lead to irreparable harm for which monetary damages would be inadequate remedy, and that the non-breaching party will thus be entitled to seek equitable relief, including injunctive relief, in addition to any other rights and remedies at law or under the Agreement.
6. REPRESENTATIONS. Each party represents and warrants that: (i) it has the right, power and authority to enter into the Agreement and to fully perform all of its obligations thereunder; (ii) entering into the Agreement does not violate any agreement or obligation existing between it and any third party; and (iii) it has, and will at all times maintain, commercially reasonable network security policies and procedures. Customer represents and warrants that any information it provides to Onyx under the Agreement will be complete and accurate.
7. INDEMNITY. Customer will defend, indemnify and hold harmless Onyx, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by them in connection with a third party claim arising out of: (i) Customer’s use of the Services; (ii) Onyx’s use of information provided by Customer; or (iii) Customer’s breach of the Agreement.
8. DISCLAIMER. Onyx’s role as a commission processor hereunder is that of a clearinghouse only, and Onyx has no responsibility or obligation to: (i) distribute any commissions allegedly owed to Customer beyond any commission payments Onyx has actually received from TSPs; or (ii) resolve or be involved in any dispute between Customer and any TSP. Onyx has no responsibility, and Customer hereby releases Onyx, for the acts or omissions of third parties including those related to wire transfer, direct deposit, or other services related to the Agreement, or for a TSPs failure to pay commissions. Onyx is not responsible for any inaccuracies in any information provided by Customer or any TSPs or other third parties. Onyx is not responsible for the availability or functionality of Customer’s and third parties’ hardware, software, and networks which may be required for the Services to be effective. Customer’s sole and exclusive remedy for any error in any invoice or report will be for Onyx to reissue the affected invoice or report. THE SERVICES AND ANY INFORMATION OR OTHER MATERIALS PROVIDED BY ONYX TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ONYX HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PERFORMANCE, NON-INFRINGEMENT, OR TITLE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE AGREEMENT BY ONYX IS TERMINATION OF THE AGREEMENT.
9. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTION 5 AND THE INDEMNIFICATION OBLIGATIONS IN SECTION 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR UNPAID COMMISSIONS) OF THE OTHER PARTY THAT RESULT FROM OR ARE RELATED TO THE AGREEMENT, EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ONYX’S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS UNDER THE AGREEMENT EXCEED THE FEES ACTUALLY RECEIVED BY ONYX FROM CUSTOMER IN THE 12 MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO A CLAIM FOR SUCH DAMAGES.
10. MISCELLANEOUS.
10.1. Notice. Any notice of non-renewal, breach, or termination given by Customer hereunder must be sent in writing to Onyx at either Two Lincoln Centre, 5420 LBJ Freeway, Suite 900, Dallas, TX 75240 (if the applicable Order was signed by Pegasus Business Intelligence, LP d/b/a Onyx CenterSource) or P.O. Box 529, Rambergveien 1, Tonsberg, N-3101, Norway (if the applicable Order was signed by Onyx CenterSource AS). Any other communications from Customer may be sent via email at tasupport@onyxcentersource.com. Onyx may provide notice to Customer hereunder in writing or by email using the contact information set forth in the applicable Order. Customer is responsible for ensuring such contact information stays current, and may update its contact information by providing Onyx written notice of any such updates.
10.2. Modifications. Onyx may update or revise these Terms from time to time. Onyx will make the then-current version of these Terms available on its website. By continuing to use the Services after these Terms have been updated, Customer agrees to be bound by then then-currently posted version of these Terms.
10.3. Governing Law. Based on which Onyx entity that signs the applicable Order, (a) the Agreement will be governed by the laws of the jurisdiction stated below, without regard to its conflict of law principles, and (b) all disputes hereunder will be resolved in the applicable courts located in the jurisdiction stated below. The parties consent to the exclusive jurisdiction of such courts and waive any jurisdictional or venue defenses otherwise available.
| Onyx Entity | Governing Law | Venue |
| Pegasus Business Intelligence, LP d/b/a Onyx CenterSource | Texas law (USA) | Dallas County, Texas |
| Onyx CenterSource AS | Norwegian law | Oslo, Norway |
10.4. Publicity. Onyx may use Customer’s name and address in any listing, advertisement or promotional material to indicate that Customer is receives the Services from Onyx and endorses the Services.
10.5. Force Majeure. Other than Customer’s obligation to pay Fees, neither party shall be liable to the other for any failure to meet its obligations if such failure is due to any cause beyond the non-performing party's reasonable control.
10.6. No Waiver. Non-enforcement by either party of any term or condition of the Agreement will not constitute a waiver. Subject to Section 10.2 of these Terms, no waiver, amendment, alteration, or modification of the Agreement will be effective or binding unless it is set forth in a writing signed by duly authorized representatives of both parties.
10.7. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity will not affect the validity or operation of any other provision and such invalid provision will be deemed severed from the Agreement.
10.8. Successors; Assignment. The Agreement will be binding on and will inure to the benefit of the parties hereto and their permitted heirs, administrators, successors, and assigns. The Agreement may not be assigned, conveyed, or otherwise transferred by Customer except with prior written consent of Onyx. Any attempted assignment in violation of this section will be null and void.
10.9. Independent Contractors. The parties are independent contractors. Nothing herein will be construed to create a partnership, joint venture, or similar arrangement between Onyx and Customer. Neither party shall be deemed to be an agent, employee, or representative of the other.
10.10. Taxes. “Taxes” means all sales, use, VAT, GST, MVA, HST, and other revenue, direct, and indirect taxes that may be levied on either party arising out of this Agreement, the fees, or any commissions processed hereunder. All fees payable hereunder are exclusive of Taxes, except for those based on Onyx’s net income or payroll. Additionally, Customer will be solely responsible for calculating, reporting, and paying to the relevant tax authority any Taxes levied on the Services or the commissions distributed to Customer hereunder.
10.11. Entire Agreement. The Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, with regard to the subject matter hereof.
10.12. Language. This Agreement is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of these Terms or this Agreement into another language is for convenience only, and no such translation will be binding against the parties hereto.
Effective January 28, 2019 to January 24, 2022
DownloadTable of Contents
TERMS AND CONDITIONS FOR AGENCY CUSTOMERS
These Terms and Conditions for Agency Customers (these “Terms”) are a binding legal agreement between the customer (“Customer”) executing an order form, purchase order, subscription agreement, enrollment form, or other transaction document that references these Terms (an “Order”), and Pegasus Business Intelligence, LP d/b/a Onyx CenterSource or the Onyx affiliate executing the Order (in either case, “Onyx”). By executing an Order, Customer agrees to be legally bound by the then-current version of these Terms.
1. DEFINITIONS.
“Agreement” means the Order, these Terms, and any exhibits, policies, or documents referenced in any of the foregoing.
“Commission Statement” means a statement issued as part of the Sure Pay™ Services that includes all Participant Commission Records with respect to the applicable Payment Period.
“Commissionable Reservation” means a Customer Reservation for which a commission is due from the relevant TSP to Customer.
“Customer Reservation” means a reservation made by Customer (by telephone or electronically) with a TSP.
“GroupPay™ Services” means granting Customer access to an online portal to view information regarding group, meeting, and event bookings, as described in Section 2.6 below.
“Order Date” means the effective date of the applicable Order.
“Participant” means a TSP that has a commission processing contract in place with Onyx.
“Participant Commission Record” means a record provided to Onyx by a Participant setting forth the amount of commissions due to Customer.
Payment Period” means the scheduled cycle on which Onyx distributes to Customer commission amounts received from TSPs (less any applicable Fees). The Payment Period is monthly, unless otherwise set forth in the applicable Order.
“Payment Report” means a record issued as part of the RecoverPro™ Services that includes all Customer Reservations confirmed by TSPs, including details of any Commissions paid thereon.
“RecoverPro™ Services” means the recovery service for unpaid commissions offered by Onyx, as further described herein.
“Services” means, to the extent ordered in the relevant Order, the Sure Pay™ Services, RecoverPro™ Services, and GroupPay™ Services.
“Sure Pay™ Services” means the general commission payment consolidation services offered by Onyx, as further described herein.
“TSP” means a hotel or similar travel service provider that receives Customer Reservations.
2. SERVICES.
2.1. Appointment; Customer Duties. During the Term, Customer appoints Onyx as its exclusive, worldwide and independent contractor to collect Customer Reservations, provide records of booking activities and consumption, and process commission payments under the terms of this Agreement. Customer will refrain from acting in any way to circumvent or interfere with the processing of commissions pursuant to this Agreement. Customer is solely responsible for notifying Onyx of any changes in ownership or other information, including without limitation changes in mailing address and ARC, IATA, or TIDS information as well as any legal entity information. Customer acknowledges and agrees that Onyx may use its affiliates worldwide to perform some or all of the Services hereunder.
2.2. Sure Pay™ Services. If an Order includes Sure Pay™ Services, Onyx will provide the commission consolidation services described in this paragraph. Within 15 business days after the end of each Payment Period, Onyx will: (a) consolidate by Participant those Participant Commission Records and corresponding commissions received by Onyx with respect to such Payment Period; (b) transmit to Customer the Commission Statement for such Payment Period; and (c) distribute to Customer the commissions actually received from the applicable Participants for such Payment Period, less any Fees. For Customers who receive only the Sure Pay™ Services (not RecoverPro™ Services), if a Participant pays Onyx less than the full amount of all commissions (including those due to Onyx’s other agency customers) and fees owed by such Participant, Onyx will have no obligation to distribute any amount to Customer until such Participant has made full payment of all commissions and fees.
2.3. RecoverPro™ Services. If an Order includes RecoverPro™ Services, the parties will fulfill the following duties:
a. Customer Duties. Customer responsibilities. Customer will provide Onyx all information or data in a standard format as provided by Onyx with respect to all Customer Reservations (including no-shows, cancellations and non-commissionable transactions) made by it with TSPs. Customer acknowledges and agrees Onyx may also collect relevant information regarding Customer Reservations from TSPs and other third parties. Customer will forward to Onyx any confirmations of Customer Reservations provided by TSPs directly to Customer, within 14 days of receipt by Customer. Customer acknowledges and agrees that Onyx’s ability to provide the Services depends on the data provided by Customer, and Customer will be responsible for any inaccuracies in such data. Customer is solely responsible for notifying Onyx of any changes in ownership or other information, including without limitation changes in mailing address and ARC, IATA, or TIDS information as well as any legal entity information. Customer is responsible for communicating any separate invoicing agreement, hereunder also self-billing agreements with any TSPs. Customer shall refrain from issuing invoices for commissions already invoiced through Onyx to prevent double invoicing.
b. Onyx Duties. Onyx will provide Customer the recovery services for unpaid commissions described in this paragraph. Onyx will: (a) issue notices to TSPs through automated processes for up to 12 months after check out date, setting out details of applicable Customer Reservations; (b) in the event Onyx believes (in its sole discretion) that a TSP has failed to respond or has underpaid commissions owed to Customer, take further actions towards such TSP that Onyx deems reasonable; (c) record all confirmations and details provided by TSPs with regards to Customer Reservations and corresponding commissions; (d) transmit the Payment Report to Customer; and (e) receive from TSPs commissions owed to Customer, and distribute to Customer such commissions (less any Fees) after each Payment Period; (f) provide Customer access to a web portal including Onyx’s standard suite of reports. Onyx will issue commission invoices to TSPs in the name of Customer, in accordance with the invoicing principles set forth at https://invoice.onyxcentersource.com/#/principles with regards to the Covered Areas defined therein.
2.4. Commission Distributions. After each Payment Period, Onyx will distribute any commission payments payable hereunder by bank transfer in the currency designated by Customer in the Order, unless otherwise reasonably requested by Customer and agreed by Onyx. For avoidance of doubt, Onyx will have no obligation or responsibility to distribute any commissions to Customer beyond the amounts actually paid in advance to Onyx by the relevant TSPs, less any Fees. If Onyx pays any amount to Customer in error, Customer will promptly repay such amounts to Onyx. Onyx may return to TSPs any commission amounts that are cannot be delivered to, or remain unclaimed by, Customer.
2.5. Service Providers. Onyx may work with third-party service providers to facilitate the performance of the Services, provided that Onyx will remain liable for such parties’ performance hereunder. If Customer’s authorization or approval is required by any partners or sub-suppliers, Customer will not unreasonably withhold such approval. Onyx is entitled to charge Customer for its costs for retaining the services of partners and/or sub suppliers.
2.6. GroupPay™ Services. If an Order includes GroupPay™ Services, Onyx will provide Customer access to certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
2.7. Ownership. Onyx will retain all right, title, and interest in and to any information, software, or other materials provided or made available to Customer by Onyx in relation to the Services. Customer will retain all right, title, and interest in and to any information provided to Onyx by Customer in relation to the Services. Customer hereby grants Onyx a perpetual, irrevocable, fully paid and royalty free, worldwide license to use, copy, perform, modify and prepare derivative works based on any data, content or materials provided by Customer in connection with the Services. Onyx may aggregate or otherwise anonymize data such that it cannot be used to identify Customer or any individuals (“Aggregated Data”). Aggregated Data will not be deemed Confidential Information of Customer, and Onyx may retain, use, and disclose such Aggregated Data freely in its sole discretion.
2.8. Data Protection. Onyx’s Data Processing Addendum, available here, is incorporated into and made a binding part of these Terms.
2.9. Changes to Services. Onyx reserves the right to alter, change or improve any part of the Services as it deems necessary, including if required as a result of regulatory changes or other changes imposed by third parties beyond Onyx’s reasonable control. The Order is for Onyx to provide the standard Services it provides to its customers generally, and Onyx reserves the right to accept or reject any requested changes or modifications to such Services. Any such changes accepted by Onyx will be developed and implemented at Customer’s expense.
3. FEES AND PAYMENT.
3.1. Fees. Customer will pay Onyx the fees as set forth in the Order (together with any fees described in this Section 3, the “Fees”). All Fees are non-cancellable and non-refundable. Onyx may modify the Fees and pricing structure annually by providing Customer notice of the new fees and pricing structure at least 90 days before they take effect.
3.2. Professional Services Fees. Onyx has no obligation to perform any services beyond the scope of the Services set forth herein. Any out-of-scope Fees requested by Customer will be performed at Onyx’s discretion and subject to Onyx’s then-current professional services rates.
3.3. Currency Exchange and Banking Fees. Customer acknowledges that Onyx incurs costs and risks in converting currency for the benefit of Customer, and agrees that Onyx may include its standard margin or markup in the exchange rate to cover these items. To the extent Onyx carries out banking-related procedures or tasks (e.g., check cashing) in order to enhance the Services and/or reduce the overall costs, Onyx shall be entitled to charge the Customer for this work. Such currency exchange margins and markups, and banking-related fees, will be deemed Fees hereunder.
3.4. Offset. Onyx will have the right to offset any Fees and other amounts owed to it against any commissions to be distributed to Customer hereunder. In the event such offset results in Customer owing net amounts to Onyx, Onyx may invoice Customer for such amounts. Any such invoices will be paid by Customer within 14 days from the date of the invoice.
4. TERM AND TERMINATION.
4.1. Term. Unless otherwise set forth in the Order, the Agreement is effective as of the Order Date and will continue for a period of three years (the “Initial Term”), at which point it will automatically renew for additional one year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party provides notice of non-renewal at least 90 days prior to the end of the then-current term.
4.2. Termination. Either party may terminate the Agreement if the other party materially breaches any of its obligations hereunder and does not cure such breach within 30 days of written notice by the non-breaching party. If Customer materially breaches the Agreement and does not cure such breach within 2 business days of notice, Onyx may suspend performance under the Agreement until such time as the breach is cured. Onyx is entitled to notify relevant TSPs of any such suspension, and the rest of the Agreement will remain in effect during the duration of any such suspension.
4.3. Effect of Termination. Upon any termination or expiration of the Agreement, Customer will promptly pay to Onyx any outstanding amounts owed to Onyx. In addition, if the Agreement is terminated due to Customer’s breach, Customer will pay Onyx an early termination fee of 50% of the Fees prorated to a monthly amount, multiplied by the number of months remaining in the then-current Initial or Renewal Term. The parties agree that this early termination fee is not a penalty but a reasonable estimate of Onyx’s damages in the event of termination for Customer’s breach, as Onyx’s actual damages may be difficult to readily ascertain. Sections 1, 2.5, 2.8, 3, 4.3, 5, 7, 8, 9, and 10 will survive any termination or expiration of the Agreement.
5. CONFIDENTIALITY.
5.1. Definition. “Confidential Information” is any nonpublic information that one party discloses to the other in any form whatsoever which should, due to the nature of the information or the circumstances surrounding the disclosure, be reasonably understood to be confidential. Confidential Information includes without limitation software, processes, and other technical, financial, or other business information, and any pricing and other terms set out in the applicable Order. Confidential Information does not include any information that: (a) was in or enters the public domain through no act or omission of the recipient; (b) the recipient can show was in its possession or known to it prior to the disclosure hereunder; (c) was independently developed by the recipient without use of or reference to any Confidential Information; or (d) is received by the recipient from a third party without breach of any confidentiality obligations.
5.2. Protection. The disclosing party at all times retains all right, title and interest in and to its Confidential Information. The recipient will maintain any Confidential Information in confidence using at least the same degree of care as it uses to protect its own confidential information, but no less than reasonable care. The recipient will not disclose any Confidential Information to any third party other than to its employees, subsidiaries and contractors who have a need to know and who are bound by obligations of confidentiality at least as restrictive as those set forth herein. The recipient will be responsible for any wrongful disclosure or use by any of its employees or contractors. In the event any court or other authority orders the recipient to disclose any Confidential Information, the recipient will promptly notify the disclosing party of such order and reasonably cooperate with the disclosing party to contest such disclosure, at the disclosing party’s expense. Upon any termination or expiration of the Agreement, or at any time upon the disclosing party’s reasonable request, the recipient will return or destroy any Confidential Information in its possession or control.
5.3. Network Security. Upon Onyx’s reasonable request, Customer will: (i) identify the employees or contractors it allows to access Onyx’s systems or platforms and promptly notify Onyx of any changes to this list; and (ii) complete a network security survey in a form provided by Onyx. Upon written notice to Customer, Onyx may suspend the Services and Customer’s access to its system in response to what Onyx deems a reasonable network security threat, provided that the parties will then cooperate in good faith to resolve the problem and restore access.
5.4. Remedies. The parties acknowledge and agree that breach of this Section 5 may lead to irreparable harm for which monetary damages would be inadequate remedy, and that the non-breaching party will thus be entitled to seek equitable relief, including injunctive relief, in addition to any other rights and remedies at law or under the Agreement.
6. REPRESENTATIONS. Each party represents and warrants that: (i) it has the right, power and authority to enter into the Agreement and to fully perform all of its obligations thereunder; (ii) entering into the Agreement does not violate any agreement or obligation existing between it and any third party; and (iii) it has, and will at all times maintain, commercially reasonable network security policies and procedures. Customer represents and warrants that any information it provides to Onyx under the Agreement will be complete and accurate.
7. INDEMNITY. Customer will defend, indemnify and hold harmless Onyx, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by them in connection with a third party claim arising out of: (i) Customer’s use of the Services; (ii) Onyx’s use of information provided by Customer; or (iii) Customer’s breach of the Agreement.
8. DISCLAIMER. Onyx’s role as a commission processor hereunder is that of a clearinghouse only, and Onyx has no responsibility or obligation to: (i) distribute any commissions allegedly owed to Customer beyond any commission payments Onyx has actually received from TSPs; or (ii) resolve or be involved in any dispute between Customer and any TSP. Onyx has no responsibility, and Customer hereby releases Onyx, for the acts or omissions of third parties including those related to wire transfer, direct deposit, or other services related to the Agreement, or for a TSPs failure to pay commissions. Onyx is not responsible for any inaccuracies in any information provided by Customer or any TSPs or other third parties. Onyx is not responsible for the availability or functionality of Customer’s and third parties’ hardware, software, and networks which may be required for the Services to be effective. Customer’s sole and exclusive remedy for any error in any invoice or report will be for Onyx to reissue the affected invoice or report. THE SERVICES AND ANY INFORMATION OR OTHER MATERIALS PROVIDED BY ONYX TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ONYX HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PERFORMANCE, NON-INFRINGEMENT, OR TITLE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE AGREEMENT BY ONYX IS TERMINATION OF THE AGREEMENT.
9. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTION 5 AND THE INDEMNIFICATION OBLIGATIONS IN SECTION 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR UNPAID COMMISSIONS) OF THE OTHER PARTY THAT RESULT FROM OR ARE RELATED TO THE AGREEMENT, EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ONYX’S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS UNDER THE AGREEMENT EXCEED THE FEES ACTUALLY RECEIVED BY ONYX FROM CUSTOMER IN THE 12 MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO A CLAIM FOR SUCH DAMAGES.
10. MISCELLANEOUS.
10.1. Notice. Any notice of non-renewal, breach, or termination given by Customer hereunder must be sent in writing to Onyx at either Two Lincoln Centre, 5420 LBJ Freeway, Suite 900, Dallas, TX 75240 (if the applicable Order was signed by Pegasus Business Intelligence, LP d/b/a Onyx CenterSource) or P.O. Box 529, Rambergveien 1, Tonsberg, N-3101, Norway (if the applicable Order was signed by Onyx CenterSource AS). Any other communications from Customer may be sent via email at tasupport@onyxcentersource.com. Onyx may provide notice to Customer hereunder in writing or by email using the contact information set forth in the applicable Order. Customer is responsible for ensuring such contact information stays current, and may update its contact information by providing Onyx written notice of any such updates.
10.2. Modifications. Onyx may update or revise these Terms from time to time. Onyx will make the then-current version of these Terms available on its website. By continuing to use the Services after these Terms have been updated, Customer agrees to be bound by then then-currently posted version of these Terms.
10.3. Governing Law. Based on which Onyx entity that signs the applicable Order, (a) the Agreement will be governed by the laws of the jurisdiction stated below, without regard to its conflict of law principles, and (b) all disputes hereunder will be resolved in the applicable courts located in the jurisdiction stated below. The parties consent to the exclusive jurisdiction of such courts and waive any jurisdictional or venue defenses otherwise available.
| Onyx Entity | Governing Law | Venue |
| Pegasus Business Intelligence, LP d/b/a Onyx CenterSource | Texas law (USA) | Dallas County, Texas |
| Onyx CenterSource AS | Norwegian law | Oslo, Norway |
10.4. Publicity. Onyx may use Customer’s name and address in any listing, advertisement or promotional material to indicate that Customer is receives the Services from Onyx and endorses the Services.
10.5. Force Majeure. Other than Customer’s obligation to pay Fees, neither party shall be liable to the other for any failure to meet its obligations if such failure is due to any cause beyond the non-performing party's reasonable control.
10.6. No Waiver. Non-enforcement by either party of any term or condition of the Agreement will not constitute a waiver. Subject to Section 10.2 of these Terms, no waiver, amendment, alteration, or modification of the Agreement will be effective or binding unless it is set forth in a writing signed by duly authorized representatives of both parties.
10.7. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity will not affect the validity or operation of any other provision and such invalid provision will be deemed severed from the Agreement.
10.8. Successors; Assignment. The Agreement will be binding on and will inure to the benefit of the parties hereto and their permitted heirs, administrators, successors, and assigns. The Agreement may not be assigned, conveyed, or otherwise transferred by Customer except with prior written consent of Onyx. Any attempted assignment in violation of this section will be null and void.
10.9. Independent Contractors. The parties are independent contractors. Nothing herein will be construed to create a partnership, joint venture, or similar arrangement between Onyx and Customer. Neither party shall be deemed to be an agent, employee, or representative of the other.
10.10. Taxes. “Taxes” means all sales, use, VAT, GST, MVA, HST, and other revenue, direct, and indirect taxes that may be levied on either party arising out of this Agreement, the fees, or any commissions processed hereunder. All fees payable hereunder are exclusive of Taxes, except for those based on Onyx’s net income or payroll. Additionally, Customer will be solely responsible for calculating, reporting, and paying to the relevant tax authority any Taxes levied on the Services or the commissions distributed to Customer hereunder.
10.11. Entire Agreement. The Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, with regard to the subject matter hereof.
10.12. Language. This Agreement is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of these Terms or this Agreement into another language is for convenience only, and no such translation will be binding against the parties hereto.
Effective January 22, 2019 to January 28, 2019
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TERMS AND CONDITIONS FOR AGENCY CUSTOMERS
These Terms and Conditions for Agency Customers (these “Terms”) are a binding legal agreement between the customer (“Customer”) executing an order form, purchase order, subscription agreement, enrollment form, or other transaction document that references these Terms (an “Order”), and Pegasus Business Intelligence, LP d/b/a Onyx CenterSource or the Onyx affiliate executing the Order (in either case, “Onyx”). By executing an Order, Customer agrees to be legally bound by the then-current version of these Terms.
1. DEFINITIONS.
“Agreement” means the Order, these Terms, and any exhibits, policies, or documents referenced in any of the foregoing.
“Commission Statement” means a statement issued as part of the Sure Pay™ Services that includes all Participant Commission Records with respect to the applicable Payment Period.
“Commissionable Reservation” means a Customer Reservation for which a commission is due from the relevant TSP to Customer.
“Customer Reservation” means a reservation made by Customer (by telephone or electronically) with a TSP.
“Order Date” means the effective date of the applicable Order.
“Participant” means a TSP that has a commission processing contract in place with Onyx.
“Participant Commission Record” means a record provided to Onyx by a Participant setting forth the amount of commissions due to Customer.
“Payment Period” means the scheduled cycle on which Onyx distributes to Customer commission amounts received from TSPs (less any applicable Fees). The Payment Period is monthly, unless otherwise set forth in the applicable Order.
“Payment Report” means a record issued as part of the RecoverPro™ Services that includes all Customer Reservations confirmed by TSPs, including details of any Commissions paid thereon.
“RecoverPro™ Services” means the recovery service for unpaid commissions offered by Onyx, as further described herein.
“Services” means the Sure Pay™ Services and, if ordered in the relevant Order, the RecoverPro™ Services.
“Sure Pay™ Services” means the general commission payment consolidation services offered by Onyx, as further described herein.
“TSP” means a hotel or similar travel service provider that receives Customer Reservations.
2. SERVICES.
2.1. Appointment; Customer Duties. During the Term, Customer appoints Onyx as its exclusive, worldwide and independent contractor to collect Customer Reservations, provide records of booking activities and consumption, and process commission payments under the terms of this Agreement. Customer will refrain from acting in any way to circumvent or interfere with the processing of commissions pursuant to this Agreement. Customer is solely responsible for notifying Onyx of any changes in ownership or other information, including without limitation changes in mailing address and ARC, IATA, or TIDS information as well as any legal entity information. Customer acknowledges and agrees that Onyx may use its affiliates worldwide to perform some or all of the Services hereunder.
2.2. Sure Pay™ Services. If an Order includes Sure Pay™ Services, Onyx will provide the commission consolidation services described in this paragraph. Within 15 business days after the end of each Payment Period, Onyx will: (a) consolidate by Participant those Participant Commission Records and corresponding commissions received by Onyx with respect to such Payment Period; (b) transmit to Customer the Commission Statement for such Payment Period; and (c) distribute to Customer the commissions actually received from the applicable Participants for such Payment Period, less any Fees. For Customers who receive only the Sure Pay™ Services (not RecoverPro™ Services), if a Participant pays Onyx less than the full amount of all commissions (including those due to Onyx’s other agency customers) and fees owed by such Participant, Onyx will have no obligation to distribute any amount to Customer until such Participant has made full payment of all commissions and fees.
2.3. RecoverPro™ Services. If an Order includes RecoverPro™ Services, the parties will fulfill the following duties:
a. Customer Duties. Customer responsibilities. Customer will provide Onyx all information or data in a standard format as provided by Onyx with respect to all Customer Reservations (including no-shows, cancellations and non-commissionable transactions) made by it with TSPs. Customer acknowledges and agrees Onyx may also collect relevant information regarding Customer Reservations from TSPs and other third parties. Customer will forward to Onyx any confirmations of Customer Reservations provided by TSPs directly to Customer, within 14 days of receipt by Customer. Customer acknowledges and agrees that Onyx’s ability to provide the Services depends on the data provided by Customer, and Customer will be responsible for any inaccuracies in such data. Customer is solely responsible for notifying Onyx of any changes in ownership or other information, including without limitation changes in mailing address and ARC, IATA, or TIDS information as well as any legal entity information. Customer is responsible for communicating any separate invoicing agreement, hereunder also self-billing agreements with any TSPs. Customer shall refrain from issuing invoices for commissions already invoiced through Onyx to prevent double invoicing.
b. Onyx Duties. Onyx will provide Customer the recovery services for unpaid commissions described in this paragraph. Onyx will: (a) issue notices to TSPs through automated processes for up to 12 months after check out date, setting out details of applicable Customer Reservations; (b) in the event Onyx believes (in its sole discretion) that a TSP has failed to respond or has underpaid commissions owed to Customer, take further actions towards such TSP that Onyx deems reasonable; (c) record all confirmations and details provided by TSPs with regards to Customer Reservations and corresponding commissions; (d) transmit the Payment Report to Customer; and (e) receive from TSPs commissions owed to Customer, and distribute to Customer such commissions (less any Fees) after each Payment Period; (f) provide Customer access to a web portal including Onyx’s standard suite of reports. Onyx will issue commission invoices to TSPs in the name of Customer, in accordance with the invoicing principles set forth at https://invoice.onyxcentersource.com/#/principles with regards to the Covered Areas defined therein.
2.4. Commission Distributions. After each Payment Period, Onyx will distribute any commission payments payable hereunder by bank transfer in the currency designated by Customer in the Order, unless otherwise reasonably requested by Customer and agreed by Onyx. For avoidance of doubt, Onyx will have no obligation or responsibility to distribute any commissions to Customer beyond the amounts actually paid in advance to Onyx by the relevant TSPs, less any Fees. If Onyx pays any amount to Customer in error, Customer will promptly repay such amounts to Onyx. Onyx may return to TSPs any commission amounts that are cannot be delivered to, or remain unclaimed by, Customer.
2.5. Service Providers. Onyx may work with third-party service providers to facilitate the performance of the Services, provided that Onyx will remain liable for such parties’ performance hereunder. If Customer’s authorization or approval is required by any partners or sub-suppliers, Customer will not unreasonably withhold such approval. Onyx is entitled to charge Customer for its costs for retaining the services of partners and/or sub suppliers.
2.6. Ownership. Onyx will retain all right, title, and interest in and to any information, software, or other materials provided or made available to Customer by Onyx in relation to the Services. Customer will retain all right, title, and interest in and to any information provided to Onyx by Customer in relation to the Services. Customer hereby grants Onyx a perpetual, irrevocable, fully paid and royalty free, worldwide license to use, copy, perform, modify and prepare derivative works based on any data, content or materials provided by Customer in connection with the Services. Onyx may aggregate or otherwise anonymize data such that it cannot be used to identify Customer or any individuals (“Aggregated Data”). Aggregated Data will not be deemed Confidential Information of Customer, and Onyx may retain, use, and disclose such Aggregated Data freely in its sole discretion.
2.7. Data Protection. Onyx’s Data Processing Addendum, available here, is incorporated into and made a binding part of these Terms.
2.8. Changes to Services. Onyx reserves the right to alter, change or improve any part of the Services as it deems necessary, including if required as a result of regulatory changes or other changes imposed by third parties beyond Onyx’s reasonable control. The Order is for Onyx to provide the standard Services it provides to its customers generally, and Onyx reserves the right to accept or reject any requested changes or modifications to such Services. Any such changes accepted by Onyx will be developed and implemented at Customer’s expense.
3. FEES AND PAYMENT.
3.1. Fees. Customer will pay Onyx the fees as set forth in the Order (together with any fees described in this Section 3, the “Fees”). All Fees are non-cancellable and non-refundable. Onyx may modify the Fees and pricing structure annually by providing Customer notice of the new fees and pricing structure at least 90 days before they take effect.
3.2. Professional Services Fees. Onyx has no obligation to perform any services beyond the scope of the Services set forth herein. Any out-of-scope Fees requested by Customer will be performed at Onyx’s discretion and subject to Onyx’s then-current professional services rates.
3.3. Currency Exchange and Banking Fees. Customer acknowledges that Onyx incurs costs and risks in converting currency for the benefit of Customer, and agrees that Onyx may include its standard margin or markup in the exchange rate to cover these items. To the extent Onyx carries out banking-related procedures or tasks (e.g., check cashing) in order to enhance the Services and/or reduce the overall costs, Onyx shall be entitled to charge the Customer for this work. Such currency exchange margins and markups, and banking-related fees, will be deemed Fees hereunder.
3.4. Offset. Onyx will have the right to offset any Fees and other amounts owed to it against any commissions to be distributed to Customer hereunder. In the event such offset results in Customer owing net amounts to Onyx, Onyx may invoice Customer for such amounts. Any such invoices will be paid by Customer within 14 days from the date of the invoice.
4. TERM AND TERMINATION.
4.1. Term. Unless otherwise set forth in the Order, the Agreement is effective as of the Order Date and will continue for a period of three years (the “Initial Term”), at which point it will automatically renew for additional one year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party provides notice of non-renewal at least 90 days prior to the end of the then-current term.
4.2. Termination. Either party may terminate the Agreement if the other party materially breaches any of its obligations hereunder and does not cure such breach within 30 days of written notice by the non-breaching party. If Customer materially breaches the Agreement and does not cure such breach within 2 business days of notice, Onyx may suspend performance under the Agreement until such time as the breach is cured. Onyx is entitled to notify relevant TSPs of any such suspension, and the rest of the Agreement will remain in effect during the duration of any such suspension.
4.3. Effect of Termination. Upon any termination or expiration of the Agreement, Customer will promptly pay to Onyx any outstanding amounts owed to Onyx. In addition, if the Agreement is terminated due to Customer’s breach, Customer will pay Onyx an early termination fee of 50% of the Fees prorated to a monthly amount, multiplied by the number of months remaining in the then-current Initial or Renewal Term. The parties agree that this early termination fee is not a penalty but a reasonable estimate of Onyx’s damages in the event of termination for Customer’s breach, as Onyx’s actual damages may be difficult to readily ascertain. Sections 1, 2.5, 2.8, 3, 4.3, 5, 7, 8, 9, and 10 will survive any termination or expiration of the Agreement.
5. CONFIDENTIALITY.
5.1. Definition. “Confidential Information” is any nonpublic information that one party discloses to the other in any form whatsoever which should, due to the nature of the information or the circumstances surrounding the disclosure, be reasonably understood to be confidential. Confidential Information includes without limitation software, processes, and other technical, financial, or other business information, and any pricing and other terms set out in the applicable Order. Confidential Information does not include any information that: (a) was in or enters the public domain through no act or omission of the recipient; (b) the recipient can show was in its possession or known to it prior to the disclosure hereunder; (c) was independently developed by the recipient without use of or reference to any Confidential Information; or (d) is received by the recipient from a third party without breach of any confidentiality obligations.
5.2. Protection. The disclosing party at all times retains all right, title and interest in and to its Confidential Information. The recipient will maintain any Confidential Information in confidence using at least the same degree of care as it uses to protect its own confidential information, but no less than reasonable care. The recipient will not disclose any Confidential Information to any third party other than to its employees, subsidiaries and contractors who have a need to know and who are bound by obligations of confidentiality at least as restrictive as those set forth herein. The recipient will be responsible for any wrongful disclosure or use by any of its employees or contractors. In the event any court or other authority orders the recipient to disclose any Confidential Information, the recipient will promptly notify the disclosing party of such order and reasonably cooperate with the disclosing party to contest such disclosure, at the disclosing party’s expense. Upon any termination or expiration of the Agreement, or at any time upon the disclosing party’s reasonable request, the recipient will return or destroy any Confidential Information in its possession or control.
5.3. Network Security. Upon Onyx’s reasonable request, Customer will: (i) identify the employees or contractors it allows to access Onyx’s systems or platforms and promptly notify Onyx of any changes to this list; and (ii) complete a network security survey in a form provided by Onyx. Upon written notice to Customer, Onyx may suspend the Services and Customer’s access to its system in response to what Onyx deems a reasonable network security threat, provided that the parties will then cooperate in good faith to resolve the problem and restore access.
5.4. Remedies. The parties acknowledge and agree that breach of this Section 5 may lead to irreparable harm for which monetary damages would be inadequate remedy, and that the non-breaching party will thus be entitled to seek equitable relief, including injunctive relief, in addition to any other rights and remedies at law or under the Agreement.
6. REPRESENTATIONS. Each party represents and warrants that: (i) it has the right, power and authority to enter into the Agreement and to fully perform all of its obligations thereunder; (ii) entering into the Agreement does not violate any agreement or obligation existing between it and any third party; and (iii) it has, and will at all times maintain, commercially reasonable network security policies and procedures. Customer represents and warrants that any information it provides to Onyx under the Agreement will be complete and accurate.
7. INDEMNITY. Customer will defend, indemnify and hold harmless Onyx, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by them in connection with a third party claim arising out of: (i) Customer’s use of the Services; (ii) Onyx’s use of information provided by Customer; or (iii) Customer’s breach of the Agreement.
8. DISCLAIMER. Onyx’s role as a commission processor hereunder is that of a clearinghouse only, and Onyx has no responsibility or obligation to: (i) distribute any commissions allegedly owed to Customer beyond any commission payments Onyx has actually received from TSPs; or (ii) resolve or be involved in any dispute between Customer and any TSP. Onyx has no responsibility, and Customer hereby releases Onyx, for the acts or omissions of third parties including those related to wire transfer, direct deposit, or other services related to the Agreement, or for a TSPs failure to pay commissions. Onyx is not responsible for any inaccuracies in any information provided by Customer or any TSPs or other third parties. Onyx is not responsible for the availability or functionality of Customer’s and third parties’ hardware, software, and networks which may be required for the Services to be effective. Customer’s sole and exclusive remedy for any error in any invoice or report will be for Onyx to reissue the affected invoice or report. THE SERVICES AND ANY INFORMATION OR OTHER MATERIALS PROVIDED BY ONYX TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ONYX HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PERFORMANCE, NON-INFRINGEMENT, OR TITLE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE AGREEMENT BY ONYX IS TERMINATION OF THE AGREEMENT.
9. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTION 5 AND THE INDEMNIFICATION OBLIGATIONS IN SECTION 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR UNPAID COMMISSIONS) OF THE OTHER PARTY THAT RESULT FROM OR ARE RELATED TO THE AGREEMENT, EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ONYX’S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS UNDER THE AGREEMENT EXCEED THE FEES ACTUALLY RECEIVED BY ONYX FROM CUSTOMER IN THE 12 MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO A CLAIM FOR SUCH DAMAGES.
10. MISCELLANEOUS.
10.1. Notice. Any notice of non-renewal, breach, or termination given by Customer hereunder must be sent in writing to Onyx at either Two Lincoln Centre, 5420 LBJ Freeway, Suite 900, Dallas, TX 75240 (if the applicable Order was signed by Pegasus Business Intelligence, LP d/b/a Onyx CenterSource) or P.O. Box 529, Rambergveien 1, Tonsberg, N-3101, Norway (if the applicable Order was signed by Onyx CenterSource AS). Any other communications from Customer may be sent via email at tasupport@onyxcentersource.com. Onyx may provide notice to Customer hereunder in writing or by email using the contact information set forth in the applicable Order. Customer is responsible for ensuring such contact information stays current, and may update its contact information by providing Onyx written notice of any such updates.
10.2. Modifications. Onyx may update or revise these Terms from time to time. Onyx will make the then-current version of these Terms available on its website. By continuing to use the Services after these Terms have been updated, Customer agrees to be bound by then then-currently posted version of these Terms.
10.3. Governing Law. Based on which Onyx entity that signs the applicable Order, (a) the Agreement will be governed by the laws of the jurisdiction stated below, without regard to its conflict of law principles, and (b) all disputes hereunder will be resolved in the applicable courts located in the jurisdiction stated below. The parties consent to the exclusive jurisdiction of such courts and waive any jurisdictional or venue defenses otherwise available.
Onyx Entity | Governing Law | Venue |
Pegasus Business Intelligence, LP d/b/a Onyx CenterSource | Texas law (USA) | Dallas County, Texas |
Onyx CenterSource AS | Norwegian law | Oslo, Norway |
10.4. Publicity. Onyx may use Customer’s name and address in any listing, advertisement or promotional material to indicate that Customer is receives the Services from Onyx and endorses the Services.
10.5. Force Majeure. Other than Customer’s obligation to pay Fees, neither party shall be liable to the other for any failure to meet its obligations if such failure is due to any cause beyond the non-performing party's reasonable control.
10.6. No Waiver. Non-enforcement by either party of any term or condition of the Agreement will not constitute a waiver. Subject to Section 10.2 of these Terms, no waiver, amendment, alteration, or modification of the Agreement will be effective or binding unless it is set forth in a writing signed by duly authorized representatives of both parties.
10.7. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity will not affect the validity or operation of any other provision and such invalid provision will be deemed severed from the Agreement.
10.8. Successors; Assignment. The Agreement will be binding on and will inure to the benefit of the parties hereto and their permitted heirs, administrators, successors, and assigns. The Agreement may not be assigned, conveyed, or otherwise transferred by Customer except with prior written consent of Onyx. Any attempted assignment in violation of this section will be null and void.
10.9. Independent Contractors. The parties are independent contractors. Nothing herein will be construed to create a partnership, joint venture, or similar arrangement between Onyx and Customer. Neither party shall be deemed to be an agent, employee, or representative of the other.
10.10. Taxes. “Taxes” means all sales, use, VAT, GST, MVA, HST, and other revenue, direct, and indirect taxes that may be levied on either party arising out of this Agreement, the fees, or any commissions processed hereunder. All fees payable hereunder are exclusive of Taxes, except for those based on Onyx’s net income or payroll. Additionally, Customer will be solely responsible for calculating, reporting, and paying to the relevant tax authority any Taxes levied on the Services or the commissions distributed to Customer hereunder.
10.11. Entire Agreement. The Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, with regard to the subject matter hereof.
Commission Consolidation Authorization
Effective April 17, 2019
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COMMISSION CONSOLIDATION AUTHORIZATION
By this document, the undersigned {{{company_name}}} (“ Travel Agent”), hereby appoints Onyx CenterSource AS, of P.O. Box 529, Rambergveien 1, Tonsberg, N-3101, Norway, and its affiliates (collectively, “Onyx”) as Travel Agent’s exclusive worldwide agent to:
(i) Demand, receive, hold, and distribute from any relevant payment processing or service providers (collectively, “Service Providers ”) all commissions that may be due or owing to Travel Agent from any hotels and other providers of travel accommodations (and, upon agreement of the parties, providers of transportation or other travel services), and to accept cheques, money orders, electronic payments, wire transfers or other form of payment acceptable to Onyx in its sole discretion;
(ii) Endorse in Onyx' name any cheque, money order, or other instrument payable to Travel Agent for commissions owing from Service Provider;
(iii) Collect information and data from Service Providers relating to reservations, commissions, and any other data applicable to the determination of commissions due and owing from Service Providers to Travel Agent;
(iv) Issue notices, but not legal action, to Service Providers requesting information from Service Providers with respect to commission Onyx, in its sole discretion, believes were underpaid.
(v) Take such other steps in connection with (i)-(iv) that Onyx may deem necessary and proper and in the name of Travel Agent with the same effect as if such receipts, release or discharges were executed by Travel Agent directly
Onyx’ authority under this Letter of Authorization may be exercised by any officer of Onyx that is properly authorized to take such action on behalf of Onyx. Onyx shall at any time and for any reason have the power to appoint, either as a substitute for it or to perform some or all of the powers conferred upon it, a successor or affiliated entity or a substitute attorney who shall have such powers herein granted, and the powers delegated and referenced herein shall be conferred upon such substitute by Onyx.
Effective April 16, 2019 to April 17, 2019
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COMMISSION CONSOLIDATION AUTHORIZATION
By this document, the undersigned {{{Salesforce.account.Name}}} (“ Travel Agent”), hereby appoints Onyx CenterSource AS, of P.O. Box 529, Rambergveien 1, Tonsberg, N-3101, Norway, and its affiliates (collectively, “Onyx”) as Travel Agent’s exclusive worldwide agent to:
(i) Demand, receive, hold, and distribute from any relevant payment processing or service providers (collectively, “Service Providers ”) all commissions that may be due or owing to Travel Agent from any hotels and other providers of travel accommodations (and, upon agreement of the parties, providers of transportation or other travel services), and to accept cheques, money orders, electronic payments, wire transfers or other form of payment acceptable to Onyx in its sole discretion;
(ii) Endorse in Onyx' name any cheque, money order, or other instrument payable to Travel Agent for commissions owing from Service Provider;
(iii) Collect information and data from Service Providers relating to reservations, commissions, and any other data applicable to the determination of commissions due and owing from Service Providers to Travel Agent;
(iv) Issue notices, but not legal action, to Service Providers requesting information from Service Providers with respect to commission Onyx, in its sole discretion, believes were underpaid.
(v) Take such other steps in connection with (i)-(iv) that Onyx may deem necessary and proper and in the name of Travel Agent with the same effect as if such receipts, release or discharges were executed by Travel Agent directly
Onyx’ authority under this Letter of Authorization may be exercised by any officer of Onyx that is properly authorized to take such action on behalf of Onyx. Onyx shall at any time and for any reason have the power to appoint, either as a substitute for it or to perform some or all of the powers conferred upon it, a successor or affiliated entity or a substitute attorney who shall have such powers herein granted, and the powers delegated and referenced herein shall be conferred upon such substitute by Onyx.
Effective February 4, 2019 to April 16, 2019
DownloadTable of Contents
COMMISSION CONSOLIDATION AUTHORIZATION
By this document, the undersigned {{company_name}} (“ Travel Agent”), hereby appoints Onyx CenterSource AS, of P.O. Box 529, Rambergveien 1, Tonsberg, N-3101, Norway, and its affiliates (collectively, “Onyx”) as Travel Agent’s exclusive worldwide agent to:
(i) Demand, receive, hold, and distribute from any relevant payment processing or service providers (collectively, “Service Providers ”) all commissions that may be due or owing to Travel Agent from any hotels and other providers of travel accommodations (and, upon agreement of the parties, providers of transportation or other travel services), and to accept cheques, money orders, electronic payments, wire transfers or other form of payment acceptable to Onyx in its sole discretion;
(ii) Endorse in Onyx' name any cheque, money order, or other instrument payable to Travel Agent for commissions owing from Service Provider;
(iii) Collect information and data from Service Providers relating to reservations, commissions, and any other data applicable to the determination of commissions due and owing from Service Providers to Travel Agent;
(iv) Issue notices, but not legal action, to Service Providers requesting information from Service Providers with respect to commission Onyx, in its sole discretion, believes were underpaid.
(v) Take such other steps in connection with (i)-(iv) that Onyx may deem necessary and proper and in the name of Travel Agent with the same effect as if such receipts, release or discharges were executed by Travel Agent directly
Onyx’ authority under this Letter of Authorization may be exercised by any officer of Onyx that is properly authorized to take such action on behalf of Onyx. Onyx shall at any time and for any reason have the power to appoint, either as a substitute for it or to perform some or all of the powers conferred upon it, a successor or affiliated entity or a substitute attorney who shall have such powers herein granted, and the powers delegated and referenced herein shall be conferred upon such substitute by Onyx.
Effective February 4, 2019 to February 4, 2019
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COMMISSION CONSOLIDATION AUTHORIZATION
By this document, the undersigned {{company_name}} (“ Travel Agent”), hereby appoints Onyx CenterSource AS, of P.O. Box 529, Rambergveien 1, Tonsberg, N-3101, Norway, and its affiliates (collectively, “Onyx”) as Travel Agent’s exclusive worldwide agent to:
(i) Demand, receive, hold, and distribute from any relevant payment processing or service providers (collectively, “Service Providers ”) all commissions that may be due or owing to Travel Agent from any hotels and other providers of travel accommodations (and, upon agreement of the parties, providers of transportation or other travel services), and to accept cheques, money orders, electronic payments, wire transfers or other form of payment acceptable to Onyx in its sole discretion;
(ii) Endorse in Onyx' name any cheque, money order, or other instrument payable to Travel Agent for commissions owing from Service Provider;
(iii) Collect information and data from Service Providers relating to reservations, commissions, and any other data applicable to the determination of commissions due and owing from Service Providers to Travel Agent;
(iv) Issue notices, but not legal action, to Service Providers requesting information from Service Providers with respect to commission Onyx, in its sole discretion, believes were underpaid.
(v) Take such other steps in connection with (i)-(iv) that Onyx may deem necessary and proper and in the name of Travel Agent with the same effect as if such receipts, release or discharges were executed by Travel Agent directly
Onyx’ authority under this Letter of Authorization may be exercised by any officer of Onyx that is properly authorized to take such action on behalf of Onyx. Onyx shall at any time and for any reason have the power to appoint, either as a substitute for it or to perform some or all of the powers conferred upon it, a successor or affiliated entity or a substitute attorney who shall have such powers herein granted, and the powers delegated and referenced herein shall be conferred upon such substitute by Onyx.
GroupPay - Amendment to CommPay Agreement [SP]
Effective April 17, 2019
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This Amendment to the CommPay Agreement (this “Amendment”) is made as of {{{current_date}}}(the “Amendment Effective Date”), by and between Worldwide Payment Systems S.A.U. d/b/a Onyx CenterSource (“Onyx”) and {{{company_name}}} (“Customer”). This Amendment amends that certain CommPay Agreement executed by the Customer and Onyx (together with any exhibits and amendments thereto, the “Agreement”), pursuant to which Onyx and its affiliates provide Customer certain commission tracking and processing services as further described therein (the “CommPay™ Services”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
- GroupPay™ Services. In addition to the CommPay™ Services, Onyx will provide Customer the group, meeting, and event commission processing services described herein (the “GroupPay™ Services”).
- Customer Duties. In addition to the basic booking data provided by Customer in connection with the CommPay™ Services, Customer will also provide Onyx event name and other information reasonably requested by Onyx related to any group, event, or meeting bookings.
- Onyx Duties. In addition to processing group, event, and meeting commission payments in accordance with the CommPay™ Service standards, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
- Fees. For each transaction processed via the GroupPay™ Services, Customer will pay Onyx the same per-transaction fees and charges as it would have paid if such transaction was processed via the existing CommPay™ Services. A GroupPay™ transaction is defined as an individual guest booking for a meeting, group or event.
In addition, Customer authorizes Onyx to withhold and retain 4% from payments processed as part of the GroupPay Services (as Onyx’s compensation from the Agency), unless a different amount is set forth in Onyx’s contract with the applicable Agency. - Interpretation. For avoidance of doubt, the term “ONYX Services”, as used in the Agreement, is amended to additionally include the GroupPay™ Services.
- General. The parties hereby expressly agree that this Amendment supplements, amends and modifies the Agreement. Except as specifically modified pursuant to this Amendment, all of the provisions of the Agreement remain unchanged and continue in full force and effect. This Amendment may be executed in any number of counterparts, each of which are deemed to be an original, and all of which constitute one and the same instrument. The terms, covenants, conditions and obligations imposed upon each party herein shall be binding upon the successors and assigns of such party.
Effective April 16, 2019 to April 17, 2019
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This Amendment to the CommPay Agreement (this “Amendment”) is made as of {{{@date.current_day}}} (the “Amendment Effective Date”), by and between Worldwide Payment Systems S.A.U. d/b/a Onyx CenterSource (“Onyx”) and {{{Salesforce.account.Name}}} (“Customer”). This Amendment amends that certain CommPay Agreement executed by the Customer and Onyx (together with any exhibits and amendments thereto, the “Agreement”), pursuant to which Onyx and its affiliates provide Customer certain commission tracking and processing services as further described therein (the “CommPay™ Services”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
- GroupPay™ Services. In addition to the CommPay™ Services, Onyx will provide Customer the group, meeting, and event commission processing services described herein (the “GroupPay™ Services”).
- Customer Duties. In addition to the basic booking data provided by Customer in connection with the CommPay™ Services, Customer will also provide Onyx event name and other information reasonably requested by Onyx related to any group, event, or meeting bookings.
- Onyx Duties. In addition to processing group, event, and meeting commission payments in accordance with the CommPay™ Service standards, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
- Fees. For each transaction processed via the GroupPay™ Services, Customer will pay Onyx the same per-transaction fees and charges as it would have paid if such transaction was processed via the existing CommPay™ Services. A GroupPay™ transaction is defined as an individual guest booking for a meeting, group or event.
In addition, Customer authorizes Onyx to withhold and retain 4% from payments processed as part of the GroupPay Services (as Onyx’s compensation from the Agency), unless a different amount is set forth in Onyx’s contract with the applicable Agency. - Interpretation. For avoidance of doubt, the term “ONYX Services”, as used in the Agreement, is amended to additionally include the GroupPay™ Services.
- General. The parties hereby expressly agree that this Amendment supplements, amends and modifies the Agreement. Except as specifically modified pursuant to this Amendment, all of the provisions of the Agreement remain unchanged and continue in full force and effect. This Amendment may be executed in any number of counterparts, each of which are deemed to be an original, and all of which constitute one and the same instrument. The terms, covenants, conditions and obligations imposed upon each party herein shall be binding upon the successors and assigns of such party.
Effective April 1, 2019 to April 16, 2019
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This Amendment to the CommPay Agreement (this “Amendment”) is made as of {{{current_date}}} (the “Amendment Effective Date”), by and between Worldwide Payment Systems S.A.U. d/b/a Onyx CenterSource (“Onyx”) and {{{company_name}}} (“Customer”). This Amendment amends that certain CommPay Agreement executed by the Customer and Onyx (together with any exhibits and amendments thereto, the “Agreement”), pursuant to which Onyx and its affiliates provide Customer certain commission tracking and processing services as further described therein (the “CommPay™ Services”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
- GroupPay™ Services. In addition to the CommPay™ Services, Onyx will provide Customer the group, meeting, and event commission processing services described herein (the “GroupPay™ Services”).
- Customer Duties. In addition to the basic booking data provided by Customer in connection with the CommPay™ Services, Customer will also provide Onyx event name and other information reasonably requested by Onyx related to any group, event, or meeting bookings.
- Onyx Duties. In addition to processing group, event, and meeting commission payments in accordance with the CommPay™ Service standards, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
- Fees. For each transaction processed via the GroupPay™ Services, Customer will pay Onyx the same per-transaction fees and charges as it would have paid if such transaction was processed via the existing CommPay™ Services. A GroupPay™ transaction is defined as an individual guest booking for a meeting, group or event.
In addition, Customer authorizes Onyx to withhold and retain 4% from payments processed as part of the GroupPay Services (as Onyx’s compensation from the Agency), unless a different amount is set forth in Onyx’s contract with the applicable Agency. - Interpretation. For avoidance of doubt, the term “ONYX Services”, as used in the Agreement, is amended to additionally include the GroupPay™ Services.
- General. The parties hereby expressly agree that this Amendment supplements, amends and modifies the Agreement. Except as specifically modified pursuant to this Amendment, all of the provisions of the Agreement remain unchanged and continue in full force and effect. This Amendment may be executed in any number of counterparts, each of which are deemed to be an original, and all of which constitute one and the same instrument. The terms, covenants, conditions and obligations imposed upon each party herein shall be binding upon the successors and assigns of such party.
Effective March 25, 2019 to April 1, 2019
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This Amendment to the CommPay Agreement (this “Amendment”) is made as of {{{current_date}}} (the “Amendment Effective Date”), by and between Worldwide Payment Systems S.A.U. d/b/a Onyx CenterSource (“Onyx”) and {{{company_name}}} (“Customer”). This Amendment amends that certain CommPay Agreement executed by the Customer and Onyx (together with any exhibits and amendments thereto, the “Agreement”), pursuant to which Onyx and its affiliates provide Customer certain commission tracking and processing services as further described therein (the “CommPay™ Services”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
- GroupPay™ Services. In addition to the CommPay™ Services, Onyx will provide Customer the group, meeting, and event commission processing services described herein (the “GroupPay™ Services”).
- Customer Duties. In addition to the basic booking data provided by Customer in connection with the CommPay™ Services, Customer will also provide Onyx event name and other information reasonably requested by Onyx related to any group, event, or meeting bookings.
- Onyx Duties. In addition to processing group, event, and meeting commission payments in accordance with the CommPay™ Service standards, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
- Fees. For each transaction processed via the GroupPay™ Services, Customer will pay Onyx the same per-transaction fees and charges as it would have paid if such transaction was processed via the existing CommPay™ Services. A GroupPay™ transaction is defined as an individual booking for a meeting, group or event.
In addition, Customer authorizes Onyx to withhold and retain 4% from payments processed as part of the GroupPay Services (as Onyx’s compensation from the Agency), unless a different amount is set forth in Onyx’s contract with the applicable Agency. - Interpretation. For avoidance of doubt, the term “ONYX Services”, as used in the Agreement, is amended to additionally include the GroupPay™ Services.
- General. The parties hereby expressly agree that this Amendment supplements, amends and modifies the Agreement. Except as specifically modified pursuant to this Amendment, all of the provisions of the Agreement remain unchanged and continue in full force and effect. This Amendment may be executed in any number of counterparts, each of which are deemed to be an original, and all of which constitute one and the same instrument. The terms, covenants, conditions and obligations imposed upon each party herein shall be binding upon the successors and assigns of such party.
Effective February 20, 2019 to March 25, 2019
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AMENDMENT TO THE COMMPAY AGREEMENT
This Amendment to the CommPay Agreement (this “Amendment”) is made as of {{{current_date}}} (the “Amendment Effective Date”), by and between Worldwide Payment Systems S.A.U. d/b/a Onyx CenterSource (“Onyx”) and {{{company_name}}} (“Customer”). This Amendment amends that certain CommPay Agreement executed by the Customer and Onyx (together with any exhibits and amendments thereto, the “Agreement”), pursuant to which Onyx and its affiliates provide Customer certain commission tracking and processing services as further described therein (the “CommPay™ Services”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
GroupPay™ Services. In addition to the CommPay™ Services, Onyx will provide Customer the group, meeting, and event commission processing services described herein (the “GroupPay™ Services”).
Customer Duties. In addition to the basic booking data provided by Customer in connection with the CommPay™ Services, Customer will also provide Onyx event name and other information reasonably requested by Onyx related to any group, event, or meeting bookings.
Onyx Duties. In addition to processing group, event, and meeting commission payments in accordance with the CommPay™ Service standards, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
Fees. For each transaction processed via the GroupPay™ Services, Customer will pay Onyx the same per-transaction fees and charges as it would have paid if such transaction was processed via the existing CommPay™ Services.
Interpretation. For avoidance of doubt, the term “ONYX Services”, as used in the Agreement, is amended to additionally include the GroupPay™ Services.
General. The parties hereby expressly agree that this Amendment supplements, amends and modifies the Agreement. Except as specifically modified pursuant to this Amendment, all of the provisions of the Agreement remain unchanged and continue in full force and effect. This Amendment may be executed in any number of counterparts, each of which are deemed to be an original, and all of which constitute one and the same instrument. The terms, covenants, conditions and obligations imposed upon each party herein shall be binding upon the successors and assigns of such party.
Effective February 19, 2019 to February 20, 2019
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AMENDMENT TO THE COMMPAY AGREEMENT
This Amendment to the CommPay Agreement (this “Amendment”) is made as of {{{current_date}}} (the “Amendment Effective Date”), by and between Worldwide Payment Systems S.A.U. d/b/a Onyx CenterSource (“Onyx”) and {{{company_name}}} (“Customer”). This Amendment amends that certain CommPay Agreement executed by the Customer and Onyx (together with any exhibits and amendments thereto, the “Agreement”), pursuant to which Onyx and its affiliates provide Customer certain commission tracking and processing services as further described therein (the “CommPay™ Services”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
GroupPay™ Services. In addition to the CommPay™ Services, Onyx will provide Customer the group, meeting, and event commission processing services described herein (the “GroupPay™ Services”).
Customer Duties. In addition to the basic booking data provided by Customer in connection with the CommPay™ Services, Customer will also provide Onyx event name and other information reasonably requested by Onyx related to any group, event, or meeting bookings.
Onyx Duties. In addition to processing group, event, and meeting commission payments in accordance with the CommPay™ Service standards, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
Fees. For each transaction processed via the GroupPay™ Services, Customer will pay Onyx the same per-transaction fees and charges as it would have paid if such transaction was processed via the existing CommPay™ Services.
Interpretation. For avoidance of doubt, the term “ONYX Services”, as used in the Agreement, is amended to additionally include the GroupPay™ Services.
General. The parties hereby expressly agree that this Amendment supplements, amends and modifies the Agreement. Except as specifically modified pursuant to this Amendment, all of the provisions of the Agreement remain unchanged and continue in full force and effect. This Amendment may be executed in any number of counterparts, each of which are deemed to be an original, and all of which constitute one and the same instrument. The terms, covenants, conditions and obligations imposed upon each party herein shall be binding upon the successors and assigns of such party.
GroupPay - Amendment to CommPay Agreement [US]
Effective April 17, 2019
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This Amendment to the CommPay Agreement (this “Amendment”) is made as of {{{current_date}}}(the “Amendment Effective Date”), by and between Pegasus Business Intelligence LP d/b/a Onyx CenterSource (“Onyx”) and {{{company_name}}} (“Customer”). This Amendment amends that certain CommPay Agreement executed by the Customer and Onyx (together with any exhibits and amendments thereto, the “Agreement”), pursuant to which Onyx and its affiliates provide Customer certain commission tracking and processing services as further described therein (the “CommPay™ Services”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
- GroupPay™ Services. In addition to the CommPay™ Services, Onyx will provide Customer the group, meeting, and event commission processing services described herein (the “GroupPay™ Services”).
- Customer Duties. In addition to the basic booking data provided by Customer in connection with the CommPay™ Services, Customer will also provide Onyx event name and other information reasonably requested by Onyx related to any group, event, or meeting bookings.
- Onyx Duties. In addition to processing group, event, and meeting commission payments in accordance with the CommPay™ Service standards, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
- Fees. For each transaction processed via the GroupPay™ Services, Customer will pay Onyx the same per-transaction fees and charges as it would have paid if such transaction was processed via the existing CommPay™ Services. A GroupPay™ transaction is defined as an individual guest booking for a meeting, group or event.
In addition, Customer authorizes Onyx to withhold and retain 4% from payments processed as part of the GroupPay Services (as Onyx’s compensation from the Agency), unless a different amount is set forth in Onyx’s contract with the applicable Agency. - Interpretation. For avoidance of doubt, the term “ONYX Services”, as used in the Agreement, is amended to additionally include the GroupPay™ Services.
- General. The parties hereby expressly agree that this Amendment supplements, amends and modifies the Agreement. Except as specifically modified pursuant to this Amendment, all of the provisions of the Agreement remain unchanged and continue in full force and effect. This Amendment may be executed in any number of counterparts, each of which are deemed to be an original, and all of which constitute one and the same instrument. The terms, covenants, conditions and obligations imposed upon each party herein shall be binding upon the successors and assigns of such party.
Effective April 16, 2019 to April 17, 2019
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This Amendment to the CommPay Agreement (this “Amendment”) is made as of {{{@date.current_day}}} (the “Amendment Effective Date”), by and between Pegasus Business Intelligence LP d/b/a Onyx CenterSource (“Onyx”) and {{{Salesforce.account.Name}}} (“Customer”). This Amendment amends that certain CommPay Agreement executed by the Customer and Onyx (together with any exhibits and amendments thereto, the “Agreement”), pursuant to which Onyx and its affiliates provide Customer certain commission tracking and processing services as further described therein (the “CommPay™ Services”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
- GroupPay™ Services. In addition to the CommPay™ Services, Onyx will provide Customer the group, meeting, and event commission processing services described herein (the “GroupPay™ Services”).
- Customer Duties. In addition to the basic booking data provided by Customer in connection with the CommPay™ Services, Customer will also provide Onyx event name and other information reasonably requested by Onyx related to any group, event, or meeting bookings.
- Onyx Duties. In addition to processing group, event, and meeting commission payments in accordance with the CommPay™ Service standards, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
- Fees. For each transaction processed via the GroupPay™ Services, Customer will pay Onyx the same per-transaction fees and charges as it would have paid if such transaction was processed via the existing CommPay™ Services. A GroupPay™ transaction is defined as an individual guest booking for a meeting, group or event.
In addition, Customer authorizes Onyx to withhold and retain 4% from payments processed as part of the GroupPay Services (as Onyx’s compensation from the Agency), unless a different amount is set forth in Onyx’s contract with the applicable Agency. - Interpretation. For avoidance of doubt, the term “ONYX Services”, as used in the Agreement, is amended to additionally include the GroupPay™ Services.
- General. The parties hereby expressly agree that this Amendment supplements, amends and modifies the Agreement. Except as specifically modified pursuant to this Amendment, all of the provisions of the Agreement remain unchanged and continue in full force and effect. This Amendment may be executed in any number of counterparts, each of which are deemed to be an original, and all of which constitute one and the same instrument. The terms, covenants, conditions and obligations imposed upon each party herein shall be binding upon the successors and assigns of such party.
Effective April 1, 2019 to April 16, 2019
DownloadTable of Contents
This Amendment to the CommPay Agreement (this “Amendment”) is made as of {{{current_date}}} (the “Amendment Effective Date”), by and between Pegasus Business Intelligence LP d/b/a Onyx CenterSource (“Onyx”) and {{{company_name}}} (“Customer”). This Amendment amends that certain CommPay Agreement executed by the Customer and Onyx (together with any exhibits and amendments thereto, the “Agreement”), pursuant to which Onyx and its affiliates provide Customer certain commission tracking and processing services as further described therein (the “CommPay™ Services”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
- GroupPay™ Services. In addition to the CommPay™ Services, Onyx will provide Customer the group, meeting, and event commission processing services described herein (the “GroupPay™ Services”).
- Customer Duties. In addition to the basic booking data provided by Customer in connection with the CommPay™ Services, Customer will also provide Onyx event name and other information reasonably requested by Onyx related to any group, event, or meeting bookings.
- Onyx Duties. In addition to processing group, event, and meeting commission payments in accordance with the CommPay™ Service standards, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
- Fees. For each transaction processed via the GroupPay™ Services, Customer will pay Onyx the same per-transaction fees and charges as it would have paid if such transaction was processed via the existing CommPay™ Services. A GroupPay™ transaction is defined as an individual guest booking for a meeting, group or event.
In addition, Customer authorizes Onyx to withhold and retain 4% from payments processed as part of the GroupPay Services (as Onyx’s compensation from the Agency), unless a different amount is set forth in Onyx’s contract with the applicable Agency. - Interpretation. For avoidance of doubt, the term “ONYX Services”, as used in the Agreement, is amended to additionally include the GroupPay™ Services.
- General. The parties hereby expressly agree that this Amendment supplements, amends and modifies the Agreement. Except as specifically modified pursuant to this Amendment, all of the provisions of the Agreement remain unchanged and continue in full force and effect. This Amendment may be executed in any number of counterparts, each of which are deemed to be an original, and all of which constitute one and the same instrument. The terms, covenants, conditions and obligations imposed upon each party herein shall be binding upon the successors and assigns of such party.
Effective March 29, 2019 to April 1, 2019
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This Amendment to the CommPay Agreement (this “Amendment”) is made as of {{{current_date}}} (the “Amendment Effective Date”), by and between Pegasus Business Intelligence LP d/b/a Onyx CenterSource (“Onyx”) and {{{company_name}}} (“Customer”). This Amendment amends that certain CommPay Agreement executed by the Customer and Onyx (together with any exhibits and amendments thereto, the “Agreement”), pursuant to which Onyx and its affiliates provide Customer certain commission tracking and processing services as further described therein (the “CommPay™ Services”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
- GroupPay™ Services. In addition to the CommPay™ Services, Onyx will provide Customer the group, meeting, and event commission processing services described herein (the “GroupPay™ Services”).
- Customer Duties. In addition to the basic booking data provided by Customer in connection with the CommPay™ Services, Customer will also provide Onyx event name and other information reasonably requested by Onyx related to any group, event, or meeting bookings.
- Onyx Duties. In addition to processing group, event, and meeting commission payments in accordance with the CommPay™ Service standards, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
- Fees. For each transaction processed via the GroupPay™ Services, Customer will pay Onyx the same per-transaction fees and charges as it would have paid if such transaction was processed via the existing CommPay™ Services. A GroupPay™ transaction is defined as an individual booking for a meeting, group or event.
In addition, Customer authorizes Onyx to withhold and retain 4% from payments processed as part of the GroupPay Services (as Onyx’s compensation from the Agency), unless a different amount is set forth in Onyx’s contract with the applicable Agency. - Interpretation. For avoidance of doubt, the term “ONYX Services”, as used in the Agreement, is amended to additionally include the GroupPay™ Services.
- General. The parties hereby expressly agree that this Amendment supplements, amends and modifies the Agreement. Except as specifically modified pursuant to this Amendment, all of the provisions of the Agreement remain unchanged and continue in full force and effect. This Amendment may be executed in any number of counterparts, each of which are deemed to be an original, and all of which constitute one and the same instrument. The terms, covenants, conditions and obligations imposed upon each party herein shall be binding upon the successors and assigns of such party.
Effective March 25, 2019 to March 29, 2019
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This Amendment to the CommPay Agreement (this “Amendment”) is made as of {{{current_date}}} (the “Amendment Effective Date”), by and between Worldwide Payment Systems S.A.U. d/b/a Onyx CenterSource (“Onyx”) and {{{company_name}}} (“Customer”). This Amendment amends that certain CommPay Agreement executed by the Customer and Onyx (together with any exhibits and amendments thereto, the “Agreement”), pursuant to which Onyx and its affiliates provide Customer certain commission tracking and processing services as further described therein (the “CommPay™ Services”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
- GroupPay™ Services. In addition to the CommPay™ Services, Onyx will provide Customer the group, meeting, and event commission processing services described herein (the “GroupPay™ Services”).
- Customer Duties. In addition to the basic booking data provided by Customer in connection with the CommPay™ Services, Customer will also provide Onyx event name and other information reasonably requested by Onyx related to any group, event, or meeting bookings.
- Onyx Duties. In addition to processing group, event, and meeting commission payments in accordance with the CommPay™ Service standards, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
- Fees. For each transaction processed via the GroupPay™ Services, Customer will pay Onyx the same per-transaction fees and charges as it would have paid if such transaction was processed via the existing CommPay™ Services. A GroupPay™ transaction is defined as an individual booking for a meeting, group or event.
In addition, Customer authorizes Onyx to withhold and retain 4% from payments processed as part of the GroupPay Services (as Onyx’s compensation from the Agency), unless a different amount is set forth in Onyx’s contract with the applicable Agency. - Interpretation. For avoidance of doubt, the term “ONYX Services”, as used in the Agreement, is amended to additionally include the GroupPay™ Services.
- General. The parties hereby expressly agree that this Amendment supplements, amends and modifies the Agreement. Except as specifically modified pursuant to this Amendment, all of the provisions of the Agreement remain unchanged and continue in full force and effect. This Amendment may be executed in any number of counterparts, each of which are deemed to be an original, and all of which constitute one and the same instrument. The terms, covenants, conditions and obligations imposed upon each party herein shall be binding upon the successors and assigns of such party.
Effective February 20, 2019 to March 25, 2019
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AMENDMENT TO THE COMMPAY AGREEMENT
This Amendment to the CommPay Agreement (this “Amendment”) is made as of {{{current_date}}} (the “Amendment Effective Date”), by and between Pegasus Business Intelligence LP d/b/a Onyx CenterSource (“Onyx”) and {{{company_name}}} (“Customer”). This Amendment amends that certain CommPay Agreement executed by the Customer and Onyx (together with any exhibits and amendments thereto, the “Agreement”), pursuant to which Onyx and its affiliates provide Customer certain commission tracking and processing services as further described therein (the “CommPay™ Services”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
GroupPay™ Services. In addition to the CommPay™ Services, Onyx will provide Customer the group, meeting, and event commission processing services described herein (the “ GroupPay™ Services”).
Customer Duties. In addition to the basic booking data provided by Customer in connection with the CommPay™ Services, Customer will also provide Onyx event name and other information reasonably requested by Onyx related to any group, event, or meeting bookings.
Onyx Duties. In addition to processing group, event, and meeting commission payments in accordance with the CommPay™ Service standards, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
Fees. For each transaction processed via the GroupPay™ Services, Customer will pay Onyx the same per-transaction fees and charges as it would have paid if such transaction was processed via the existing CommPay™ Services.
Interpretation. For avoidance of doubt, the term “Services”, as used in the Agreement, is amended to additionally include the GroupPay™ Services.
General. The parties hereby expressly agree that this Amendment supplements, amends and modifies the Agreement. Except as specifically modified pursuant to this Amendment, all of the provisions of the Agreement remain unchanged and continue in full force and effect. This Amendment may be executed in any number of counterparts, each of which are deemed to be an original, and all of which constitute one and the same instrument. The terms, covenants, conditions and obligations imposed upon each party herein shall be binding upon the successors and assigns of such party.
Effective February 20, 2019 to February 20, 2019
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AMENDMENT TO THE COMMPAY AGREEMENT
This Amendment to the CommPay Agreement (this “Amendment”) is made as of {{{current_date}}} (the “Amendment Effective Date”), by and between Pegasus Business Intelligence LP d/b/a Onyx CenterSource (“Onyx”) and {{{company_name}}} (“Customer”). This Amendment amends that certain CommPay Agreement executed by the Customer and Onyx (together with any exhibits and amendments thereto, the “Agreement”), pursuant to which Onyx and its affiliates provide Customer certain commission tracking and processing services as further described therein (the “CommPay™ Services”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
GroupPay™ Services. In addition to the CommPay™ Services, Onyx will provide Customer the group, meeting, and event commission processing services described herein (the “ GroupPay™ Services”).
Customer Duties. In addition to the basic booking data provided by Customer in connection with the CommPay™ Services, Customer will also provide Onyx event name and other information reasonably requested by Onyx related to any group, event, or meeting bookings.
Onyx Duties. In addition to processing group, event, and meeting commission payments in accordance with the CommPay™ Service standards, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
Fees. For each transaction processed via the GroupPay™ Services, Customer will pay Onyx the same per-transaction fees and charges as it would have paid if such transaction was processed via the existing CommPay™ Services.
Interpretation. For avoidance of doubt, the term “Services”, as used in the Agreement, is amended to additionally include the GroupPay™ Services.
General. The parties hereby expressly agree that this Amendment supplements, amends and modifies the Agreement. Except as specifically modified pursuant to this Amendment, all of the provisions of the Agreement remain unchanged and continue in full force and effect. This Amendment may be executed in any number of counterparts, each of which are deemed to be an original, and all of which constitute one and the same instrument. The terms, covenants, conditions and obligations imposed upon each party herein shall be binding upon the successors and assigns of such party.
Effective February 19, 2019 to February 20, 2019
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AMENDMENT TO THE COMMPAY AGREEMENT
This Amendment to the CommPay Agreement (this “Amendment”) is made as of {{{current_date}}} (the “Amendment Effective Date”), by and between Pegasus Business Intelligence LP d/b/a Onyx CenterSource (“Onyx”) and {{{company_name}}} (“Customer”). This Amendment amends that certain CommPay Agreement executed by the Customer and Onyx (together with any exhibits and amendments thereto, the “Agreement”), pursuant to which Onyx and its affiliates provide Customer certain commission tracking and processing services as further described therein (the “CommPay™ Services”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
GroupPay™ Services. In addition to the CommPay™ Services, Onyx will provide Customer the group, meeting, and event commission processing services described herein (the “ GroupPay™ Services”).
Customer Duties. In addition to the basic booking data provided by Customer in connection with the CommPay™ Services, Customer will also provide Onyx event name and other information reasonably requested by Onyx related to any group, event, or meeting bookings.
Onyx Duties. In addition to processing group, event, and meeting commission payments in accordance with the CommPay™ Service standards, Onyx will provide Customer certain online tools and functionality to review and track group, event, and meeting status, actualization, and related information.
Fees. For each transaction processed via the GroupPay™ Services, Customer will pay Onyx the same per-transaction fees and charges as it would have paid if such transaction was processed via the existing CommPay™ Services.
Interpretation. For avoidance of doubt, the term “Services”, as used in the Agreement, is amended to additionally include the GroupPay™ Services.
General. The parties hereby expressly agree that this Amendment supplements, amends and modifies the Agreement. Except as specifically modified pursuant to this Amendment, all of the provisions of the Agreement remain unchanged and continue in full force and effect. This Amendment may be executed in any number of counterparts, each of which are deemed to be an original, and all of which constitute one and the same instrument. The terms, covenants, conditions and obligations imposed upon each party herein shall be binding upon the successors and assigns of such party.
ADS - Terms and Conditions for Analytic Data Services
Effective March 4, 2019
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TERMS AND CONDITIONS FOR ANALYTIC DATA SERVICES PLATFORM
These Terms and Conditions for Analytic Data Services Platform (these “Terms”) are a binding legal agreement between the customer (“Customer”) executing an order form, purchase order, subscription agreement, enrollment form, or other transaction document that references these Terms (an “Order”), and Pegasus Business Intelligence, LP d/b/a Onyx CenterSource (“Onyx”). By executing an Order, Customer agrees to be legally bound by the then-current version of these Terms. The “Agreement” consists of the Order, these Terms, and any other policies or documents expressly referenced in any of the foregoing. The Agreement takes effect on the date of the applicable Order (the “Order Date”).
1. PLATFORM.
1.1. Platform Access. Subject to Customer’s ongoing compliance with the Agreement, Onyx grants Customer a non-exclusive, non-transferable license to access and use Onyx’s Analytic Data Services platform (the “Platform”) and the information, data, materials, or other content included or available therein (collectively, “Content”) during the Term (as defined below) for its own internal business purposes. The Platform is designed to allow users to create, view, and track: (a) for hotel customers, operational reporting, variable commission analysis, geographic analysis, and related information; and (b) for travel agency customers, stay realization and related information.
1.2. Account and Credentials. Onyx will generate one or more accounts for Customer to access the Platform. “Credentials” means the username and password combination, or other login credentials, used to access the Platform on Customer’s account. Customer is responsible for maintaining the security of its Credentials, and will be responsible for any actions taken using such Credentials.
1.3. Restrictions. Customer will not: (i) rent, lease, lend, sell, redistribute, sublicense, or otherwise grant access to the Platform or Content to anyone other than its employees; (ii) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Platform or Content; (iii) transmit any viruses or other harmful, disruptive, or malicious computer code or otherwise interfere with the operation of the Platform or any person’s or entity’s use and enjoyment thereof; (iv) use any robot, bot, spider, or other automatic or manual device or process to monitor, scrape, or copy any part of the Platform or Content; or (v) use the Platform or Content to develop or improve a competing product or service; or (vi) act in any unlawful manner in connection with the Platform or Content.
1.4. Ownership and Confidentiality. As between the parties, Onyx will retain all right, title, and interest in and to the Platform and Content, including any trademark, copyright, patent, trade secret, or other intellectual property rights therein. Customer will maintain the Content in confidence using at least the same degree of care as it uses to protect its own confidential information, but no less than reasonable care. Customer will not disclose any Content to any third party other than to its employees and contractors who have a need to know and who are bound by obligations of confidentiality at least as restrictive as those set forth herein. Customer will be responsible for any unauthorized disclosure or use by any of its employees or contractors. Upon any termination or expiration of the Agreement, Customer will destroy any Content in its possession or control. Upon Onyx’s reasonable request, Customer will: (i) identify the employees or contractors it allows to access the Platform and promptly notify Onyx of any changes to this list; and (ii) complete a network security survey in a form provided by Onyx. The parties acknowledge and agree that breach of this section may lead to irreparable harm for which monetary damages would be inadequate remedy, and that the non-breaching party will thus be entitled to seek equitable relief, including injunctive relief, in addition to any other rights and remedies at law or under the Agreement. If Customer provides any feedback or suggestions regarding the Platform or Content, Customer grants Onyx a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid-up, transferable and sublicensable license to use and exploit such feedback and suggestions without any obligation of compensation or attribution to Customer.
1.5. Data Usage. If Customer is a current customer of Onyx’s commission processing and related services, whether as a hotel or travel agency, then (notwithstanding anything to the contrary in the existing service agreements between Onyx and Customer) Customer hereby grants Onyx a perpetual, irrevocable, fully paid and royalty free, worldwide license to use, copy, perform, modify and prepare derivative works based on any data, content or materials provided by Customer in connection with the Services, provided that Onyx aggregates or otherwise anonymizes such data, content, or materials such that it cannot be used to identify Customer or any other entity or individual (“Aggregated Data”). Aggregated Data will not be deemed confidential information of Customer, and Onyx may retain, use, and disclose such Aggregated Data freely in its sole discretion, including to operate and improve the Platform.
1.6. Platform Changes. Onyx reserves the right to alter, change or improve any part of the Platform as it deems necessary, including if required as a result of regulatory changes or other changes imposed by third parties beyond Onyx’s reasonable control.
2. FEES AND PAYMENT.
Customer will pay Onyx the fees as set forth in the Order (the “Fees”). All Fees are non-cancellable and non-refundable. Onyx may modify the Fees and pricing structure annually by providing Customer notice of the new fees and pricing structure at least 90 days before they take effect. All Fees are exclusive of, and Customer will be responsible for payment of, all taxes except for those based on Onyx’s net income or payroll.
3. TERM AND TERMINATION.
3.1. Term. The Agreement is effective as of the Order Date and, unless terminated in accordance with Section 3.2 below, will continue for the period set forth in the Order Form (including any renewals described therein) (the “Term”).
3.2. Termination. Either party may terminate the Agreement if the other party materially breaches any of its obligations hereunder and does not cure such breach within 30 days of written notice by the non-breaching party. Furthermore, Onyx may immediately suspend Customer’s access to the Platform in the event of: (i) Customer’s breach of Sections 1.3 or 1.4 above; (ii) any circumstance that, in Onyx’s sole reasonable discretion, jeopardizes the security, integrity, and confidentiality of the Platform or of Onyx’s or any other entity’s networks or systems; or (iii) as otherwise required to comply with applicable law. In the event of such suspension, Onyx will notify Customer as soon as practicable of the reason for the suspension, and will cooperate with Customer in good faith to resolve the problem and restore access. Onyx will have no liability for any such suspension.
3.3. Effect of Termination. Upon any termination or expiration of the Agreement, Customer’s access to the Platform will be disabled and Customer will promptly pay to Onyx any outstanding amounts owed to Onyx. Sections 1.3, 1.4, 1.5, 2, 3.3, and 4 through 7 will survive any termination or expiration of the Agreement.
4. INDEMNITY. Customer will defend, indemnify and hold harmless Onyx, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by them in connection with a third party claim arising out of Customer’s use of the Platform or breach of the Agreement.
5. DISCLAIMER. THE PLATFORM AND CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ONYX HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PERFORMANCE, NON-INFRINGEMENT, OR TITLE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE AGREEMENT BY ONYX IS TERMINATION OF THE AGREEMENT. WITHOUT LIMITING THE FOREGOING, ONYX DOES NOT WARRANT THAT THE PLATFORM OR CONTENT WILL MEET CUSTOMER’S NEEDS OR OBTAIN FOR CUSTOMER ANY PARTICULAR RESULTS, OR THAT ANY ASPECT OF THE PLATFORM OR CONTENT WILL WORK PROPERLY, OPERATE ERROR-FREE, OR WILL BE AVAILABLE CONTINUOUSLY. THE PLATFORM AND CONTENT ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND ARE NOT INTENDED AS A RECOMMENDATION FOR ANY PARTICULAR ACTION OR INACTION OR AS AN ENDORSEMENT OF ANY THIRD PARTIES. CUSTOMER AGREES THAT USE OF THE PLATFORM DOES NOT GUARANTEE ANY PARTICULAR RESULTS, INCLUDING WITHOUT LIMITATION SALES, PROFITS, REVENUE, OR ACHIEVEMENT OF ANY OTHER BUSINESS GOALS.
THE PLATFORM MAY CONTAIN LINKS TO THIRD-PARTY WEBSITES NOT UNDER ONYX’S CONTROL OR OPERATION (“THIRD-PARTY SITES”). IN NO EVENT WILL ONYX BE RESPONSIBLE OR LIABLE FOR, DIRECTLY OR INDIRECTLY, AND CUSTOMER HEREBY FULLY RELEASES ONYX, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “ONYX PARTIES”) FROM, ANY DAMAGES OR LOSSES CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY CONTENT, PRODUCTS, SERVICES OR OTHER MATERIALS AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES.
6. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL ONYX BE LIABLE TO CUSTOMER FOR ANY: (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER ARISING (INCLUDING NEGLIGENCE); OR (B) AMOUNT IN EXCESS OF THE AMOUNT PAID BY CUSTOMER TO ONYX FOR ACCESS TO THE PLATFORM IN THE PAST TWELVE MONTHS. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN REPRESENT AN INSEPARABLE ALLOCATION OF RISK (INCLUDING, WITHOUT LIMITATION, IN THE EVENT OF A TOTAL, PARTIAL AND/OR FUNDAMENTAL BREACH OF THIS AGREEMENT) THAT IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. CUSTOMER MAY NOT BRING OR INSTITUTE ANY CLAIM, ACTION, OR PROCEEDING AGAINST ONYX IN CONNECTION WITH THE PLATFORM OR CONTENT MORE THAN TWELVE MONTHS AFTER THE CAUSE OF ACTION ARISES.
7. MISCELLANEOUS.
7.1. Notice. Any notice of non-renewal, breach, or termination given by Customer hereunder must be sent in writing to Onyx at either Two Lincoln Centre, 5420 LBJ Freeway, Suite 900, Dallas, TX 75240. Onyx may provide notice to Customer hereunder in writing or by email using the contact information set forth in the applicable Order. Customer is responsible for ensuring such contact information stays current, and may update its contact information by providing Onyx written notice of any such updates.
7.2. Modifications. Onyx may update or revise these Terms from time to time. Onyx will make the then-current version of these Terms available on its website. By continuing to use the Services after these Terms have been updated, Customer agrees to be bound by then then-currently posted version of these Terms.
7.3. Governing Law. The Agreement will be governed by the laws of the State of Texas, without regard to its conflict of law principles, and all disputes hereunder will be resolved in the applicable state or federal courts located in Dallas County, Texas. The parties consent to the exclusive jurisdiction of such courts and waive any jurisdictional or venue defenses otherwise available.
7.4. Publicity. Onyx may use Customer’s name and address in any listing, advertisement or promotional material to indicate that Customer is receives the Services from Onyx and endorses the Services.
7.5. Force Majeure. Other than Customer’s obligation to pay Fees, neither party shall be liable to the other for any failure to meet its obligations if such failure is due to any cause beyond the non-performing party's reasonable control.
7.6. No Waiver. Non-enforcement by either party of any term or condition of the Agreement will not constitute a waiver. Subject to Section 7.2 of these Terms, no waiver, amendment, alteration, or modification of the Agreement will be effective or binding unless it is set forth in a writing signed by duly authorized representatives of both parties.
7.7. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity will not affect the validity or operation of any other provision and such invalid provision will be deemed severed from the Agreement.
7.8. Successors; Assignment. The Agreement will be binding on and will inure to the benefit of the parties hereto and their permitted heirs, administrators, successors, and assigns. The Agreement may not be assigned, conveyed, or otherwise transferred by Customer except with prior written consent of Onyx. Any attempted assignment in violation of this section will be null and void.
7.9. Independent Contractors. The parties are independent contractors. Nothing herein will be construed to create a partnership, joint venture, or similar arrangement between Onyx and Customer. Neither party shall be deemed to be an agent, employee, or representative of the other.
7.10. Entire Agreement. The Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, with regard to the subject matter hereof.
7.11. Language. This Agreement is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of these Terms or this Agreement into another language is for convenience only, and no such translation will be binding against the parties hereto.
TÉRMINOS Y CONDICIONES PARA LOS HOTELES CLIENTES
Effective April 8, 2019
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These Terms and Conditions have been translated from the original English version, which is available at signup.onyxcentersource.com/#hotels. This translated version is offered merely as a convenience. The English version of these Terms and Conditions is the legally-binding version and controls in all respects.
Estos Términos y Condiciones fueron traducidos de la versión original en idioma inglés que se encuentra en signup.onyxcentersource.com/#hotels. Esta versión traducida se ofrece simplemente para su conveniencia. La versión en idioma inglés de estos Términos y Condiciones es la versión legalmente obligatoria y tiene precedencia en todos los aspectos sobre las demás.
Estos Términos y Condiciones para Hoteles Clientes (denominados de ahora en adelante “Términos”) constituyen un contrato legal vinculante entre el cliente (denominado de ahora en adelante el “ Cliente”) que efectúa una orden de compra, contrato de suscripción, formulario de inscripción u otro documento de transacción en el cual se hace referencia a estos Términos (denominados de ahora en adelante la “ Orden”) y Pegasus Business Intelligence, LP que opera bajo el nombre de Onyx CenterSource o la filial de Onyx que efectúa la Orden (en cualquiera de los casos, denominadas “ Onyx ”). Al efectuar una Orden, el Cliente acepta estar obligado legalmente por la versión de estos Términos que esté vigente en ese momento.
1. DEFINICIONES.
Las “Agencias” son las agencias de viaje y las entidades similares.
El “Contrato” es la Orden, estos Términos o todo anexo, política o documento al que se haga referencia en cualquiera de los documentos precedentes.
Los “Datos de Reservas” son un archivo que contiene la información sobre la reserva del Cliente, como se describe con más detalle en la sección 2.2 de estos Términos.
La “Comisión” es la Comisión que debe pagar el Cliente a una Agencia.
La “Transacción Comisionable” es toda reserva que sea identificada por el Cliente como total o parcialmente comisionable y por la cual se procesa la Comisión asociada según lo establecido en este Contrato.
Los “Servicios CommPay™” son los servicios de procesamiento de comisiones generales que ofrece Onyx y que se describen con más detalle en este documento.
El “Aviso de Pago” es el informe que envía Onyx al Cliente con una lista de los montos de las comisiones adeudadas a las agencias.
Los “Servicios GroupPay™” son los servicios de procesamiento de comisiones por eventos, reuniones y grupos que ofrece Onyx y que se describen con más detalle en este documento.
La “Fecha de la Orden” en la fecha efectiva de la Orden correspondiente.
El “Ciclo de Procesamiento” es la frecuencia con la cual Onyx recibe los Datos de Reservas del Cliente, como se establece en la Orden.
Los “Servicios” son los Servicios de CommPay™ y si están incluidos en una Orden relevante, los Servicios de GroupPay™.
2. SERVICIOS.
2.1. En general. Una vez enviada una Orden que incluye Servicios de CommPay™ y/o Servicios de GroupPay™, Onyx añadirá al Cliente a su sistema como participante de los Servicios de CommPay™ y/o Servicios de GroupPay™.
2.2. Datos de Reservas. Cada Ciclo de Procesamiento, el Cliente le proporcionará a Onyx toda la información o los datos en un formulario solicitado en forma razonable por Onyx con respecto a todas las reservas (lo cual incluye los casos en los cuales no se presentó el huésped, las cancelaciones y las transacciones no sujetas a comisión) efectuadas por las Agencias con Onyx. Los Clientes que reciben Servicios de GroupPay™ deberán proporcionar también el nombre del evento y cualquier otra información solicitada en forma razonable por Onyx y que se relacione con reservas de reuniones, eventos o grupos.
2.3. Aviso de Pago; Distribución. Onyx creará y proporcionará un Aviso de Pago para cada Ciclo de Procesamiento que estará basado en los Datos de Reservas. El Cliente le transferirá a Onyx todos los montos de las Comisiones incluidas en el Aviso de Pago dentro del plazo establecido en el aviso. Luego de cada Ciclo de Procesamiento, Onyx distribuirá los pagos de Comisiones correspondientes que haya recibido efectivamente del Cliente a la Agencias relevantes, según la información proporcionada por el Cliente. Onyx distribuirá esos pagos: (i) a los Miembros en la divisa seleccionada por dichos Miembros; y (ii) a las agencias que no sean miembros en dólares estadounidenses, a menos que se especifique lo contrario en la Orden o que haya sido solicitado razonablemente por el Cliente y acordado por Onyx. Para disipar dudas, Onyx no tendrá ninguna obligación o responsabilidad de distribuir ninguna Comisión a las Agencias que sea superior a los montos pagados efectivamente por adelantado a Onyx por el Cliente. Si el Cliente disputa de buena fe alguno de los montos adeudados que se han establecido en el Aviso de Pago, deberá darle a Onyx aviso por escrito con información razonablemente detallada acerca de la disputa. Toda disputa que no haya sido informada a Onyx dentro de los 60 días de que el cliente haya recibido el Aviso de Pago correspondiente, será considerada no exigible de forma concluyente.
2.4. Los Servicios GroupPay™. Si una Orden incluye Servicios de GroupPay™, además de procesar los pagos de Comisiones por reuniones, eventos y grupos como se ha indicado anteriormente, Onyx le proporcionará al Cliente herramientas y funciones en línea que le permitirán efectuar un seguimiento del estado de las reuniones, eventos y grupos y obtener información actualizada y relacionada sobre ellos.
2.5. Consultas sobre Comisiones. Si Onyx recibe consultas de Agencias con respecto a las Comisiones, hará todos los esfuerzos razonables para revisar, investigar y responder dichas consultas basándose en los Datos de Reservas y en otra información recibida del Cliente. Onyx no estará obligada a revisar, investigar o responder ninguna consulta que se relacione con transacciones que se hayan completado más de 12 meses antes de recibir la consulta. Onyx podrá reenviarle las consultas al Cliente para que realice revisiones ulteriores y el Cliente revisará e investigará las consultas y le responderá a Onyx prontamente.
2.6. Implementación; Modificación del servicio. Las partes harán los esfuerzos que sean comercialmente razonables para implementar los Servicios dentro de los 60 días hábiles a partir de la Fecha de la Orden. Onyx podrá ocasionalmente modificar los Servicios a su total discreción, siempre que ninguna de esas modificaciones tenga consecuencias materiales negativas para el uso de los Servicios que haga el Cliente.
2.7. Propiedad. Onyx mantendrá todo derecho, título e interés sobre la información, el software y otros materiales que proporcione o ponga a disposición del Cliente en relación con los Servicios. El Cliente mantendrá todo derecho, título e interés sobre la información que le proporcione Onyx en relación con los Servicios. El Cliente le otorga a Onyx una licencia perpetua, irrevocable, totalmente paga y sin regalías, en todo el mundo, para usar, copiar, realizar, modificar y preparar trabajos derivados basados en datos, contenidos o materiales proporcionados por el Cliente en relación con los Servicios. Onyx podrá agrupar o mantener anónimos los datos para que no puedan ser utilizados para identificar al Cliente o a ninguna otra persona (“ Datos Agrupados”). Los Datos Agrupados no serán considerados Información Confidencial del Cliente y Onyx podrá retener, usar y divulgar estos Datos Agrupados con libertad y a su total discreción.
2.8. Protección de los Datos. El Anexo sobre el Procesamiento de Datos de Onyx que está disponible en signup.onyxcentersource.com/#data se incorpora a estos Términos y tiene carácter vinculante.
3. COMISIONES Y PAGO.
3.1. Comisiones. El cliente le pagará a Onyx las comisiones establecidas en la Orden (“Comisiones ”). Las Comisiones no son cancelables y no pueden ser reembolsadas. Onyx podrá modificar las comisiones y la estructura de precios anualmente siempre que le proporcione un aviso al Cliente sobre las nuevas comisiones y la estructura de precios como mínimo, 90 días antes de que entren en vigencia.
3.2. Cargos por Servicios Profesionales. Onyx no tiene obligación de prestar ningún servicio que se encuentre fuera del alcance de los Servicios establecidos en este documento. Todo Servicio fuera del alcance solicitado por el Cliente será prestado a discreción de Onyx y estará sujeto a los precios vigentes cobrados por servicios profesionales.
3.3. Cambio de divisas. El Cliente sabe que Onyx incurre en costos y riesgos para la conversión de las divisas en beneficio del Cliente y acepta que Onyx incluya un margen estándar o de beneficio en la tasa de conversión para cubrir estos riesgos.
3.4. Impuestos. Todos los montos pagaderos conforme a este Contrato excluyen los impuestos de ventas, uso, valor agregado y otros impuestos, excepto los impuestos que se basan en la nómina o los ingresos de Onyx (denominados colectivamente, “ Impuestos”). El Cliente será responsable ante la autoridad impositiva relevante de todos los Impuestos correspondientes cobrados sobre los Servicios y de su pago a dicha autoridad. Cuando se solicite, el Cliente le pagará inmediatamente a Onyx un monto equivalente a dichos Impuestos efectivamente pagados o que deban ser pagados o recaudados por Onyx y de los cuales sea responsable el Cliente en virtud de esta sección.
4. PERÍODO DE DURACIÓN Y RESCISIÓN.
4.1. Período de Duración. A menos que se especifique lo contrario en la Orden, este Contrato tiene vigencia a partir de la Fecha de la Orden y continuará teniendo vigencia durante un periodo de tres años (el “ Período Inicial”), en cuyo momento, será renovado automáticamente por períodos adicionales de un año (cada uno de los cuales se denomina “ Período de Renovación ” los cuales, junto con el Periodo Inicial se denominan el “Período de duración”) a menos que alguna de las partes envíe un aviso de no renovación, como mínimo, 90 días antes de la finalización del período de duración vigente.
4.2. Rescisión. Cualquiera de las partes podrá rescindir este Contrato si la otra parte infringe materialmente cualquiera de sus obligaciones y no corrige dicho incumplimiento dentro de los 30 días de haber recibido aviso por escrito de la parte que no infringió el Contrato. Si el Cliente infringe materialmente el Contrato y no corrige dicho incumplimiento dentro de los dos días hábiles de haber recibido el aviso, Onyx podrá suspender el cumplimiento del Contrato hasta que se corrija el incumplimiento. Onyx podrá informar a las Agencias relevantes acerca de dicha suspensión y el resto del Contrato permanecerá vigente durante el período de suspensión.
4.3. Efecto de la Rescisión. Una vez que el Contrato sea rescindido o venza, el Cliente le pagará inmediatamente a Onyx todo monto pendiente adeudado. Además, si el Contrato es rescindido debido al incumplimiento del Cliente, el Cliente deberá pagarle a Onyx un cargo por rescisión anticipada equivalente al 50 % de los Cargos, prorrateado a un monto mensual que deberá multiplicarse por el número de meses que resten en el Período Inicial o en el Período de Renovación. Las partes acuerdan que este cargo por rescisión anticipada no constituye una multa sino un estimado razonable de los daños a los que puede estar expuesto Onyx en el caso de una rescisión por incumplimiento del Cliente ya que los daños reales pueden ser difíciles de determinar con exactitud. La secciones 1, 2.7, 3, 4.3, 5, 7, 8, 9 y 10 de este Contrato continuarán teniendo validez en caso de rescisión o vencimiento.
5. CONFIDENCIALIDAD.
5.1. Definición. La “Información Confidencial ” es toda información que no tenga carácter público y que una de las partes divulgue a la otra, en cualquier forma, y que debido a la naturaleza de la información o a las circunstancias que rodean a la divulgación, deba ser interpretada razonablemente como confidencial. La Información Confidencial incluye, a título meramente enunciativo, el software, los procesos y otra información técnica, financiera o comercial. La Información Confidencial no incluye la siguiente información: (a) información que era o comenzó a formar parte del dominio público sin que haya habido ningún acto u omisión por parte del destinatario; (b) información que el destinatario pueda demostrar que estaba en su posesión o era de su conocimiento antes de la divulgación; (c) información que haya sido desarrollada en forma independiente por el destinatario sin el uso de ninguna Información Confidencial o referencia a la misma; o (d) información que el destinatario haya recibido de una compañía externa sin infringir ninguna de las obligaciones de confidencialidad.
5.2. Protección. La parte que divulga mantendrá en todo momento todo derecho, título e interés sobre su Información Confidencial. El destinatario deberá mantener el carácter confidencial de toda Información Confidencial que reciba, utilizando como mínimo el mismo grado de cuidado que utiliza para proteger su propia información confidencial y en ningún caso, un cuidado menor que el considerado razonable. El destinatario no divulgará ninguna Información confidencial a ninguna compañía externa exceptuando a sus empleados, filiales y contratistas que necesiten conocerla y que estén sometidos a obligaciones de mantener la confidencialidad que sean como mínimo tan restrictivas como las que se establecen en este documento. El destinatario será responsable de toda divulgación o uso ilegales por parte de cualquiera de sus empleados o contratistas. Cuando algún tribunal u otra autoridad le ordene al destinatario divulgar Información Confidencial, el destinatario deberá informarle inmediatamente a la parte que divulga acerca de dicha orden y colaborar razonablemente con la parte que divulga la información para impugnar dicha divulgación, a expensas de la parte que divulga. Una vez que este Contrato haya sido rescindido o venza o en cualquier momento luego de que la parte que divulga efectúe una solicitud razonable, el destinatario deberá devolver o destruir toda Información Confidencial que esté en su posesión o bajo su control.
5.3. Seguridad de la red. Una vez recibida la solicitud razonable de Onyx, el Cliente deberá: (i) identificar a los empleados o contratistas a los cuales les otorga acceso a los sistemas o plataformas de Onyx e informar inmediatamente a Onyx toda modificación en esa lista y (ii) completar una evaluación de la seguridad de la red en un formulario suministrado por Onyx. Una vez que Onyx le haya proporcionado aviso por escrito al Cliente, podrá suspender los Servicios y el acceso del Cliente a su sistema en respuesta a lo que Onyx considere una amenaza razonable a la seguridad de la red, siempre que las partes colaboren entonces de buena fe para resolver el problema y restaurar el acceso.
5.4. Reparaciones. Las partes reconocen y acuerdan que el incumplimiento de esta Sección 5 puede ocasionar daño irreparable para el cual se considere inadecuada como reparación una indemnización monetaria y que en ese caso, la parte cumplidora tendrá entonces derecho a solicitar una compensación equitativa que puede incluir medidas cautelares, además de cualquier otro derecho o reparación establecido por ley o en este Contrato.
6. DECLARACIONES. Cada parte declara garantiza lo siguiente: (i) que tiene derecho, poder y autoridad para celebrar este Contrato y cumplir todas las obligaciones establecidas en el mismo; (ii) que la celebración de este contrato no infringe ningún contrato u obligación existente entre ella y otra compañía; y (iii) que posee y mantendrá en todo momento, procedimientos y políticas de seguridad de la red que sean comercialmente razonables. El Cliente declara y garantiza que toda información que le proporcione a Onyx según el Contrato, será completa y precisa.
7. INDEMNIZACIÓN. El Cliente defenderá, indemnizará y eximirá de toda responsabilidad a Onyx, sus subsidiarias, filiales, ejecutivos, directores, agentes, empleados y cesionarios en casos de reclamaciones, demandas judiciales, procesos, pérdidas, daños, responsabilidades legales, costos y gastos (lo cual incluye a título meramente enunciativo, los honorarios razonables de los abogados) que haya sufrido o en los que haya incurrido en relación con una reclamación de otra compañía ocasionada por: (i) el uso de los Servicios por parte del Cliente; (ii) el uso que haga Onyx de información proporcionada por el Cliente; o (iii) el incumplimiento de este Contrato por parte del Cliente.
8. EXENCIÓN DE RESPONSABILIDAD. Como procesador de comisiones, el papel de Onyx en lo sucesivo es meramente el de una cámara de compensación y Onyx no tiene responsabilidad u obligación de: (i) distribuir ninguna Comisión supuestamente adeudada por el Cliente a la Agencias cuyo pago no haya recibido Onyx efectivamente del Cliente; o (ii) solucionar o participar en cualquier controversia entre el Cliente y una Agencia. Onyx no es responsable de los actos u omisiones de otras compañías lo cual incluye actos u omisiones relacionados con transferencias cablegráficas, depósitos directos u otros servicios relacionados con el Contrato. Onyx no es responsable por ningún error en la información proporcionada por el Cliente. Onyx no es responsable por la disponibilidad o la funcionalidad del hardware, el software y las redes del cliente y de otras compañías que puedan ser necesarias para prestar efectivamente los servicios. Los servicios y toda otra información u otros materiales proporcionados por ONYX AL CLIENTE SE ENTREGAN “tal como están” Y “según la disponibilidad”. ONYX, POR EL PRESENTE RECHAZA, Y EL CLIENTE, ASÍ LO ACEPTA, TODA GARANTÍA EXPRESA O IMPLÍCITA LO CUAL INCLUYE A TÍTULO ENUNCIATIVO GARANTÍAS DE ADECUACIÓN PARA UN PROPÓSITO EN PARTICULAR, COMERCIALIDAD, DESEMPEÑO EFICIENTE PROFESIONAL, no infracción o título. EL ÚNICO Y EXCLUSIVO RECURSO QUE TENDRÁ EL CLIENTE ANTE EL INCUMPLIMIENTO DEL CONTRATO POR PARTE DE ONYX ES LA RESCISIÓN DEL CONTRATO.
9. LIMITACIÓN DE LA RESPONSABILIDAD. EXCEPTO POR LOS INCUMPLIMIENTOS DE LA SECCIÓN 5 Y LAS OBLIGACIONES DE INDEMNIZACIÓN DE LA SECCIÓN 7, NINGUNA DE LAS PARTES SERÁ RESPONSIBLE ANTE LA OTRA POR NINGÚN DAÑO INDIRECTO, CONTINGENTE, ESPECIAL, PUNITIVO O CONSECUENTE (LO CUAL INCLUYE LUCRO CESANTE) DE LA OTRA PARTE QUE SEA EL RESULTADO DEL CONTRATO O SE RELACIONE CON ÉL, AÚN SI HUBIERA SIDO INFORMADA DE LA POSIBILIDAD DE QUE SE PRODUJERAN DICHOS DAÑOS. EN NINGÚN CASO LA RESPONSABILIDAD TOTAL DE ONYX ANTE EL CLIENTE POR TODAS LAS RECLAMACIONES SEGÚN ESTE CONTRATO PODRÁ SER SUPERIOR A LOS CARGOS RECIBIDOS EFECTIVAMENTE POR ONYX DEL CLIENTE EN LOS 12 MESES ANTERIORES AL EVENTO QUE OCASIONÓ LA RECLAMACIÓN POR DICHOS DAÑOS.
10. DISPOSICIONES VARIAS.
10.1. Aviso. Todo aviso dado por el Cliente en virtud de este Contrato debe ser enviado por escrito a Onyx a Two Lincoln Centre, 5420 LBJ Freeway, Suite 900, Dallas, TX 75240. Onyx podrá proporcionarle aviso al Cliente en virtud de este contrato por escrito o por correo electrónico utilizando la información de contacto establecida en la Orden correspondiente. El Cliente es responsable de asegurarse de que dicha información de contacto sea vigente y podrá actualizar esta información proporcionándole a Onyx un aviso por escrito con las modificaciones.
10.2. Modificaciones. Onyx podrá actualizar o modificar ocasionalmente estos Términos. Cuando lo haga, deberá publicar en el sitio web la versión actualizada de estos Términos. El uso continuado por parte del Cliente de los Servicios una vez que los Términos hayan sido actualizados implica la aceptación de la versión publicada de estos términos.
10.3. Ley vigente. Según la entidad de Onyx que firme la Orden correspondiente, (a) el Contrato estará regido por las leyes de la jurisdicción indicada continuación, sin tener en cuenta el principio del conflicto de leyes y (b) todas las disputas sucesivas se resolverán en los tribunales correspondientes situados en la jurisdicción establecida a continuación. Las partes aceptan la jurisdicción exclusiva de estos tribunales y renuncian a toda otra defensa jurisdiccional o de territorio que hubiera disponible.
| Entidad de Onyx | Ley vigente | Lugar |
| Worldwide Payment Systems, S.A.U., que opera bajo el nombre de Onyx CenterSource | Ley española | Sevilla, España |
| Pegasus Business Intelligence, LP que opera bajo el nombre de Onyx CenterSource | Ley de Texas (EE. UU.) | Condado de Dallas, Texas |
10.4. Publicidad. Onyx podrá utilizar el nombre y domicilio del Cliente en cualquier lista, anunció publicitario o material promocional para mostrar que el Cliente recibe y avala los Servicios de Onyx.
10.5. Fuerza mayor. Excepto por la obligación del Cliente de pagar los cargos, ninguna de las partes será responsable ante la otra por ningún incumplimiento de las obligaciones cuando el incumplimiento se deba a una causa que está más allá del control razonable de la parte incumplidora.
10.6. Renuncia. La decisión de cualquiera de las partes de no ejercer los derechos otorgados por cualquier término o condición del Contrato no constituirá una renuncia a los mismos. Conforme a lo establecido en la Sección 10.1 de estos Términos, ninguna renuncia, enmienda, alteración o modificación del Contrato tendrá vigencia o será vinculante a menos que se establezca en un escrito firmado por representantes debidamente autorizados de las dos partes.
10.7. Separabilidad. Si algún tribunal con jurisdicción competente determina que alguna disposición de este contrato no es válida o es inaplicable, dicha invalidez no afectará la validez o la operación de ninguna otra disposición y la disposición no válida se considerará separada del Contrato.
10.8. Herederos; Cesión. Este Contrato será considerado vinculante para las partes y redundará en su beneficio y el de sus herederos, administradores, sucesores y cesionarios autorizados. El Contrato no podrá ser cedido, transmitido o transferido de ninguna forma por el Cliente, sin contar con la autorización previa y por escrito de Onyx. Todo intento de cesión que infrinja esta sección será nulo y quedará sin efecto.
10.9. Contratistas Independientes. Las partes son contratistas independientes. Nada de lo contenido en este documento se interpretará como la creación de una asociación, empresa conjunta o relación similar entre Onyx y el Cliente. Ninguna de las partes se considerará como agente, empleado o representante de la otra.
10.10. Contrato Completo. El Contrato constituye todo el contrato entre las partes en relación al asunto del presente documento y reemplaza a todos los contratos, arreglos, negociaciones y conversaciones anteriores y contemporáneos, orales o escritos con respecto al asunto del presente documento.
10.11. Idioma. Este Contrato se encuentra solo en idioma inglés y ese será el idioma determinante con respecto este Contrato en todos los aspectos. Toda traducción de estos Términos o de este Contrato a otro idioma se realiza solo para conveniencia y ninguna de sus traducciones será vinculante entre las partes del mismo.
GESCHÄFTSBEDINGUNGEN FÜR AGENTURKUNDEN
Effective May 9, 2019
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GESCHÄFTSBEDINGUNGEN FÜR AGENTURKUNDEN
This Agreement is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of these Terms or this Agreement into another language is for convenience only, and no such translation will be binding against the parties hereto.
Diese Vereinbarung ist nur in englischer Sprache verfügbar, die in jeder Hinsicht die maßgebliche Sprache in Bezug auf diesen Vertrag ist. Jegliche Übersetzung dieser Bedingungen oder dieser Vereinbarung in eine andere Sprache dient nur der Orientierung. Eine solche Übersetzung ist für keine der Parteien bindend.
Diese Geschäftsbedingungen für Agenturkunden (diese „Bedingungen) sind eine bindende rechtliche Vereinbarung zwischen dem Kunden („Kunde“), der ein Auftragsformular, eine Bestellung, einen Abonnementvertrag, ein Anmeldeformular oder ein anderes Transaktionsdokument ausfüllt, das auf diese Geschäftsbedingungen verweist (ein „Auftrag“) und Pegasus Business Intelligence, LP d/b/a Onyx CenterSource oder dem Onyx-Tochterunternehmen, das den Auftrag ausführt (in beiden Fällen „Onyx“). Durch die Erteilung eines Auftrags erklärt der Kunde, dass er an die jeweils aktuelle Version dieser Bedingungen gebunden ist.
1. BEGRIFFSBESTIMMUNGEN.
„Vertrag“ bezeichnet den Auftrag, diese Bedingungen und alle Anlagen, Richtlinien oder Dokumente, auf die in den vorstehenden Punkten verwiesen wird.
„Provisionsabrechnung“ bezeichnet eine im Rahmen der Sure Pay™ Services erstellte Abrechnung, die alle Aufzeichnungen der Teilnehmerprovisionen in Bezug auf den anwendbaren Zahlungszeitraum enthält.
„Provisionsfähige Reservierung“ bezeichnet eine Kundenreservierung, für die vom jeweiligen TSP eine Provision an den Kunden fällig wird.
„Kundenreservierung“ bezeichnet eine vom Kunden (telefonisch oder elektronisch) vorgenommene Reservierung bei einem TSP.
„GroupPay™ Services“ bedeutet, dem Kunden Zugriff auf ein Online-Portal zu gewähren, um Informationen zu Gruppen-, Meeting- und Veranstaltungsbuchungen anzuzeigen, wie in Abschnitt 2.6 unten beschrieben.
„Auftragsdatum“ bezeichnet das Datum des Wirksamwerdens des jeweiligen Auftrags.
„Teilnehmer“ bezeichnet einen TSP, der einen Provisionsabwicklungsvertrag mit Onyx abgeschlossen hat.
„Teilnehmer-Provisionsaufzeichnung“ bezeichnet eine Aufzeichnung, die Onyx von einem Teilnehmer zur Verfügung gestellt wird und in der die Höhe der dem Kunden geschuldeten Provisionen festgelegt ist.
„Zahlungszeitraum“ bezeichnet den geplanten Zyklus, in dem Onyx von den TSPs erhaltene Provisionen an den Kunden ausschüttet (abzüglich etwaiger anfallender Gebühren). Der Zahlungszeitraum ist monatlich, sofern in dem jeweiligen Auftrag nichts anderes festgelegt ist.
„Zahlungsbericht“ bezeichnet einen Datensatz, der als Teil der RecoverPro™ Services erstellt wird und alle von den TSPs bestätigten Kundenreservierungen einschließlich Angaben zu den darauf gezahlten Provisionen enthält.
„RecoverPro™ Services“ bezeichnet das von Onyx angebotene Forderungsmanagement für unbezahlte Provisionen, wie hierin näher beschrieben.
„Dienstleistungen“ bezeichnet in dem in dem jeweiligen Auftrag bestellten Umfang die Sure Pay™-Services, RecoverPro™-Services und GroupPay™-Services.
„Sure Pay™ Services“ bezeichnet die von Onyx angebotenen allgemeinen Konsolidierungsdienste für Provisionszahlungen, wie hierin näher beschrieben.
„TSP“ (Travel Service Provider) bezeichnet ein Hotel oder einen ähnlichen Reisedienstleister, der Kundenreservierungen entgegennimmt.
2. DIENSTLEISTUNGEN.
2.1. Termin, Kundenpflichten Für die Dauer der Laufzeit ernennt der Kunde Onyx als seinen exklusiven, weltweiten und unabhängigen Auftragnehmer zum Sammeln von Kundenreservierungen, zur Bereitstellung von Aufzeichnungen über Buchungsaktivitäten und Verbrauch sowie für die Abwicklung von Provisionszahlungen gemäß den Bedingungen dieses Vertrags. Der Kunde wird alles unterlassen, wodurch die Bearbeitung von Provisionen gemäß diesem Vertrag umgangen oder beeinträchtigt wird. Der Kunde ist allein dafür verantwortlich, Onyx über alle Eigentümerwechsel oder Änderungen anderer Informationen zu informieren, einschließlich u. a. Änderungen der Postanschrift und der ARC-, IATA- oder TIDS-Informationen sowie Informationen zu juristischen Personen. Der Kunde erkennt an und stimmt zu, dass Onyx seine verbundenen Unternehmen weltweit einsetzen kann, um einige oder alle der hier aufgeführten Dienstleistungen zu erbringen.
2.2. Sure Pay™ Services Wenn ein Auftrag Sure Pay™ Services beinhaltet, stellt Onyx die in diesem Abschnitt beschriebene Provisionskonsolidierung bereit. Onyx wird innerhalb von 15 Geschäftstagen nach Ende jeden Zahlungszeitraums: (a) die Provisionsunterlagen der Teilnehmer nach Teilnehmer und entsprechenden Provisionen, die Onyx in Bezug auf einen solchen Zahlungszeitraum erhalten hat, konsolidieren; (b) die Provisionsabrechnung für diesen Zahlungszeitraum an den Kunden übermitteln; und (c) die Provisionen, die von den betreffenden Teilnehmern für diesen Zahlungszeitraum tatsächlich erhalten wurden, abzüglich etwaiger Gebühren, an den Kunden weitergeben. Für Kunden, die nur die Sure Pay™ Services (keine RecoverPro™ Services) erhalten gilt, dass wenn ein Teilnehmer Onyx weniger als den Gesamtbetrag aller Provisionen (einschließlich der den anderen Agenturkunden von Onyx geschuldeten) und der von diesem Teilnehmer geschuldeten Gebühren bezahlt hat, Onyx nicht zur Auszahlung eines Betrags an den Kunden verpflichtet ist, bis dieser Teilnehmer alle Provisionen und Gebühren vollständig bezahlt hat.
2.3. RecoverPro™ Services Wenn ein Auftrag RecoverPro™ Services beinhaltet, haben die Parteien die folgenden Pflichten:
a. Pflichten des Kunden Verantwortlichkeiten des Kunden Der Kunde stellt Onyx alle Informationen oder Daten über Kundenreservierungen (einschließlich Nichterscheinen, Stornierungen und nicht provisionspflichtigen Transaktionen), die der Kunde bei den TSPs getätigt hat, in einem von Onyx bereitgestellten Standardformat zur Verfügung. Der Kunde erkennt an und stimmt zu, dass Onyx auch relevante Informationen zu Kundenreservierungen von TSPs und anderen Dritten einholen kann. Der Kunde leitet Onyx innerhalb von 14 Tagen nach Eingang beim Kunden alle Bestätigungen von Kundenreservierungen weiter, die dem Kunden von den TSPs direkt übermittelt wurden. Der Kunde erkennt an und stimmt zu, dass die Fähigkeit von Onyx zur Bereitstellung der Dienstleistungen von den Daten abhängt, die vom Kunden bereitgestellt werden. Der Kunde ist für etwaige Ungenauigkeiten in diesen Daten verantwortlich. Der Kunde ist allein dafür verantwortlich, Onyx über alle Eigentümerwechsel oder Änderungen anderer Informationen zu informieren, einschließlich u. a. Änderungen der Postanschrift und der ARC-, IATA- oder TIDS-Informationen sowie Informationen zu juristischen Personen. Der Kunde ist dafür verantwortlich, über gesonderte Rechnungsvereinbarungen zu informieren. Dies gilt auch für Vereinbarungen mit einem TSP über Selbstfakturierung. Der Kunde darf keine Rechnungen für bereits über Onyx in Rechnung gestellte Provisionen ausstellen, um eine doppelte Rechnungsstellung zu vermeiden.
b. Verpflichtungen von Onyx Onyx stellt dem Kunden die Inkassodienste für unbezahlte Provisionen bereit, die in diesem Absatz beschrieben werden. Onyx wird: (a) bis maximal 12 Monate nach dem Check-out-Datum in einem automatisierten Prozess Benachrichtigungen an die TSPs versenden, in denen Angaben zu den jeweiligen Kundenreservierungen gemacht werden; (b) falls Onyx (nach seinem alleinigen Ermessen) der Auffassung ist, dass ein TSP nicht reagiert oder die dem Kunden geschuldete Provision nicht vollständig bezahlt hat, weitere Maßnahmen gegen diesen TSP ergreifen, die Onyx für angemessen hält; (c) alle von den TSPs bereitgestellten Bestätigungen und Angaben in Zusammenhang mit den Kundenreservierungen und damit verbundene Provisionen aufzeichnen; (d) den Zahlungsbericht an den Kunden übermitteln; und (e) von TSPs die dem Kunden geschuldeten Provisionen entgegennehmen, und diese Provisionen (abzüglich etwaiger Gebühren) nach jedem Zahlungszeitraum an den Kunden weiterleiten; (f) dem Kunden Zugang zu einem Webportal mit den Standardberichten von Onyx bereitstellen. Onyx wird den TSPs im Namen des Kunden gemäß den unter https://invoice.onyxcentersource.com/#/principles festgelegten Fakturierungsgrundsätzen Provisionsrechnungen für die darin definierten abgedeckten Bereiche ausstellen.
2.4. Provisionsausschüttungen Nach jeder Zahlungsfrist wird Onyx die hieraus fälligen Provisionszahlungen per Banküberweisung in der Währung ausschütten, die vom Kunden im Auftrag angegebenen wurde, außer der Kunde hat etwas anderes gefordert und Onyx hat diesem zugestimmt. Zur Klarstellung sei erwähnt, dass Onyx nicht verpflichtet oder dafür verantwortlich ist, Provisionen an den Kunden auszuzahlen, die über die tatsächlich von den jeweiligen TSPs im Voraus an Onyx gezahlten Beträge , abzüglich etwaiger Gebühren, hinausgehen. Wenn Onyx irrtümlicherweise einen Betrag an den Kunden zahlt, wird der Kunde diese Beträge unverzüglich an Onyx zurückzahlen. Onyx kann Provisionen, die nicht an den Kunden ausgeschüttet werden können oder von diesem nicht beansprucht werden, an die TSP zurückgeben.
2.5. Dienstleister Onyx kann zu Zwecken einer vereinfachten Erbringung der Dienstleistungen mit Drittanbietern zusammenarbeiten, vorausgesetzt, Onyx bleibt für die Erbringung dieser Leistungen durch diese Parteien haftbar. Wenn die Genehmigung oder Einwilligung des Kunden von Partnern oder Unterlieferanten verlangt wird, wird der Kunde diese Einwilligung nicht unbillig verweigern. Onyx ist berechtigt, dem Kunden die Kosten in Rechnung zu stellen, die für die Inanspruchnahme der Leistungen der Partner und/oder Unterlieferanten anfallen.
2.6. GroupPay™ Services Wenn ein Auftrag GroupPay™ Services beinhaltet, gewährt Onyx dem Kunden Zugriff auf bestimmte Online-Tools und -Funktionen, um Gruppen-, Ereignis- und Meetingstatus, Aktualisierungen und ähnliche Informationen zu überprüfen und zu verfolgen.
2.7. Eigentum Onyx behält alle Rechte und Ansprüche an Informationen, Software oder anderen Materialien, die Onyx dem Kunden im Zusammenhang mit den Dienstleistungen zur Verfügung oder bereitgestellt hat. Der Kunde behält alle Rechte und Ansprüche an allen Informationen, die Onyx vom Kunden im Zusammenhang mit den Dienstleistungen bereitgestellt werden. Der Kunde gewährt Onyx hiermit eine unbefristete, unwiderrufliche, vollständig bezahlte und gebührenfreie weltweite Lizenz, Daten, Inhalte oder Materialien, die vom Kunden im Zusammenhang mit den Dienstleistungen bereitgestellt werden, zu verwenden, zu kopieren, auszuführen, zu ändern und davon abgeleitete Werke zu erstellen. Onyx kann Daten so zusammenfassen oder anderweitig anonymisieren, dass sie nicht zur Identifizierung des Kunden oder einzelner Personen verwendet werden können („Aggregierte Daten“). Aggregierte Daten gelten nicht als vertrauliche Informationen des Kunden, und Onyx kann diese aggregierten Daten nach eigenem Ermessen aufbewahren, verwenden und offen legen.
2.8. Datenschutz Der Datenverarbeitungszusatz von Onyx, der unter signup.onyxcentersource.com/#data-de verfügbar ist, ist Bestandteil der vorliegenden Bedingungen.
2.9. Änderungen an Dienstleistungen Onyx behält sich das Recht vor, Teile der Dienstleistungen nach eigenem Ermessen zu modifizieren, zu ändern oder zu verbessern, einschließlich wenn dies aufgrund gesetzlicher Änderungen oder anderer von Dritten auferlegten Änderungen, die außerhalb der Kontrolle von Onyx liegen, erforderlich ist. Der Auftrag an Onyx bezieht sich auf die Bereitstellung der Standarddienstleistungen, die Onyx seinen Kunden im Allgemeinen anbietet, und Onyx behält sich das Recht vor, angeforderte Änderungen oder Modifikationen an diesen Dienstleistungen anzunehmen oder abzulehnen. Alle von Onyx akzeptierten Änderungen werden auf Kosten des Kunden entwickelt und implementiert.
3. GEBÜHREN UND ZAHLUNG.
3.1. Gebühren Der Kunde zahlt Onyx die im Auftrag angegebenen Gebühren (zusammen mit den in diesem Abschnitt 3 beschriebenen Gebühren, die „Gebühren“). Alle Gebühren sind verbindlich und nicht erstattungsfähig. Onyx kann die Gebühren und Preisstruktur jährlich ändern, indem der Kunde mindestens 90 Tage vor Inkrafttreten über die neuen Gebühren und Preisstrukturen informiert wird.
3.2. Gebühren für professionelle Dienstleistungen Onyx ist nicht verpflichtet, Dienstleistungen zu erbringen, die über den hier beschriebenen Umfang hinausgehen. Alle vom Kunden angeforderten Gebühren, die nicht im Umfang dieses Vertrags enthalten sind, werden nach Ermessen von Onyx erhoben und unterliegen den zu diesem Zeitpunkt geltenden Onyx-Preisen für professionelle Dienstleistungen.
3.3. Währungsumrechnung und Bankgebühren Der Kunde erkennt an, dass Onyx bei der Währungsumrechnung zugunsten des Kunden Kosten und Risiken eingeht, und vereinbart, dass Onyx seine Standardmarge oder -aufschlag in den Wechselkurs einbeziehen darf, um diese Elemente abzudecken. In dem Umfang, in dem Onyx bankbezogene Vorgänge oder Aufgaben ausführt (z. B. Scheckeinlösung), um die Dienstleistungen zu verbessern und/oder die Gesamtkosten zu senken, ist Onyx berechtigt, dem Kunden diese Arbeit in Rechnung zu stellen. Solche Margen und Aufschläge für den Währungsumtausch sowie bankspezifische Gebühren werden im Folgenden als Gebühren bezeichnet.
3.4. Verrechnung Onyx hat das Recht, die ihr geschuldeten Gebühren und sonstigen Beträge mit den an den Kunden zu zahlenden Provisionen zu verrechnen. Für den Fall, dass eine solche Verrechnung ergibt, dass der Kunde Onyx einen Nettobetrag schuldet, kann Onyx dem Kunden diesen Betrag in Rechnung stellen. Solche Rechnungen werden vom Kunden innerhalb von 14 Tagen ab Rechnungsdatum bezahlt.
4. LAUFZEIT UND KÜNDIGUNG.
4.1. Laufzeit Sofern im Auftrag nichts anderes festgelegt ist, gilt der Vertrag ab dem Auftragsdatum und läuft drei Jahre (die „Erstlaufzeit“). Danach verlängert er sich automatisch um ein weiteres Jahr (jeweils eine „Verlängerungslaufzeit“ und zusammen mit der Erstlaufzeit die „Laufzeit“), sofern ihn nicht eine der beiden Parteien mindestens 90 Tage vor Ablauf der dann laufenden Laufzeit kündigt.
4.2. Kündigung Jede Partei kann den Vertrag kündigen, wenn die andere Partei gegen eine der vertraglichen Verpflichtungen erheblich verstößt und diesen Verstoß nicht innerhalb von 30 Tagen nachdem die nichtverletzende Partei schriftlich gerügt hat, behoben hat. Wenn der Kunde erheblich gegen den Vertrag verstößt und diesen Verstoß nicht innerhalb von zwei Werktagen nach der Mitteilung behebt, kann Onyx die Erfüllung des Vertrages bis zur Behebung des Verstoßes aussetzen. Onyx ist berechtigt, die betreffenden TSPs über eine solche Aussetzung zu informieren. Der Rest des Vertrags bleibt während der Dauer dieser Aussetzung in Kraft.
4.3. Wirkung der Kündigung Bei Kündigung oder Ablauf der Vereinbarung wird der Kunde alle Onyx geschuldeten ausstehenden Beträge unverzüglich bezahlen. Wenn der Vertrag aufgrund eines Verstoßes des Kunden gekündigt wird, zahlt der Kunde an Onyx außerdem eine Gebühr für die vorzeitige Kündigung in Höhe von 50 % der anteiligen monatlichen Gebühren, multipliziert mit der Anzahl der verbleibenden Monate in der dann gültigen Erst- oder Verlängerungslaufzeit. Die Parteien vereinbaren, dass diese Gebühr für die vorzeitige Kündigung keine Strafzahlung darstellt, sondern einer angemessenen Schätzung des Onyx entstandenen Schadens im Falle einer Kündigung aufgrund eines Verstoßes des Kunden entspricht, da der Onyx tatsächlich entstandene Schaden möglicherweise schwer zu ermitteln ist. Die Abschnitte 1, 2.5, 2.8, 3, 4.3, 5, 7, 8, 9 und 10 bleiben auch nach Kündigung oder Beendigung des Vertrags weiterhin gültig.
5. VERTRAULICHKEIT.
5.1. Definition „Vertrauliche Informationen“ sind nichtöffentliche Informationen, die eine Partei der anderen Partei in jeglicher Form offenlegt und die aufgrund der Art der Informationen oder der Umstände der Offenlegung vernünftigerweise als vertraulich anzusehen sind. Vertrauliche Informationen umfassen unter anderem Software, Prozesse und andere technische, finanzielle oder andere geschäftliche Informationen sowie alle in dem jeweiligen Auftrag festgelegten Preise und sonstigen Bedingungen. Vertrauliche Informationen enthalten keine Informationen, die: (a) ohne Handlung oder Unterlassung des Empfängers öffentlich waren oder in die Öffentlichkeit gelangen; (b) die vor der Offenlegung nachweislich im Besitz des Empfängers oder ihm bekannt waren; (c) vom Empfänger unabhängig und ohne Verwendung oder Verweis auf jedwede vertrauliche Informationen entwickelt wurden; oder (d) die der Empfänger von Dritten ohne Verletzung von Geheimhaltungspflichten erhalten hat.
5.2. Schutz Die offenlegende Partei behält zu jeder Zeit alle Rechte und Ansprüche an ihren vertraulichen Informationen. Der Empfänger wird vertrauliche Informationen vertraulich behandeln und dabei mindestens genauso sorgfältig vorgehen wie beim Schutz seiner eigenen vertraulichen Informationen, jedoch nicht weniger als angemessene Sorgfalt walten lassen. Der Empfänger wird keine vertraulichen Informationen an Dritte weitergeben, außer an seine Mitarbeiter, Tochtergesellschaften und Auftragnehmer, die Kenntnis haben müssen und die an Geheimhaltungspflichten gebunden sind, die mindestens so restriktiv wie die hierin beschriebenen sind. Der Empfänger ist für die fehlerhafte Weitergabe oder Verwendung durch Mitarbeiter oder Vertragspartner verantwortlich. Falls ein Gericht oder eine andere Behörde den Empfänger auffordert, vertrauliche Informationen offenzulegen, wird der Empfänger die offenlegende Partei unverzüglich über eine solche Anordnung informieren und mit der offenlegenden Partei angemessen zusammenarbeiten, um diese Offenlegung auf Kosten der offenlegenden Partei anzufechten. Nach einer Kündigung oder nach Ablauf des Vertrags oder zu einem beliebigen Zeitpunkt auf begründetes Verlangen der offenlegenden Partei wird der Empfänger vertrauliche Informationen, die sich in seinem Besitz oder unter seiner Kontrolle befinden, zurückgeben oder vernichten.
5.3. Netzwerksicherheit Auf begründetes Verlangen von Onyx wird der Kunde: (i) die Mitarbeiter oder Vertragspartner ermitteln, denen es den Zugriff auf die Systeme oder Plattformen von Onyx gestattet und Onyx unverzüglich über Änderungen dieser Liste informieren; und (ii) Angaben zur Netzwerksicherheit in einer von Onyx bereitgestellten Befragung machen. Nach schriftlicher Mitteilung an den Kunden kann Onyx die Dienstleistungen und den Zugang des Kunden zu seinem System aufgrund eines von Onyx nach eigenem Ermessen angenommenen Sicherheitsrisikos aussetzen, vorausgesetzt, die Parteien werden dann in gutem Glauben zusammenarbeiten, um das Problem zu lösen und den Zugriff wiederherzustellen.
5.4. Rechtsbehelfe Die Parteien erkennen an und vereinbaren, dass ein Verstoß gegen diesen Abschnitt 5 zu einem nicht wiedergutzumachenden Schaden führen kann, für den eine monetäre Entschädigung unzureichend ist, und dass die nichtverletzende Partei daher berechtigt ist, zusätzlich zu allen anderen gesetzlichen oder vertraglichen Rechten und Rechtsbehelfen Ansprüche nach Billigkeitsrecht, einschließlich Unterlassungsansprüchen, geltend zu machen.
6. ZUSICHERUNGEN Jede Partei erklärt und sichert zu, dass: (i) sie das Recht, die Befugnis und die Vollmacht hat, den Vertrag abzuschließen und alle ihre Verpflichtungen aus diesem Vertrag vollständig zu erfüllen; (ii) der Vertragsabschluss nicht gegen Vereinbarungen oder Verpflichtungen verstößt, die zwischen ihr und einem Dritten bestehen; und (iii) sie wirtschaftlich vernünftige Netzwerksicherheitsrichtlinien und -verfahren hat und wird diese jederzeit aufrechterhalten wird. Der Kunde sichert zu und garantiert, dass alle Informationen, die er Onyx im Rahmen des Vertrags zur Verfügung stellt, vollständig und genau sind.
7. ENTSCHÄDIGUNG Der Kunde verteidigt, entschädigt und hält Onyx, seine Tochtergesellschaften, verbundene Unternehmen, leitende Angestellten, Direktoren, Vertreter, Angestellte und Abtretungsberechtigte von und gegen alle Ansprüche, Klagen, Verfahren, Verluste, Schäden, Verbindlichkeiten, Kosten und Aufwendungen (u. a.,ohne Beschränkung, angemessene Anwaltshonorare) schadlos, die diesen im Zusammenhang mit Ansprüchen Dritter entstanden sind und die sich ergeben aus: (i) der Nutzung der Dienstleistungen durch den Kunden; (ii) die Nutzung der vom Kunden bereitgestellten Informationen durch Onyx; oder (iii) einen Verstoß des Kunden gegen den Vertrag.
8. HAFTUNGSAUSSCHLUSS Die Rolle von Onyx als Provisionsverarbeiter im Rahmen dieses Vertrags ist nur die einer Abrechnungsstelle. Onyx ist nicht verpflichtet oder verantwortlich, (i) Provisionen, die angeblich dem Kunden geschuldet werden, über die Provisionszahlungen hinaus, die Onyx tatsächlich von TSPs erhalten hat, auszuschütten; oder (ii) Streitfälle zwischen dem Kunden und einem TSP zu klären oder sich daran zu beteiligen. Onyx übernimmt keine Verantwortung für Handlungen oder Unterlassungen Dritter, einschließlich solcher, die mit Überweisungen, Direkteinzahlungen oder anderen Dienstleistungen in Verbindung mit dem Vertrag zusammenhängen, oder für die Nichtzahlung von Provisionen durch einen TSP, und der Kunde stellt Onyx hiermit von der Haftung dafür frei. Onyx haftet nicht für Unrichtigkeiten in den vom Kunden oder von TSPs oder anderen Dritten bereitgestellten Informationen. Onyx ist nicht verantwortlich für die Verfügbarkeit oder das Funktionieren der Hardware, Software und Netzwerke des Kunden und Dritter, die für die wirksame Durchführung der Dienstleistungen erforderlich sein können. Der einzige und ausschließliche Rechtsbehelf des Kunden für etwaige Fehler in Rechnungen oder Berichten besteht darin, dass Onyx die betroffene Rechnung oder den betreffenden Bericht erneut ausstellt. DIE DIENSTLEISTUNGEN UND INFORMATIONEN ODER ANDEREN MATERIALIEN, DIE ONYX DEM KUNDEN ZUR VERFÜGUNG STELLT, WERDEN „WIE BESEHEN“ UND „WIE VERFÜGBAR“ BEREITGESTELLT. ONYX LEHNT HIERMIT JEGLICHE GARANTIEN AB UND DER KUNDE VERZICHTET HIERMIT AUF JEGLICHE GARANTIEN, OB AUSDRÜCKLICH ODER STILLSCHWEIGEND, EINSCHLIESSLICH ABER NICHT BESCHRÄNKT AUF DIE EIGNUNG FÜR EINEN BESTIMMTEN ZWECK, DER MARKTGÄNGIGKEIT, FACHMÄNNISCHEN UND QUALITATIV HOCHWERTIGEN LEISTUNG UND NICHTVERLETZUNG VON RECHTEN. DER EINZIGE UND AUSSCHLIESSLICHE RECHTSBEHELF DES KUNDEN BEI EINEM VERSTOSS GEGEN DEN VERTRAG DURCH ONYX IST DIE KÜNDIGUNG DES VERTRAGS.
9. HAFTUNGSBESCHRÄNKUNG MIT AUSNAHME VON VERSTÖSSEN IN ABSCHNITT 5 UND DER FREISTELLUNGSVERPFLICHTUNG IN ABSCHNITT 7 HAFTET KEINE PARTEI GEGENÜBER DER ANDEREN FÜR INDIREKTE, ZUFÄLLIGE, SPEZIELLE, ENTSCHÄDIGUNGS- ODER FOLGESCHÄDEN (EINSCHLIESSLICH ENTGANGENE GEWINNE ODER UNBEZAHLTE PROVISIONEN) DER ANDEREN PARTEI, DIE RESULTIEREN AUS ODER ZUSAMMENHÄNGEN MIT DEM VERTRAG, SELBST, WENN SIE ÜBER DIE MÖGLICHKEIT DIESER SCHÄDEN INFORMIERT WURDEN. IN KEINEM FALL ÜBERSTEIGT DIE GESAMTHAFTUNG VON ONYX GEGENÜBER DEM KUNDEN FÜR ALLE ANSPRÜCHE AUS DEM VERTRAG DIE GEBÜHREN, DIE ONYX IN DEN 12 MONATEN VOR DEM EREIGNIS, DAS ANLASS ZU DIESEM SCHADENERSATZANSPRUCH GAB, VOM KUNDEN ERHALTEN HAT.
10. VERSCHIEDENES.
10.1. Mitteilungen Jegliche Mitteilung über die Nichtverlängerung, einen Verstoß oder eine Kündigung muss vom Kunden schriftlich an Onyx entweder an Two Lincoln Center, 5420 LBJ Freeway, Suite 900, Dallas, TX 75240 (sofern der entsprechende Auftrag von Pegasus Business Intelligence unterzeichnet wurde , LP d/b/a Onyx CenterSource) oder an P.O. Box 529, Rambergveien 1, Tonsberg, N-3101, Norwegen (falls der entsprechende Auftrag von Onyx CenterSource AS unterzeichnet wurde) gesendet werden. Alle anderen Mitteilungen des Kunden können per E-Mail an tasupport@onyxcentersource.com gesendet werden. Onyx kann den Kunden hierüber schriftlich oder per E-Mail unter Verwendung der in dem jeweiligen Auftrag angegebenen Kontaktinformationen benachrichtigen. Der Kunde ist dafür verantwortlich, dass diese Kontaktinformationen auf dem neuesten Stand sind. Er kann seine Kontaktinformationen aktualisieren, indem er Onyx schriftlich über solche Aktualisierungen informiert.
10.2. Änderungen Onyx kann diese Bedingungen von Zeit zu Zeit aktualisieren oder überarbeiten. Onyx wird die jeweils aktuelle Version dieser Bedingungen auf ihrer Website zur Verfügung stellen. Durch die weitere Nutzung der Dienstleistungen nach der Aktualisierung dieser Bedingungen erklärt sich der Kunde einverstanden, an die jeweils aktuell veröffentlichte Version dieser Bedingungen gebunden zu sein.
10.3. Geltendes Recht Je nachdem, welches Onyx-Unternehmen den jeweiligen Auftrag unterzeichnet, (a) unterliegt der Vertrag dem im Folgenden genannten Recht, ungeachtet der Grundsätze des Kollisionsrechts, und (b) werden alle hieraus resultierenden Streitigkeiten in den zuständigen Gerichten der unten angegebenen Gerichtsbarkeit gelöst. Die Parteien stimmen der ausschließlichen Zuständigkeit dieser Gerichte zu und verzichten auf alle anderen zur Verfügung stehenden Verteidigungs- oder Gerichtsorte.
| Onyx-Gesellschaft | Anwendbares Recht | Gerichtsstand |
| Pegasus Business Intelligence, LP d/b/a Onyx CenterSource | Texanisches Recht (USA) | Dallas County, Texas |
| Onyx CenterSource AS | Norwegisches Recht | Oslo, Norway |
10.4. Werbung Onyx kann den Namen und die Adresse des Kunden in allen Angeboten, Anzeigen oder Werbematerialien verwenden, um darauf hinzuweisen, dass der Kunde die Dienstleistungen von Onyx erhält und die Dienstleistungen unterstützt.
10.5. Höhere Gewalt Abgesehen von der Verpflichtung des Kunden zur Zahlung von Gebühren haftet keine der Parteien gegenüber der anderen Partei für die Nichterfüllung ihrer Verpflichtungen, wenn diese Nichterfüllung auf einen Grund zurückzuführen ist, der außerhalb der angemessenen Kontrolle des Nichterfüllenden liegt.
10.6. Kein Verzicht Die Nichtdurchsetzung einer der Bedingungen des Vertrags durch eine der beiden Parteien stellt keinen Verzicht dar. Vorbehaltlich Abschnitt 10.2 dieser Bedingungen ist ein Verzicht oder eine Änderung des Vertrags nicht wirksam oder bindend, wenn sie nicht schriftlich abgefasst und von den ordnungsgemäß bevollmächtigten Vertretern beider Parteien unterzeichnet wurde.
10.7. Salvatorische Klausel Wenn eine Bestimmung hieraus von einem zuständigen Gericht für ungültig oder nicht durchsetzbar erklärt wird, hat die Ungültigkeit keine Auswirkungen auf die Gültigkeit oder Umsetzung einer anderen Bestimmung, und die unwirksame Bestimmung gilt als von der Vereinbarung abgetrennt.
10.8. Rechtsnachfolger; Abtretung Die Vereinbarung ist für die Parteien und deren rechtmäßige Erben, Verwalter, Rechtsnachfolger und Abtretende bindend und wird zu ihren Gunsten in Kraft treten. Der Vertrag darf vom Kunden nur mit vorheriger schriftlicher Zustimmung von Onyx abgetreten, übereignet oder anderweitig übertragen werden. Jede versuchte Abtretung, die gegen diesen Abschnitt verstößt, ist nichtig.
10.9. Unabhängige Vertragspartner Die Parteien sind unabhängige Vertragspartner. Nichts hierin wird so ausgelegt, dass eine Partnerschaft, ein Joint Venture oder eine ähnliche Vereinbarung zwischen Onyx und dem Kunden entsteht. Keine Partei gilt als Stellvertreter, Angestellter oder Bevollmächtigter der anderen.
10.10. Steuern „Steuern“ bezeichnet alle Verkaufs-, Nutzungs-, Mehrwertsteuer, GST, MVA, HST und andere Ertrags-, direkte und indirekte Steuern, die im Zusammenhang mit diesem Vertrag, den Gebühren oder den im Rahmen dieses Vertrages verarbeiteten Provisionen jeder der beiden Parteien auferlegt werden können. Alle hierunter zu entrichtenden Gebühren verstehen sich exklusive Steuern, mit Ausnahme solcher, die auf dem Reinertrag oder der Gehaltsliste von Onyx basieren. Darüber hinaus ist der Kunde allein verantwortlich für die Berechnung, Meldung und Zahlung der Steuern an die jeweilige Steuerbehörde, die auf die Dienstleistungen oder die an den Kunden ausgeschütteten Provisionen erhoben werden.
10.11. Gesamte Vereinbarung Der Vertrag stellt die gesamte Vereinbarung zwischen den Parteien in Bezug auf den Vertragsgegenstand dar und ersetzt in Bezug auf den Vertragsgegenstand alle vorherigen und gleichzeitigen Vereinbarungen, Absprachen, Verhandlungen und Diskussionen, ob mündlich oder schriftlich.
10.12. Sprache Diese Vereinbarung ist nur in englischer Sprache verfügbar, die in jeder Hinsicht die maßgebliche Sprache in Bezug auf diesen Vertrag ist. Jegliche Übersetzung dieser Bedingungen oder dieser Vereinbarung in eine andere Sprache dient nur der Orientierung. Eine solche Übersetzung ist für keine der Parteien bindend.
DATENVERARBEITUNGSZUSATZ
Effective May 9, 2019
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DATENVERARBEITUNGSZUSATZ
This Data Processing Addendum is in the English language only, which will be the controlling language with respect to this Agreement in all respects. Any translation of this Data Processing Addendum into another language is for convenience only, and no such translation will be binding against the parties hereto.
Diese Datenschutzvereinbarung ist nur in englischer Sprache verfügbar, die in jeder Hinsicht die maßgebliche Sprache in Bezug auf diesen Vertrag sein wird. Jegliche Übersetzung dieser Datenschutzerklärung in eine andere Sprache dient nur der Orientierung. Eine solche Übersetzung ist für keine der Parteien bindend.
Dieser Datenverarbeitungszusatz (dieser „DVZ“) ist eine bindende rechtliche Vereinbarung zwischen Pegasus Business Intelligence, LP d/b/a/ Onyx CenterSource [Das Unternehmen der Onyx Group aufnehmen, das den Vertrag mit dem Kunden unterzeichnet] (zusammen mit ihren verbundenen Unternehmen und/oder anderen Unternehmen der Onyx-Gruppe, „Onyx“) und dem Kunden („Kunde“), der einem Auftrag, den Geschäftsbedingungen (einschließlich den Online-Geschäftsbedingungen von Onyx für seine Hotel- und Agenturkunden) oder anderen Vereinbarung zustimmt, die sich auf diesen Datenverarbeitungszusatz beziehen (der „Vertrag“).
Die Datenschutzrichtlinie von Onyx finden Sie unter https://www.onyxcentersource.com/privacy-policy/. Dieser DVZ regelt die Verarbeitung personenbezogener Daten durch Onyx in Bezug auf betroffene Personen innerhalb des EWR oder eines anderen Rechtsraums, in dem die für Onyx geltenden Datenschutzgesetze Anwendung finden; dieser DVZ hat im Falle eines Konflikts mit der Datenschutzrichtlinie von Onyx Vorrang.
1. Begriffsbestimmungen
„EWR“ bezeichnet den Europäischen Wirtschaftsraum.
„Datenschutzgesetze” bezeichnet alle anwendbaren Gesetze zum Datenschutz, einschließlich (soweit anwendbar und uneingeschränkt) der DSGVO.
„DSGVO” bezeichnet die EU-Datenschutz-Grundverordnung 2016/679 zum Schutz natürlicher Personen bei der Verarbeitung personenbezogener Daten und zum freien Datenverkehr.
„Personenbezogene Daten” sind alle Informationen, die der Kunde Onyx zur Verfügung stellt und die (i) allein oder in Verbindung mit anderen Informationen zur Identifizierung einer Person verwendet werden können, oder (ii) anderweitig anderen Datenschutzgesetzen unterliegen.
2. Zweck Der Kunde hat Onyx mit der Bereitstellung bestimmter Dienstleistungen gemäß der Beschreibung und Vereinbarung im Vertrag beauftragt. Onyx erfordert den Zugriff auf bestimmte personenbezogene Daten im Auftrag des Kunden, um seinen Verpflichtungen nachkommen und die im Rahmen des Vertrags vereinbarten Dienstleistungen erbringen zu können.
3. Rollen Der Kunde ist die juristische Person, die rechtlich dafür verantwortlich ist, die Zwecke und Mittel der Verarbeitung der personenbezogenen Daten zu bestimmen. Der Kunde ist der „Datenverantwortliche“ und Onyx der „Datenverarbeiter“, in dem Sinne, in dem diese Begriffe in den anwendbaren Datenschutzgesetzen verwendet werden. Der Kunde sichert zu und garantiert, dass er alle erforderlichen Einwilligungen und Genehmigungen erhalten hat, die gemäß den Datenschutzgesetzen erforderlich sind, und dass er anderweitig uneingeschränkt berechtigt ist, alle personenbezogene Daten zu Zwecken der vertragsgemäßen Verarbeitung an Onyx zu übermitteln. Jede Partei wird alle anwendbaren Datenschutzgesetze einhalten.
4. Übermittlung aus dem EWR in Drittländer außerhalb des EWR und in die USA Onyx hat eine Selbstzertifizierung gemäß dem EU-US Privacy Shield Framework (EU-US-Datenschutzschild) vorgenommen, der vom US-Handelsministerium in Bezug auf die Erhebung, Verwendung und Aufbewahrung personenbezogener Daten, die vom EWR in die USA übermittelt werden, festgelegt wurde. Onyx wird personenbezogene Daten nur dann an Dritte außerhalb des EWR und in den USA übermitteln, wenn der Kunde sich zuvor damit einverstanden erklärt hat und/oder wenn diese Unternehmen die Standard-Datenschutzklauseln der Europäischen Kommission zur Datenübermittlung an Drittländer gemäß Artikel 46 Absatz 2 der DSGVO übernommen haben und/oder wo die Europäische Kommission entschieden hat, dass das Drittland ein angemessenes Schutzniveau gewährleistet, beispielsweise durch die Zertifizierung gemäß dem EU-US-Datenschutzschild.
5. Geltungsbereich und Anweisungen Onyx verarbeitet die personenbezogenen Daten nur gemäß den dokumentierten Anweisungen des Kunden. Die Parteien erklären sich damit einverstanden und erkennen an, dass der Vertrag Anweisungen des Kunden hinsichtlich Gegenstand, Art der personenbezogenen Daten und Dauer der von Onyx gemäß diesem Vertrag erfolgten Verarbeitung enthält. Soweit gesetzlich zulässig, wird Onyx den Kunden unverzüglich über alle gesetzlichen Anforderungen informieren, gemäß denen Onyx die personenbezogenen Daten auf andere Weise als gemäß den dokumentierten Anweisungen des Kunden verarbeiten muss, oder wenn Onyx der Ansicht ist, dass die Anweisungen des Kunden gegen Datenschutzgesetze verstoßen.
6. Sicherheit Onyx wird geeignete technische und organisatorische Maßnahmen in Bezug auf die Verarbeitung personenbezogener Daten ergreifen und aufrechterhalten, so dass die Verarbeitung den Anforderungen der Datenschutzgesetze entspricht. Für die Zwecke dieses Abschnitts bedeutet „angemessen“ wirtschaftlich angemessen, basierend auf einer Bewertung der Risiken, die durch die Verarbeitung insbesondere durch zufällige oder rechtswidrige Zerstörung, Verlust, Veränderung, unerlaubte Offenlegung oder Zugriff auf die personenbezogenen Daten entstehen, die übertragen, gespeichert oder anderweitig verarbeitet werden.
7. Unterauftragsverarbeiter Onyx darf einen Unterauftragsverarbeiter ohne vorherige schriftliche Einwilligung des Kunden nicht mit der Durchführung spezifischer Verarbeitungstätigkeiten in Bezug auf die personenbezogenen Daten beauftragen. Wenn der Kunde seine Einwilligung erteilt, bestellt Onyx den Unterauftragsverarbeiter in einem bindenden schriftlichen Vertrag, in dem ihm dieselben Datenschutzverpflichtungen auferlegt werden, wie sie in diesem DVZ enthalten sind. Der Kunde ermächtigt Onyx hiermit ausdrücklich, Unterauftragsverarbeiter für die Bereitstellung von technischen Dienstleistungen und die Wartung von Systemen (unter anderem Datenhosting) zu beauftragen, die die Erbringung der Dienstleistungen durch Onyx im Allgemeinen für seinen gesamten Kundenstamm (einschließlich, aber nicht speziell für den Kunden) erleichtern. Onyx wird den Kunden über die rechtlichen Hinweise im Onyx-Netzwerk über jede Änderung seiner Unterauftragsverarbeiter informieren und dem Kunden die Möglichkeit geben, den Änderungen zu widersprechen. Onyx unternimmt wirtschaftlich angemessene Anstrengungen, um solche Einwände zu beheben, aber die Parteien vereinbaren und erkennen an, dass Onyx möglicherweise nicht in der Lage ist, Anfragen eines einzelnen Kunden zu entsprechen, die die einheitliche Erbringung der Dienstleistungen von Onyx für seinen gesamten Kundenstamm betreffen.
8. Personal Onyx stellt sicher, dass seine Mitarbeiter, die personenbezogene Daten verarbeiten, Vereinbarungen unterzeichnet haben, in denen sie dazu verpflichtet werden, personenbezogene Daten vertraulich zu behandeln, oder dass sie einer angemessenen gesetzlichen Geheimhaltungspflicht unterliegen. Onyx stellt sicher, dass seine Mitarbeiter, die personenbezogene Daten verarbeiten, im Schutz personenbezogener Daten geschult wurden.
9. Hilfestellung Unter Berücksichtigung der Art der Verarbeitung im Rahmen des Vertrags wird Onyx geeignete technische und organisatorische Maßnahmen ergreifen und aufrechterhalten, um den Kunden soweit wie möglich bei der Erfüllung seiner Verpflichtungen zu unterstützen, Anfragen betroffener Personen, die ihre Rechte gemäß Datenschutzgesetzen ausüben, zu beantworten. Onyx stellt sicher, dass alle Anfragen der betroffenen Personen erfasst und an den Kunden weitergeleitet werden. Onyx stellt den Kunden angemessene Unterstützung, Informationen und Mitarbeit zur Verfügung, um die Einhaltung der datenschutzrechtlichen Verpflichtungen des Kunden zu erleichtern. Der Kunde wird Onyx auf Verlangen die Zeit und Kosten, die Onyx für diese Art der Unterstützung des Kunden aufgewendet hat, zu angemessenen Preisen erstatten, wenn diese Anfragen sich als unbegründet oder exzessiv erweisen, insbesondere wenn dies wiederholt der Fall ist.
10. Aufzeichnungen Onyx führt vollständige, genaue und aktuelle schriftliche Aufzeichnungen, die alle gemäß den Datenschutzgesetzen geforderten Informationen enthalten („Verarbeitungsprotokolle“), über alle Kategorien von Verarbeitungstätigkeiten, die im Auftrag des Kunden ausgeführt werden, und stellt dem Kunden auf Verlangen rechtzeitig die Informationen zur Verfügung (einschließlich der Verarbeitungsprotokolle), die vom Kunden billigerweise verlangt werden, um nachzuweisen, dass Onyx seinen Verpflichtungen gemäß den Datenschutzgesetzen und dieser DVZ nachkommt.
11. Audits Onyx gestattet nach rechtzeitiger vorheriger Information seitens des Kunden Audits und/oder Inspektionen durch den Kunden oder einen vom Kunden beauftragten Prüfer, um den Nachweis zu erbringen, dass Onyx seinen Verpflichtungen aus den Datenschutzgesetzen und diesem DVZ nachkommt; dabei muss sichergestellt sein, dass der Prüfer bindenden Geheimhaltungspflichten unterliegt und dass dieses Audit oder diese Inspektion auf alleinige Kosten des Kunden und in einer Weise durchgeführt wird, durch die das Geschäft von Onyx und anderen Kunden so wenig wie möglich gestört wird. Eine solche Prüfung darf nur einmal in zwölf Monaten durchgeführt werden, sofern die Datenschutzgesetze nichts anderes vorschreiben.
12. Benachrichtigung Im Falle einer Verletzung der Sicherheit, die zu versehentlicher oder rechtswidrigen Zerstörung, Verlust, Änderung, unberechtigten Offenlegung oder Zugriff der/auf die personenbezogenen Daten führt, die von Onyx im Rahmen des Vertrags verarbeitet werden, wird Onyx den Kunden unverzüglich über den Verstoß informieren und dem Kunden auf billiges Verlangen des Kunden ohne unangemessene Verzögerung alle verfügbaren Informationen über die Verletzung zur Verfügung stellen.
13. Zerstörung Onyx wird nach dem Abschluss der Erbringung der betreffenden Dienstleistungen im Rahmen der Verarbeitung und auf schriftliche Anfrage des Kunden alle personenbezogenen Daten in Papierform oder in elektronischer Form unverzüglich sicher löschen oder an den Kunden zurückgeben, wenn die Verarbeitung nicht mehr erforderlich ist, und verpflichtet sich, bestehende Kopien sicher zu löschen (es sei denn, die Speicherung von Daten ist gesetzlich vorgeschrieben; in diesem Fall wird Onyx den Kunden entsprechend benachrichtigen).
14. Sprache Diese Datenschutzvereinbarung ist nur in englischer Sprache verfügbar, die in jeder Hinsicht die maßgebliche Sprache in Bezug auf diesen Vertrag sein wird. Jegliche Übersetzung dieser Datenschutzerklärung in eine andere Sprache dient nur der Orientierung. Eine solche Übersetzung ist für keine der Parteien bindend.