Version: 20 May 2025

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1. Agreement

1.1 Parties: The Agreement is between Serko Limited and/or Serko Affiliates (‘Serko’), and the person identified as the Customer, on the Order (‘Customer’). Serko and Customer may be individually referred to as a “party” or together as “parties”.

1.2 Term: The Agreement comes into force on the Commencement Date and expires at the end of the term, as outlined in the applicable Order(s) for the Licensed Products and/or Services, unless terminated earlier in accordance with clause 14 (Termination) (‘Term’).

1.3 Orders: Orders are legally binding upon the parties’ execution of the relevant Order. Orders entered by the parties subsequent to the initial Order will be considered to form part of the same Agreement.

1.4 Product Terms: The Product Terms attached to the first Order for the relevant Licensed Product establish the Product Terms for all subsequent Orders for the same Licensed Product, unless new License Product Terms are attached.

2. Parties’ obligations

2.1 Service obligations: Serko will carry out the Services in accordance with the Agreement and Good Industry Practice.

2.2 Availability of Licensed Products: Serko does not warrant that the Licensed Product will always be available nor does Serko warrant that the Licensed Product will operate without error.

2.3 No other warranties: EXCEPT AS SETOUT IN THE AGREEMENT, SERKO GIVES NO WARRANTIES AND MAKES NO REPRESENTATIONS (INCLUDING ANY STATUTORY WARRANTIES OTHER THAN THOSE WHICH SERKO IS NOT PERMITTED TO EXCLUDE UNDER APPLICABLE LAW, AND ANY OTHER WARRANTIES THAT MIGHT BE IMPLIED) IN CONNECTION WITH THE SERVICES, THE LICENSED PRODUCT AND/OR THE USE OF THE LICENSED PRODUCT.

2.4 Customer’s obligations: Customer will promptly provide Serko with: (a) all necessary co-operation in relation to the Agreement; and (b) all information, data, and assistance as may be reasonably required by Serko to provide the Services and Licensed Products.

3. Acceptance tests

3.1 Notice of Acceptance Tests: Serko will notify Customer that the Licensed Product is available for the Acceptance Tests (‘Completion Notice’), in which case Customer will commence Acceptance Tests within 10 Business Days (or as otherwise agreed between the parties) after the date of the Completion Notice, such Acceptance Tests to be completed as soon as practicable and within 20 Business Days of the Completion Notice.

3.2 Purpose of the Acceptance Tests: The purpose of the Acceptance Tests is to determine whether the Licensed Product meets the following criteria (‘Acceptance Criteria’): (a) that (as demonstrated by Serko, acting reasonably) the Implementation Services have been successfully completed, and the Licensed Product functions in all material respects (without regard to minor bugs or errors which do not have a material impact on the functionality available through the Licensed Product); and (b) that the Licensed Product is otherwise ready for live production use.

3.3 Acceptance: Acceptance will be deemed to occur if: (a) the Acceptance Criteria are met; (b) the Licensed Product is used in a live production environment; or (c) Customer fails to commence the Acceptance Tests when required under this Clause 3 (Acceptance Tests).

4. Use of licensed product

4.1 Permitted uses: Customer must only use the Licensed Product in the Territory specified in the Order and for the purposes set out in the relevant Product Terms (‘Permitted Uses’).

4.2 Restrictions on use: Customer must not, and must ensure that Authorised Users do not: (a)  reverse engineer, disassemble, modify, decompile, decode, translate, or make any derivative works from the Licensed Product (or any components of the Licensed Product), or attempt to do so; (b) attempt to learn the source code, structure, algorithms, or internal ideas underlying the Licensed Product or reduce the Licensed Product by any other means to a human-perceivable form; (c) use the Licensed Product to store or transmit any viruses, software routines, or other code designed to permit unauthorised access, to disable, erase, or otherwise harm software, hardware, or data, or to perform any other harmful actions; (d) gain access to the Licensed Product or any of its functionality (including any data or other information made available through the Licensed Product) which Customer does not have authority to access, or attempt to do so; (e) licence, sublicense, resell, distribute or otherwise provide access to the Licensed Product to any person other than in accordance with the Agreement; (f) copy, frame, mirror, alter, modify, transmit or reproduce the Licensed Product or any of its functionality, or attempt to do; (g) use the Licensed Product in a way that: (i) breaches, or causes Serko to breach, Applicable Law; or (ii) infringes any person’s IPR; (h) upload or allow any person to upload any information to the Licensed Product which is obscene, objectionable, pornographic, threatening, abusive, offensive, hateful, harmful or defamatory; or (i) remove, alter, or obscure the Serko Brand, or any proprietary or copyright notices which Serko has configured the Licensed Product to display.

4.3 User actions: Customer will be liable for all actions by Authorised Users on or in respect of the Licensed Product.

4.4 Protection of login details: Customer must keep and must ensure that each Authorised User keeps secure and confidential, the login details for the Licensed Product. Customer will immediately notify Serko of any unauthorised use of login details for the Licensed Product.

4.5 Revocation or suspension: Serko may revoke or suspend an Authorised User’s account, without notice and without incurring liability to Customer, where Serko considers that: (a) the account is being misused or has been compromised; or (b) to do so is desirable to protect the security and integrity of the Licensed Product. Serko will use reasonable endeavours to give Customer prior notice of any suspension or revocation of an account.

4.6 Unlawful Acts: Serko may suspend or block access to the Licensed Product (including Customisations), or refuse to perform any obligation under the Agreement, without incurring any liability to Customer, if Serko suspects that: (a) an action Serko is required or requested to take under the Agreement or in connection with the Licensed Product or any Services; or (b) Serko’s performance of any service or activity for the benefit of any person under or in connection with the Agreement or the Licensed Product, might in any way result in an Unlawful Act. Serko will use reasonable endeavours to give Customer prior notice of any suspension or block and the reasons for it.

5. Customer affiliates

5.1 Customer Affiliates: A Customer Affiliate (if any) may use the Licensed Product in the Territory in accordance with the Agreement on the basis that: (a) Customer must ensure that Customer Affiliates comply with the terms of the Agreement as if it were the Customer, and that Customer will be liable for the acts and omissions of a Customer Affiliate in connection with the use of the Licensed Product and/or a breach of the Agreement by Customer Affiliate; (b) Customer will be liable, for all Fees incurred in connection with the use by a Customer Affiliate of the Licensed Product; (c) Serko may act and rely on any instructions or consent given by or on behalf of Customer Affiliate as if it were the Customer and vice versa, Customer warranting on behalf of Customer Affiliate that itself and Customer Affiliate is each duly authorised to bind the other; and (d) Serko may share Customer Personal Data with each Customer Affiliate and/or allow a Customer Affiliate to access Customer Personal Data.

6. Updates and new releases

6.1 Updates and New Releases to be made available: Serko may make Updates to the Licensed Product or deploy a New Release of the Licensed Product to ensure that the Licensed Product is up-to-date and otherwise able to securely integrate with Customer’s systems and Third Party Features.

6.2 Notice: Serko will use reasonable endeavours to make available information regarding Updates and New Releases on the Zeno Support Centre.  

6.3 Compliance with instructions: Customer must comply with all of Serko’s reasonable instructions to comply with the technical specifications as provided on the Zeno Support Centre.

6.4 Support: Serko: (a) will only provide Support Services (if any) in respect of the current version of the Licensed Product; and (b) will not be liable to Customer in respect of any errors, defects or other performance issues that would not have occurred had Customer complied with the technical specifications for the relevant Licensed Product.

7. Features, functionality and customisations

7.1 Removal of functionality: Serko: (a) may discontinue any functionality or component of the Licensed Product at any time in its sole discretion; and (b) will use reasonable endeavours to give Customer at least 30 days’ prior notice of the discontinuation of any material functionality or component of the Licensed Product (except where Serko considers such discontinuation is necessary to mitigate a security risk).

7.2 Termination Right: Should Serko discontinue any functionality or component that materially adversely affects Customer’s overall use of the Licensed Product, based on customary use of the Licensed Product in the relevant Territory, Customer may terminate the Agreement upon written notice to Serko, so long as such notice is received within 10 Business Days of the date of discontinuation of such functionality or component. Termination under this clause is Customer’s sole remedy under the Agreement for the discontinuation of any functionality or component.

7.3 Third Party Features: Customer acknowledges that any failure to comply with terms and conditions imposed by a Third Party Supplier in respect of a Third Party Feature may result in the suspension or termination of the Third Party Feature, cancellation of reservations or purchases, denial of access to any flights, hotels, vehicles or other travel services and/or forfeiture of any amount paid for such goods and/or services.

7.4 Customisations: (a) Customer is responsible for its Customisations and will release Serko from all liability in relation to such Customisations. (b) Customer will ensure that all Customisations comply with Applicable Law and do not cause Serko to breach Applicable Law. (c) Serko may suspend or block access to the Licensed Product without incurring liability to Customer, if Serko suspects that a Customisation breaches Applicable Law and/or causes Serko to breach Applicable Law. (d) Customer must indemnify Serko on demand for all Losses incurred by Serko in respect of any Claim against Serko arising out of or in connection with a Customisation.

7.5 Custom Services: Any Custom Services provided hereunder are subject to Customer’s performance of its obligations herein, and in accordance with any terms agreed in a Custom Work Order. Customer shall provide all necessary information, access, workspace, computing resources, and other services and support materials as reasonably required by Serko to perform its duties in a timely manner. Serko shall at all times own all New IPR arising from or related to any such Custom Services. Unless otherwise specified in a Custom Work Order, all Custom Services are provided on a time and material basis per person, and charged hourly or daily as indicated for each person.

8. Fees, invoicing and payment

8.1 Invoices: Unless otherwise agreed in writing, Serko will invoice Customer for the Fees monthly in arrears. Serko will issue invoices in, and the Customer must pay the Fees in, the Billing Currency. Customer must pay each invoice issued by Serko no later than 30 days after the date of invoice.

8.2 Sales Tax: All Fees are stated exclusive of Sales Tax, which if applicable, will be payable by Customer at the rate applicable at the time of supply.

8.3 Fee increases: Serko may, by notice to Customer, increase the Fees on an annual basis from 1 July each year by the percentage change(s) in the applicable CPI Adjustment for the twelve months preceding such increase (on each occasion).

8.4 Withholdings: If Customer is required by Applicable Law to make any deduction or withholding from any payment, the amount payable by Customer will be increased to an amount which (after making any deduction or withholding) leaves Serko with the amount Serko would have received had no such deduction or withholding been required.

8.5 No set off: Without limiting clause 8.4 (Withholdings), all amounts payable by Customer must be made in full, without set off, counter claim, withholding or deduction.

8.6 Failure to pay: If Customer does not pay the full amount of an invoice when due, Serko may charge late payment interest at a rate of 7% from the date the amount falls due for payment to the date Customer pays the outstanding amount in full. Serko may also recover from Customer all costs of recovery incurred in connection with the late payment.

8.7 Disputes: If Customer wishes to dispute an invoice, it must do so in good faith and in writing within 30 days of the invoice date together with reasonable evidence to verify the dispute. If the parties do not resolve the matter within 30 days of the date of the dispute notice, the dispute will be resolved in accordance with clause 18 (Dispute resolution).    

9. Liability

9.1 Indemnity from Customer: Customer must indemnify Serko on demand for all Losses incurred by Serko in connection with any Affiliate Claim.

9.2 Mutual Indemnity: Each party (‘Indemnifying Party’) shall indemnify the other party (‘Indemnified Party’) against all Losses incurred by the Indemnified Party arising out of any third-party Claim that the possession or use of any Indemnifying Party IPR by the Indemnified Party pursuant to this Agreement infringes the IPR of such third party.

9.3 Conduct of claims: If any person makes a Claim or notifies an intention to make a Claim against a party (‘Indemnified Party’) which may reasonably be considered likely to give rise to the other party’s (‘Indemnifying Party’) obligation to indemnify the Indemnified Party under clause 9.1 (Indemnity from Customer) or clause 9.2 (Mutual Indemnity) (‘Indemnified Claim’): (a) the Indemnified Party must: (i) notify the Indemnifying Party of the Indemnified Claim as soon as reasonably practicable; (ii) not make any admission of liability, agreement, or compromise in relation to the Indemnified Claim without the prior approval of the Indemnifying Party; (iii) take all reasonable steps to assist the Indemnifying Party in respect of the Indemnified Claim, including providing at its own expense all information and assistance reasonably required by the Indemnifying Party; and (iv) use reasonable endeavours to mitigate the Losses to which the obligation to indemnify the Indemnified Party relates; and (b) the Indemnifying Party may take over the defence or settlement of the Indemnified Claim at its sole discretion and cost, save that the Indemnified Party may direct the Indemnifying Party to the extent reasonably necessary to protect the reputation or interests of the Indemnified Party.

9.4 Exclusion of liability: Subject to clause 9.7 (Exclusions and limitations not to apply) in no event shall either party be liable for any special, exemplary, punitive, incidental, indirect or other consequential damages of any kind, lost profits, lost revenue, or lost savings, whether based in contract, negligence, tort or otherwise, which arise out of or are in any way connected with this Agreement.

9.5 Limitation of liability: Subject to clause 9.7 (Exclusions and limitations not to apply), the aggregate liability of Serko due to, under and/or arising out of or in connection with the Agreement in contract, tort (including negligence), breach of statutory duty or otherwise, will not exceed in aggregate an amount equal to the Fees actually paid to Serko in the 12 month period prior to the date on which the event giving rise to Serko’s liability occurs.

9.6 Third Party Suppliers: Despite any other provision in the Agreement, Serko will not be liable to Customer for any Loss (direct or indirect) due to, under and/or arising out of or in connection with: (a) any failure of a Third Party Feature; and/or (b) the acts and/or omissions of, and/or information provided by, a Third Party Supplier.

9.7 Exclusions and limitations not to apply: The limitations and exclusions set out in clauses 9.4 (Exclusion of liability) and 9.5 (Limitation of liability) do not apply to: (i) other parties’ obligations to indemnify each other; (ii) Customer’s failure to pay amounts owed to Serko under this Agreement; (iii) a party’s liability for death or personal injury; (iv) a party’s liability for wilful misconduct fraud or fraudulent misrepresentation; or (v) any matter for which it would be illegal to exclude or attempt to exclude a party’s liability.

10. Intellectual property rights

10.1 Ownership of IPR: As between the parties all right, title and interest in the Serko IPR will remain in the ownership of, or will vest in (upon its creation), Serko (or its licensors) and Customer (or its licensors) will own all Customer IPR. All right, title and interest in any New IPR will vest in Serko upon its creation.

10.2 Licence by Serko: Serko hereby grants to Customer a non-exclusive, non-transferable and non-sublicensable licence of the Licensed Product IPR, for the Term, solely to the extent necessary to enable Customer to use the Licensed Product in the Territory for the Permitted Uses and receive the Services.

10.3 Licence by Customer: Customer hereby grants to Serko a non-exclusive, royalty-free licence of the Customer IPR to the extent necessary or desirable to enable Serko to: (a) carry out the Services; (b) make the Licensed Product available to Customer; and (c) disclose the identity of Customer as a user of the Licensed Product and/or customer of the Services in Serko’s advertising and publicity.

10.4 Permitted Sub-licences: Serko may grant sub-licences under the licence contemplated by clause 10.3 (Licence by Customer) to Subcontractors and Third Party Suppliers (‘Permitted Sub-Licensees’), under which Permitted Sub-Licensees may use the Customer IPR to implement the Licensed Product (including by making any Third Party Features available through the Licensed Product).

10.5 Further assurances: If any right, title, or interest in any IPR is acquired by or otherwise vests in a party contrary to the intention set out in clause 10.1 (Ownership of IPR), that party: (a) hereby assigns to the other party (or agrees to assign, where not capable of a present assignment of future rights) all of its right, title, and interest in any and all of that IPR; and (b) will upon the reasonable request of the other party execute any documents and do or procure any acts which may reasonably be required to give effect to such assignment.

10.6 Limited warranty: So far as Serko is aware at the Commencement Date, Customer’s use of the Licensed Product in accordance with the Agreement will not infringe the IPR of any person.

10.7 Serko Brand: Serko may configure the Licensed Product to display the Serko Brand, in such form as Serko determines.

10.8 Modification of the Licensed Product: If Serko becomes aware of, or reasonably considers that Serko and/or the Customer may become the subject of, a Third Party IP Claim, Serko may: (a) obtain such rights as Serko reasonably considers necessary to ensure that Customer may continue to use the Licensed Product without infringing that person’s IPR; and/or (b) replace or modify the Licensed Product (or any of its functionality) so as to not substantially compromise the primary functionality of the Licensed Product.

10.9 Termination by Customer: If a Third Party IP Claim is made against Customer: (a) Customer must promptly notify Serko of the Third Party IP Claim (‘Third Party IP Claim Notice’); and (b) if Serko does not exercise its rights under clause 10.8 above (Modification of the Licensed Product) within a reasonable period after Serko’s receipt of the Third Party IP Claim Notice, Customer may terminate the Order(s) for the relevant Licensed Product that the Third Party IP Claim relates to by giving notice to Serko.

11. Customer data, data processing and privacy

11.1 Serko’s use of Customer Data: Serko may use (including by retaining copies of) all Customer Personal Data: (a) for the purposes of providing the Services and the Licensed Product and all of its functionality; (b) for the purposes of undertaking maintenance, support, upgrades and revisions of the Licensed Product and its functionality, and detecting, investigating and protecting against security incidents and fraudulent, malicious and illegal activity; (c) to produce aggregated and anonymised data, analytics, statistics, and reports regarding the use of the Licensed Product, including to understand how it is being used and performing, for maintenance and quality assurance purposes, and to improve and develop new services; (d) to exercise its rights and comply with its obligations under this Agreement; and (e) where permitted, to do so in accordance with Applicable Laws.

11.2 Serko’s compliance with Data Protection Laws: When carrying out the Services and/or otherwise processing any Customer Personal Data on behalf of Customer, Serko will comply with all obligations imposed on Serko under Data Protection Laws.

11.3 Technical and organisational measures: Serko will implement appropriate technical and organisational measures to protect Customer Personal Data against Information Security Incidents, in each case which ensure a level of security appropriate to the risk (‘Technical Measures’).

11.4 Sharing of Customer Personal Data with Third Parties: Where Customer uses or otherwise requests that a third party service or content is made available by a third party (’Third-Party Service’), and Customer instructs or requires Serko to share, transfer or allow access to Customer Personal Data with the Third-Party Service in order for the Third-Party Service to provide services or content to Customer, Customer agrees that: (a) Serko may share Customer Personal Data with the Third-Party Service and/or allow the Third-Party Service access to Customer Personal Data; (b) the Third-Party Service will not be deemed to be a Serko Subcontractor or processing Customer Personal Data on Serko’s behalf for any purpose or under Data Protection Laws because Serko is not engaging the Third-Party Service as a Subcontractor; (c) Customer releases Serko from any and all liability in relation to Customer Personal Data that is shared with the Third-Party Service; and (d) Customer is solely responsible for determining whether Data Protection Laws require Customer to have a data processing agreement with the Third-Party Service and for putting such agreement in place (if required).

11.5 Information Security Incident: If an Information Security Incident occurs: (a) Serko will notify Customer as soon as reasonably practicable after becoming aware of the Information Security Incident; (b) Serko will promptly take reasonable steps to identify and contain the Information Security Incident; (c) each party will co-ordinate with the other party to investigate the Information Security Incident and provide all reasonable cooperation; (d) Customer will upon Serko’s reasonable request provide Serko with a copy of communications with any Regulatory Authority and/or Data Subjects in connection with the Information Security Incident; and (e) Customer will not, and will ensure that Customer Affiliate does not, identify Serko as being involved in the Information Security Incident other than: (i) if required to do so by Data Protection Laws; or (ii) with Serko’s prior approval (which approval may be given or withheld in Serko’s absolute discretion).

11.6 Subject Access Requests: Serko will: (a) notify Customer if Serko receives a request from a Data Subject to exercise any rights under Data Protection Laws (other than a request that can be fulfilled using the functionality of the Licensed Product) (‘Subject Access Request’); and (b) where technically feasible, provide reasonable assistance to Customer in responding to a Subject Access Request, in which case Serko may charge Customer for such assistance (other than to the extent that such assistance is only required by reason of Serko’s breach of Data Protection Laws).

11.7 Customer obligations: Customer must: (a) comply, and ensure that each Customer Affiliate complies, with all Data Protection Laws applicable to Customer’s, and/or that Customer Affiliate’s, collection, use, disclosure and processing of Customer Personal Data; (b) ensure that Customer and each Customer Affiliate has all necessary notices, permissions, and/or consents in place to enable the lawful collection and use of Customer Personal Data by Serko in accordance with this Agreement and otherwise as contemplated by the functionality of the Licensed Product; (c) take reasonable steps, and ensure that each Customer Affiliate takes reasonable steps, to ensure Customer Personal Data is accurate, up to date, complete and relevant; and (d) promptly notify Serko if Customer becomes aware of any breach by Customer or a Customer Affiliate of any Data Protection Laws in connection with Customer Personal Data and/or any complaint, request, or other matter which may adversely affect Serko’s reputation arising from or in connection with Customer’s or a Customer Affiliate’s use of Customer Personal Data (regardless of whether such use complies with Data Protection Laws).

11.8 Privacy disclosures: Customer is solely responsible for determining whether Data Protection Laws require Customer to make privacy statements and disclosures to Authorised Users and it will prepare an appropriate statement (‘Customer Privacy Statement’).

11.9 Inclusion in Licensed Product: If Customer requires the Licensed Product to include a link to a Customer Privacy Statement: (a) Customer must notify Serko no fewer than 60 days prior to the anticipated Go-Live Date and provide Serko with a working link to the Customer Privacy Statement; (b) Serko will, on request from Customer, amend the link from which the Customer Privacy Statement is available no more frequently than once in any 12-month period during the Term; and (c) Serko will not be required to undertake any additional configuration services required to incorporate the Customer Privacy Statement or any other disclosures or statements required by Customer other than in the manner contemplated by this clause 11.9, unless such configuration services are separately agreed in writing between the parties.  

11.10 Data Processing Addendum: If necessary for the purposes of complying with Data Protection Laws, the obligations set out in this clause 11.10 may be supplemented by the parties entering into a Data Processing Addendum which the parties will comply with.

11.11 No disclosure without Data Processing Addendum: Customer must not, and must ensure that each Customer Affiliate does not, disclose to Serko any Customer Personal Data relating to Data Subjects who are in Europe, or who are Californian (USA) residents, until Customer and Serko have entered a Data Processing Addendum

12. Data security

12.1 Development of the Licensed Product: Serko will: (a) design, test and verify each element of the Licensed Product in accordance with Good Industry Practice; (b) test each element of the Licensed Product that is web-based software in accordance with the then-current Open Web Application Security Project (OWASP) Top 10 vulnerabilities for web application security; (c) where the Services are application service provider services, test the processing system, the software, the computer servers and associated hardware and software operated by or on behalf of Serko in order to provide the Services, and the elements of the network (including network infrastructure such as routers, switches and firewalls) which are within Serko’s control, against applicable top 25 common vulnerabilities in accordance with the then-current Common Vulnerability Enumeration dictionary published by The Mitre Corporation; and (d) otherwise scan and test all software for the presence of Disabling Code prior to such software being deployed in a live production environment.

12.2 PCI Standards: Serko will comply with all PCI Standards imposed on Serko’s handling, storage or transmission of Cardholder Data, including by: (a) storing any Cardholder Data that is held by Serko in a secure environment; (b) not storing any Cardholder Data that is ‘Sensitive Authentication Data’ for the purposes of the PCI Standards; and (c) if and when transmitting Cardholder Data, encrypting such Cardholder Data to the standard required by PCI DSS.

12.3 Third Party Suppliers: Serko will ensure that any Third Party Supplier who will handle, store or transmit Cardholder Data in connection with the Licensed Product commits to complying with the PCI Standards with respect to such Cardholder Data.

12.4 Customer-provided Cardholder Data: Where Customer transmits Cardholder Data and/or PCI data directly through the Licensed Product, Customer must: (a) comply with all PCI Standards imposed on Customer in connection with the transmission of such Cardholder Data and PCI data; and (b) supply to Serko, upon request, a copy of Customer’s most  recent: (i) self-assessment questionnaires issued by the PCI SSC to assist merchants and service providers to self-evaluate compliance with the PCI DSS; or (ii) the current version of the ‘Attestation of Compliance’ form provided by the PCI SSC.

12.5 Secure Disposal of Customer Data: Serko will dispose of all Customer Data, using methods which are consistent with Good Industry Practice: (a) in accordance with Serko’s retention policy applicable to the use of the Licensed Product; (b) otherwise, at Customer’s reasonable request during the Term; and (c) within 90 Business Days after the termination of this Agreement, except (in all cases) to the extent that Serko is required by Applicable Law to maintain a copy of that Customer Data.

13. Termination

13.1 Termination for material breach: Either party may terminate the Agreement and/or the relevant Order if the other party commits any material breach of its obligations under the Agreement or Order: (a) in the case of a breach which is capable of remedy, if the other party fails to remedy the breach within 20 Business Days after receiving notice of the breach; and (b) in the case of a breach which is incapable of remedy, immediately by notice to the other party.

13.2 Termination upon Insolvency Event: Either party may terminate the Agreement immediately by notice to the other party if the other party becomes the subject of an Insolvency Event.

13.3 Termination for failure to pay: Without limiting Serko’s rights under clause 14.1 (Suspension of access), if Customer fails to pay any Fees when due, Serko will notify Customer of the overdue Fees in writing specifying the Fees payable and the due date for payment (‘Final Payment Notice’). Should Customer fail to pay the Fees specified in the Final Payment Notice within five Business Days after receipt of the Final Payment Notice, Serko may immediately terminate the Agreement and/or the Order(s) to which the non-payment relates upon notice.

13.4 Effect of termination of the agreement: Upon the termination of the Agreement: (a) all amounts Customer owes Serko under or connection with the Agreement will become immediately due and payable; (b) all Orders will automatically terminate; and (c) Customer will cease to have the right to use the Licensed Product.

13.5 Data retrieval: Upon termination of all Orders for a Licensed Product, Serko will at Customer’s request provide Customer with a copy of the Customer Data that is held on the relevant Licensed Product by Serko in such format as Serko reasonably considers appropriate, provided that Customer: (a) makes such request within 20 Business Days after the date of the earlier of: (i) the termination of all Orders for the relevant Licensed Product; or (ii) termination of the Agreement; and (b) has paid Serko in full all amounts due and payable under clause 13.4 (Effect of termination of the agreement).

13.6 Rights and liabilities to survive: Termination of the Agreement will not affect the rights or liabilities of either party accrued prior to termination or any terms intended expressly or by implication to survive termination, including the parties’ obligations in clause 16 (Confidentiality, marketing and publicity).

14. Suspension

14.1 Suspension of access: Without limiting Serko’s rights under clause 13 (Termination), Serko may suspend a Customer’s and/or Authorised User’s access to the Licensed Product, without incurring any liability to Customer: (a) if Serko reasonably considers it necessary to do so to mitigate security risks in connection with the use of the Licensed Product; (b) if required to do so by any person on whom Serko relies for the provision of the Hosting Services; or (c) if Customer fails to remedy a curable material breach within 20 Business Days after receiving notice of the breach. Where possible, Serko will use reasonable endeavours to give Customer prior notice of any suspension of access to the Licensed Product.

15. Confidentiality, marketing and publicity

15.1 Obligation of confidentiality: Subject to clause 15.3 (Exclusions), each party (‘Recipient’) must: (a) protect the confidentiality of the Confidential Information of the other party (‘Discloser’) with the same degree of care as Recipient uses to protect its own Confidential Information of like kind, but in no event less than reasonable care; and (b) subject to clause 15.2 (Disclosure to Permitted Persons) below, must not disclose to any other person, the Confidential Information of the Discloser.

15.2 Disclosure to Permitted Persons: The Recipient may disclose the Confidential Information to: (a) its legal and professional advisers for the purposes of obtaining advice; (b) its Subcontractors, if such Subcontractors need to know the Confidential Information for the purposes of carrying out the obligations of the Recipient which are subcontracted to them; (c) in the case of Serko, any Serko Affiliate; and (d) in the case of Customer, any Customer Affiliate.

15.3 Exclusions: The obligations under clause 15.1 (Obligation of confidentiality) do not apply to any Confidential Information that: (a) is in the public domain, other than as a result of: (i) a breach by Recipient of clause 15.1 (Obligation of confidentiality); or (ii) a breach of confidence owing to the Discloser by any other person which the Recipient knew or ought to have known was a breach of confidence; (b) is in the possession of the Recipient other than by virtue of disclosure from the Discloser; or (c) must be disclosed by the Recipient under Applicable Law, subject to clause 15.4 (Permitted Disclosures) below.

15.4 Permitted Disclosures: If the Recipient is required to make a disclosure under clause 15.3 (Exclusions), such disclosure may only be made: (a) to the extent necessary; (b) to the proper recipient; and (c) unless prevented by Applicable Law, if the Recipient has used reasonable endeavours to give prior notice to Discloser of the requirement and nature of the information to be disclosed.

15.5 Restrictions on representations and public comment: Customer must not make, and must ensure that Customer Affiliates do not make, any representations or public comment regarding the Licensed Product, including with respect to its functionality, performance or fitness for purpose, without Serko’s prior approval (which approval may be given or withheld in Serko’s absolute discretion).

15.6 Publicity: Nothing in this clause 15.6 (Publicity) will prevent Serko from disclosing the identity of Customer as a customer of the Services and/or Licensed Product in Serko’s advertising and publicity.

15.6 Non-disparagement: Customer must not make any public or private comment or statement (whether written or oral) regarding Serko or its business, brands or affiliates, or the Licensed Product, that might reasonably be construed as being disparaging, denigrating or derogatory.

16. Anti-bribery and corruption

16.1 Representation and warranty: Customer represents and warrants that: (a) none of: (i) Customer, any Customer Affiliate, or any of their Authorised Users; (ii) any person who owns or otherwise controls Customer or any Customer Affiliate; nor (iii) any officer or director of Customer or any Customer Affiliate, is a person with whom any United States law, regulation, or executive order prohibits United States companies and individuals from dealing (including names appearing on the Specially Designated Nationals and Blocked Persons (SDN) List); and (b) it will comply with the Serko Business Partner Code of Conduct, which may be modified from time to time in Serko’s discretion or equivalent policies and procedures of the Customer designed to ensure compliance with the same objectives and applicable laws as the Serko Business Partner Code of Conduct.

16.2 Unlawful Acts: Customer must not, and must ensure that Authorised Users do not use or allow the use of the Licensed Product in a manner that constitutes an Unlawful Act or otherwise cause Serko to commit an Unlawful Act.

16.3 Anti-bribery: Customer must not, and must ensure that Customer Affiliates do not, in connection with the Agreement, the Services or any other business transactions involving Serko, make any payment or transfer anything of value: (a) directly or indirectly to: (i) any government official or employee (including employees of a government corporation or public international organisation); or (ii) any political party or candidate for public office; or (b) which has the purpose or effect of: (i) public or commercial bribery; (ii) acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business; or otherwise obtaining an improper advantage for Customer or Serko; or (c) which otherwise breaches Applicable Law.

17. Force majeure

17.1 No liability: Neither party will be liable to the other party for its inability to perform, or delay in performing, any obligations under the Agreement caused by a Force Majeure Event.

17.2 Notice: If a Force Majeure Event occurs, the party delayed or unable to perform its obligations must: (a) promptly notify the other party of the nature of, and its best estimate as to the likely period of, the Force Majeure Event; and (b) use reasonable endeavours to resume performance of its obligations, to the extent possible, as soon as practicable after the cessation of the Force Majeure Event.

17.3 Payment obligations: Notwithstanding clause 17.1 (No liability), a Force Majeure Event will not relieve a party of its obligations to pay any amount due to the other party under the Agreement (including any obligation to pay the Fees).

18. Dispute resolution

18.1 First-level escalation: If a Dispute arises, either party may by notice to the other party (‘Dispute Notice’) refer the Dispute to the other party with a view to resolving the Dispute by way of good faith negotiations.

18.2 Second-level escalation: If the Dispute cannot be resolved within 20 Business Days after the date of the Dispute Notice, either party may by notice to the other party (‘Escalation Notice’) refer the Dispute to nominated senior executives of the parties to resolve the Dispute by way of good faith negotiations.

18.3 Mediation: If the Dispute cannot be resolved pursuant to clause 18.2 (Second-level escalation) within two months after the date of the Escalation Notice, either party may refer the Dispute to mediation which shall be conducted in terms of the Resolution Standard Mediation Agreement (NZ version). The mediation shall be conducted by a mediator and at a fee to be agreed by the parties. Failing agreement by the parties, the mediator shall be selected by the Chair for the time being of the Resolution Institute.

18.4 Urgent relief: Nothing in this clause 18 will prevent a party from commencing court proceedings for the purposes of seeking urgent injunctive relief.

19. Notices

19.1 How given: Any notice that a party is required to, or may, give to the other party under this Agreement must be given in writing and will be deemed to be validly given if sent by email transmission to that party’s email address specified in the Order, or as subsequently notified to the other party.

19.2 Time of service: Notices delivered by email in accordance with clause 19.1 (How given) above will be deemed to be received at the time of transmission by the sender, unless the sender was put on notice that the transmission was unsuccessful, but if the time and day on which a notice would be deemed to have been received in accordance with the above is not between 9:00am and 5:00pm on a Business Day, then the notice will be deemed to be received on 9:00am on the next Business Day.

20. General

20.1 Definitions and interpretation: Defined terms and rules of interpretation for the Agreement are set out in clause 21 below (Definitions and interpretation).

20.2 Inconsistency: If there is any inconsistency between the documents listed below that form part of the Agreement, the document listed earlier will prevail to the extent of any inconsistency: (a) any amendment agreed in accordance with clause 20.4 (Amendments); (b) the relevant Custom Work Order (if any) (‘CWO’); (c) the initial order and any subsequent orders entered by the Parties, in the form prescribed by Serko and entered into in accordance with clause 1.3 (Orders) (each an ‘Order’); (d) any Data Processing Addendum as contemplated by clause 11.10 (Data Processing Addendum); (e) any product specific terms, including the product fee schedule specified in an Order (‘Product Terms’); and (f) these general terms and conditions set out at clauses 1 to 21 (‘General Terms’) (together the ‘Serko SaaS Agreement’ or the ‘Agreement’).

20.3 Entire Agreement: This Agreement: (a) contains the entire agreement between the parties with respect to its subject matter; (b) sets out the only conduct relied on by the parties; and (c) supersedes all earlier conduct and prior agreements, representations and understandings in connection with its subject matter.

20.4 Amendments: No amendment to the Agreement will be effective unless it is in writing and signed by both parties.

20.5 No rights conferred: Nothing in the Agreement is intended to confer any rights or benefits upon any Customer Affiliate (except as expressly contemplated by clause 5.1 (Customer Affiliates) or any other person who is not a party to the Agreement.

20.6 No partnership or agency, etc.: Nothing in the Agreement or arising out of the relationship established under the Agreement: (a) will constitute either party as the other party’s agent or grant either party any authority to make any commitments on the other party’s behalf; or (b) will create any trust, joint venture or commercial partnership between the parties.

20.7 Waiver: No exercise or failure to exercise or delay in exercising any right or remedy by either party will constitute a waiver by that party of that or any other right or remedy available to it.

20.8 Assignment: Neither party will  assign, charge, encumber, or otherwise deal with any rights and obligations under the Agreement, or attempt or purport to do so, without the other party’s prior approval, not to be unreasonably withheld, save that Serko may at any time by notice to Customer assign any or all of its rights and transfer any or all of its obligations under the Agreement to: (a) any Serko Affiliate; or (b) any person who acquires all or substantially all of Serko’s assets or undertaking, in which case Serko will be released from Serko’s obligations under the Agreement with effect from the date Serko notifies Customer that Serko has transferred its obligations in accordance with this clause 21.8 (Assignment).

20.9 Partial invalidity: If any provision of the Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this Agreement and its application will not be affected and will remain enforceable to the greatest extent permitted by Applicable Law. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify the Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

20.10 Rights cumulative: Each party’s rights under the Agreement are cumulative and are not exclusive of any other rights and remedies available to the party.

20.11 Terms not applicable: The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.

20.12 Governing law and jurisdiction: The Agreement and all disputes relating to or arising under the Agreement and its enforcement is governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.

21. Definitions and interpretation

21.1 Rules of interpretation: In interpreting the Agreement, the following rules must be applied unless the context otherwise requires: (a) Headings: Clause and other headings are for reference only and are not an aid in interpretation. (b) Statutes: References to statutory provisions include references to all regulations, orders, rules or notices made under that statute, and references to a statute or regulation are references to those statutes or regulations as they may be amended or re-enacted or as their application is modified by other provisions from time to time. (c) Person: A reference to a ‘person’ includes a natural person, company, corporation, partnership, firm, joint venture, association of persons (whether corporate or unincorporated), trust, organisation, Government department, Minister of the Crown, state or agency of a state (in each case, whether or not having separate legal personality). (d) Interpretation: Nothing in the Agreement is to be interpreted against Serko solely on the ground that Serko proposed the terms of the Agreement.

21.2 Form of approval: Where the Agreement contemplates that a party’s approval is required, that approval will only be valid where recorded in writing by a person with actual or ostensible authority to act on behalf of that party.

21.3 Definitions: In the Agreement, unless the context otherwise requires:

‘Acceptance’ means the successful completion of the Acceptance Tests in accordance with clause 3 (Acceptance Tests), and ‘Accept’ and ‘Accepted’ have corresponding meanings.

‘Acceptance Criteria’ has the meaning given to it in clause 3.2 (Purpose of the Acceptance Tests).

‘Acceptance Tests’ means the tests to be carried out in accordance with clause 3 (Acceptance Tests).

‘Affiliate Claim’ means any Claim by a Customer Affiliate or Authorised User against Serko in connection with the use of the Licensed Product, the Services or otherwise in connection with the Agreement.

‘Agreement’ has the meaning given to it in clause 20.2 (Inconsistency).

‘Applicable Law’ means any legislation, regulation, code or guidance which applies directly to, and is binding on, a party.

‘Authorised User’ means any person authorised by Customer, or a Customer Affiliate, to use the Licensed Product for the Permitted Uses in the Territory pursuant to, and in accordance with, this Agreement in connection with the Customer’s, or a Customer Affiliate’s, internal business purposes; and/or to access the Licensed Product for the purpose of providing Fulfilment Services.

‘Background IPR’, in respect of a person, means all IPR of that person (or its licensors) in existence prior to the Commencement Date or which is developed independently of this Agreement.

‘Billing Currency’ means the currency specified as the ‘Billing Currency’ in the Order.

‘Business Day’ means a day (other than Saturday or Sunday) on which registered banks are open for business in the usual place of business of Serko, but excludes any day in the period from 24 December in any year to 5 January in the following year (both inclusive).

‘Cardholder Data’ means any data element appearing on a payment card, or in the chip or on the magnetic stripe of a payment card, including full magnetic stripe, security chip or the primary account number, plus: (a) the name of the cardholder; (b) the expiration date; and/or (c) the service code.

‘Claim’ means any proceeding, demand, action or other claim.

‘Commencement Date’ means the date that the first Order is executed by the Customer in accordance with this Agreement.

‘Completion Notice’ has the meaning given to it in clause 3.1 (Notice of Acceptance Tests).

‘Confidential Information’ means: (a) all commercial, financial and/or technical information, trade secrets, products, operations, processes and unpublished information relating to the operations, business, or prospective business of Customer or of a Customer Affiliate, or of Serko (as the case may be); (b) the existence and subject matter of the Agreement (which is the Confidential Information of Serko); (c) any other information imparted to a party by or on behalf of the other party or otherwise obtained by a party under or in connection with this Agreement, the Licensed Product, or the Services and which is of a confidential nature (whether or not expressly designated as imparted in confidence); and (d) the Customer Data (which is the Confidential Information of Customer).

‘CPI Adjustment’ means:

(a) if the Customer is incorporated or established in New Zealand: the New Zealand Consumer Price Index (all groups) as published by Statistics New Zealand (or a similar or equivalent index if that index ceases to be published);

(b) if the Customer is incorporated or established in Australia: the All Groups CPI (Consumer Price Index) for Australia (or a similar or equivalent index if that index ceases to be published); or

(c) if the Customer is incorporated or established in the rest of the world: the Consumer Price Index for Urban Consumers (CPI-U), as reported by the U.S. Department of Labor, Bureau of Labor Statistics (or a similar or equivalent index if that index ceases to be published).

‘Customer Affiliate’ means an affiliate of Customer who is designated as a ‘Customer Affiliate’ in a Order.

‘Customer Brand’ means: (a) any trade marks or service marks used to identify Customer or a Customer Affiliate as set out in or referred to in a CWO or as otherwise contained in materials provided by Customer to Serko; and (b) all associated branding, logos, get-up, styles, unregistered marks, and ‘look and feel’ used by or relating to Customer’s or a Customer Affiliate’s brand.

‘Customer Data’ means: (a) all data inputted or created by Customer, a Customer Affiliate or an Authorised User in the Licensed Product, including Cardholder Data; (b) any other data created or provided by Authorised Users in connection with the use of the Licensed Product; and (c) any other data collected by or on behalf of Customer or a Customer Affiliate, or provided by or on behalf of Customer or a Customer Affiliate, and made available to Serko through the Licensed Product.

‘Customer IPR’ means: (a) all IPR in the Customer Brand; (b) all IPR in the Customer Data; (c) all IPR in any other material provided to Serko by or on behalf of Customer, including IPR in material made available directly from a licensor where Customer has the right to use that IPR under licence from the licensor; and (d) all Background IPR of Customer and each Customer Affiliate.

‘Customer Personal Data’ means Customer Data that is Personal Data processed by Serko under this Agreement on behalf of Customer or a Customer Affiliate.

‘Customer Privacy Statement’ has the meaning set out in clause 11.8 (Privacy disclosures).

‘Custom Work Order’ (CWO) means any custom work order entered into by the parties in relation to the Licensed Product and/or Services.  Not all Customers will enter into a CWO.

‘Custom Services’ means any development, configuration, consulting, training and/or other custom services specified in a Custom Work Order.

‘Customisation(s)’ means the customisation or configuration of the Licensed Product by the Customer, such as (but not limited to) using ‘free text fields’ to gather information and/or input from Authorised Users.

‘Data Processing Addendum’ means the data processing agreement between the parties available at serko.com/legal/dpa

‘Data Protection Laws’ means all legislation and regulations relating to data protection and privacy that are directly applicable to, and binding on, a party in relation to Customer Personal Data.

‘Data Subject’ means a natural person to whom the Customer Personal Data relates.

‘Disabling Code’ means any ‘back door’, ‘time bomb’, ‘logic bomb’, ‘Trojan Horse’, ‘worm’, ‘drop dead device’, ‘virus’ or other code intended or designed to: (a) permit access to or use any computer systems or data without authorisation; or (b) disable, damage, corrupt or erase, or disrupt or impair the normal operation of, computer systems or associated data.

‘Discloser’ has the meaning given to it in clause 15.1 (Obligation of confidentiality).

‘Dispute’ means a dispute, difference, controversy, or claim arising out of, relating to, or in connection with the Agreement (including any question regarding its existence, validity, or termination), the Licensed Product, or any Services.

‘Fees’ means all fees payable by Customer to Serko under this Agreement including as set out in any Order.

‘Final Payment Notice’ has the meaning given to it in clause 13.3 (Termination for failure to pay).

‘Force Majeure Event’ means an event or circumstance beyond the reasonable control of a party, including: fire, flood, explosion, earthquake, storm or other natural disaster; civil commotion, hostilities (whether war is declared or not), sabotage, an act of terrorism, chemical or biological contamination; the acts of any public authority or imposition of any government sanction, embargo or similar action; strikes, industrial action and other labour disputes, excluding those in respect of the work force of Customer; or pandemics, epidemics, infectious disease outbreaks or other multinational health issues preventing or impeding the free carriage of goods and/or the free movement of people.

‘Fulfilment Services’ means services related to travel bookings made using the Licensed Product and services to support Serko to facilitate travel bookings made using the Licensed Product, including:

(a) participating in implementation meetings and providing assigned deliverables in a timely manner;

(b) providing configuration information to facilitate the implementation of the Licensed Product (and reviewing and updating such information at least twice a year);

(c) setting up service bureau/branch access;

(d) setting up GDS queues/categories for approvals, cancellations, completed records and other queue information as requested;

(e) providing profile and PNR specifications for every GDS pseudo city code in which PNRs or profiles are built;

(f) performing and maintaining vendor discounts;

(g) providing quality assurance and active testing of profile and PNR formats and vendor discounts;

(h) using the approved format for any test bookings; and

(i) helping Serko troubleshoot travel booking fulfilment issues.

‘General Terms’ means clauses 1-21 (inclusive).

‘Go-Live Date’ means, without limiting clause 1.2 (Term), the earlier of: (a) the date on which the Licensed Product is available in a live production environment for operational use by Customer in its business; or (b) the date of Acceptance.

‘Good Industry Practice’ means, in relation to any undertaking and any circumstances, the exercise of the degree of skill, care, prudence, diligence and foresight that would be exercised by a good practitioner, experienced in the relevant industry practice.

‘Hosting Services’ means the hosting of the Licensed Product.

‘Implementation Services’ means: (a) the services that Serko will carry out to implement the Licensed Product based on the information and reasonable directions provided by Customer and any applicable implementation plan or additional details specified in the Order.

‘Indemnified Claim’ has the meaning given to it in clause 9.3 (Conduct of claims).

‘Indemnified Party’ has the meaning given to it in clause 9.3 (Conduct of claims).

‘Indemnifying Party’ has the meaning given to it in clause 9.3 (Conduct of claims).

‘Information Security Incident’ means a breach of security leading to the accidental or unauthorised destruction, loss, alteration, or disclosure of, or unauthorised access to, Reseller Personal Data, in circumstances where Serko (acting reasonably) considers that the destruction, loss, alteration, disclosure, or access to such Customer Personal Data is or is likely to be notifiable to a Regulatory Authority and/or a Data Subject in accordance with Data Protection Laws.

‘Insolvency Event’, in relation to a party, means that: (a) the party ceases or takes steps to cease to conduct its business in the normal manner; (b) the party goes into receivership or has a receiver, trustee or manager (including a statutory manager) appointed in respect of that party and/or all or any of its property; (b) the party enters into voluntary administration; (c) the party is unable to pay its debts when they are due or is presumed to be unable to pay its debts as they fall due; (d) the party makes an assignment for the benefit of, or enters into or makes any arrangement or composition with, its creditors; (e) any resolution is passed or any proceeding is commenced for the winding up or liquidation of the party (whether on a voluntary or involuntary basis); or (f) any analogous demand, appointment or procedure occurs in relation to the party.

‘IPR’ means: (a) all intellectual property rights throughout the world, including rights in respect of copyright, patents, trade marks, designs, trade secrets, know-how, and circuit layouts (in each case, whether registered or unregistered); and (b) any application or right to apply for registration of any of the rights referred to in paragraph a above.

‘Licensed Product’ means the licensed product(s) described in the relevant Order and Product Terms.

‘Licensed Product IPR’ means all IPR, other than IPR that is Customer IPR, in the Licensed Product.

‘Losses’ means: (a) costs, expenses, fines and penalties (whether civil, criminal or otherwise) incurred in relation to a Claim; (b) all legal costs and expenses incurred (including solicitor-client costs) in relation to a Claim; and (c) amounts paid or payable in settlement or in connection with a judgment in respect of a Claim, including all interest, assessments and other charges paid or payable in connection with any of the foregoing, but excluding any such amounts to the extent that they are indirect or consequential loss of the person having made the Claim.

‘New IPR’ means all IPR developed or created under this Agreement and/or in connection with provision of the Services.

‘New Release’ means a substantially new version of the Licensed Product or any element of the Licensed Product incorporating new, or additional, major functionality, which is released after the Go-Live Date.

‘Order’ means collectively an order for the Licensed Product and/or Services pursuant to a Custom Work Order entered into in accordance with clause 1.3.

‘PCI DSS’ means the Payment Card Industry Data Security Standard developed by the PCI Security Standards Council.

‘PCI SSC’ means the Payment Card Industry Security Standards Council.

‘PCI Standards’ means: (a) the PCI DSS; (b) the Payment Application Data Security Standards (PA-DSS); and (c) Pin Transaction Security (PTS).

‘Permitted Sub-Licensees’ has the meaning given to it by clause 10.4 (Permitted Sub-licences).

‘Permitted Uses’ has the meaning given to it by clause 4.1 (Permitted uses).

‘Personal Data’ means information about, or relating to, an identified or identifiable individual, and otherwise has the meaning given to it or to the term ‘personal information’ by applicable Data Protection Laws.

‘Product Terms’ has the meaning given to it in clause 20.2 (Inconsistency).

‘Recipient’ has the meaning given to it in clause 15.1 (Obligation of confidentiality).

‘Regulatory Authority’ means a regulatory authority having jurisdiction over a party and/or in respect of the Services.

‘Sales Tax’ means any sales tax, value added tax, consumption tax, or goods and services tax in any jurisdiction.

‘Serko Affiliate’ means any entity which directly or indirectly Controls, is Controlled by, or is under common Control with Serko, and “Control”, for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of Serko.

‘Serko Brand’ means any trade marks or service marks used to identify Serko: (a) as the provider of the Licensed Product, including the mark ‘POWERED BY ZENO’ (in whatever form and however stylised); and (b) otherwise in relation to the Licensed Product.

‘Serko Business Partner Code of Conduct’ means the Code of Conduct found on the serko.com website.

‘Serko IPR’ means: (a) all of Serko’s Background IPR; (b) all New IPR; (c) all IPR in the Serko Brand; and (d) all Licensed Product IPR.

‘Serko Support Manual’ means the document entitled the same, as published on the Zeno Support Centre, which sets out the parameters of the Support Services to be provided by Serko in connection with the Licensed Product(s).

‘Services’ means the Implementation Services; Support Services; Hosting Services; Custom Services; and additional services (if any) specified in the relevant Product Terms and/or Order.

‘Standard Rates’ means Serko’s then-current standard hourly resource rates.

‘Start Date’ means the date outlined in the relevant Order.

‘Subcontractor’ means any person to whom a party subcontracts any obligations under the Agreement.

‘Support Services’ means technical support services (if any) in connection with the use of the Licensed Product, pursuant to the Serko Support Manual.

‘Term’ means the term of the Agreement contemplated by clause 1.2 (Term).

‘Territory’ means the geographic area or countries specified as the ‘Territory’ in the Order, from which Authorised Users may access the Licensed Product.

‘Third Party Feature’ means any feature or functionality of, and/or information in, the Licensed Product that is provided by a Third Party Supplier (if any), whether made available through an application programming interface or otherwise.

‘Third Party IP Claim’ means any third party Claim alleging that Customer’s use of the Licensed Product in accordance with the Agreement infringes the IPR of that person, but excludes any such Claim to the extent that such Claim relates to the use of Customer IPR.

‘Third Party IP Claim Notice’ has the meaning given to it by clause 10.9 (Termination by Customer).

‘Third Party Supplier’ means any person other than Serko who provides any Third Party Feature.

‘Unlawful Act’ means an act or omission to act that might reasonably be considered to cause Serko to: (a) breach Applicable Law; (b) deal in any way with any person who is sanctioned, or is connected in any way to any person who is sanctioned, under economic and trade sanctions or regulations imposed by or administered by any Regulatory Authority; (c) breach any sanction of any kind imposed by any country, body or organisation (including any sanction that supports a decision or resolution of the United Nations Security Council); (d) deal in any way with any person who has been listed or named by any Regulatory Authority as a person who is in any way suspected of being involved (or potentially involved) in terrorism or in any activities connected with terrorism; or (e) be involved (whether directly or indirectly) in any transaction which involves the proceeds of unlawful conduct or which involves proceeds which might be applied for the purposes of unlawful conduct.

‘Updates’ means all corrections for defects, patches, fixes, enhancements, refinements, changes, extensions, alterations, variations or additional minor functionality, made to the Licensed Product.