Terms of Purchase and Use
Cornerstone Software Services and Professional Services
Client’s purchase and use of Cornerstone software services and professional services, and Cornerstone’s provision of such services to Client shall be subject to the following terms and conditions (“Terms of Purchase and Use”). These Terms of Purchase and Use shall apply in addition to any agreement by and between Client and Cornerstone relating to the subject matters hereof (“Other Agreement(s)”), and in the event of a conflict between such Other Agreement(s) and these Terms of Purchase and Use, the latter shall govern. Client and Cornerstone each is a Party and together are the Parties hereto.
1. Software Services and Professional Services.
a) Cornerstone agrees to provide Client with non-exclusive access to and use of the Software Services and Hosted Systems subject to these Terms of Purchase and Use and of the applicable Other Agreement(s) between Cornerstone and Client. “Software Services” means Cornerstone’s proprietary software services as identified in such agreement(s). “Hosted Systems” means the systems operated by or on behalf of Cornerstone which Cornerstone uses to host, operate and allow customers and others to access and use the Software Services, including computers and other hardware, software and networks.
b) The software services may access, use, obtain information (e.g., data) from and/or provide information to one or more third-party system(s), including any Global Distribution System(s) (“GDS,” as the term is commonly used in the travel industry, e.g., a GDS or Computer Reservation Systems (CRS) with which the Software Services are designed to interact, which are owned and operated by third parties (e.g., Sabre, Amadeus, or Travelport)). Client is responsible for all charges incurred for access and/or use of any Third Party System in connection with the Software Services, and Client shall pay directly to the third party system provider or reimburse Cornerstone for any such charge incurred by Client or Cornerstone in connection with Client’s purchase or use or Cornerstone’s provision to Client of the Software Services.
c) Cornerstone provides access to and use of the Software Services by Client will via the internet. For clarity: Cornerstone has no responsibility for the availability or performance of the internet.
d) Except as expressly permitted with respect to Client Affiliates, Client (i) shall only access or use the Software Services for its own internal use in connection with its travel business; and (ii) shall not access or use the Software Services for the benefit of any party other than its direct customers obtaining travel services directly from Client; and (iii) without limitation of the foregoing shall not act as a service bureau for other users with respect to the Software Services or re-sell them in any manner.
e) “Client Affiliate” means a direct, wholly-owned subsidiary of Client, only for as long as such subsidiary remains wholly-owned by Client. Client may permit Client Affiliates to use and access the Software Services in the same manner as, and subject to the same Terms of Purchase and Use, as Client. Client may access and use the Software Services for the benefit of Client Affiliates, and Client Affiliates may access and use the Software Services for the benefit of Client and for Client Affiliates. Client shall ensure that Client Affiliates comply with these Terms of Purchase and Use, and Client shall be liable to Cornerstone for failure to ensure such compliance.
f) Client agrees to comply with Cornerstone’s policies and procedures for accessing and using the Software Services, including without limitation user security policies. Client shall only access and use the Software Services in accordance with its instructions and using the interface provided by Cornerstone, and shall not circumvent or attempt to circumvent such interface. Client shall not access or use the Hosted Systems other than through its use of the Software Services, and shall not attempt to do the foregoing. Client shall not download, copy, distribute, modify, decompile, disassemble or reverse engineer, or create derivative works of, the Software Services or the Hosted Systems.
g) Cornerstone Professional Services. From time to time Client and Cornerstone may agree to Client’s purchase and Cornerstone’s provision to Client accordingly of professional services (e.g., software set-up or implementation, design, programming, configuration; training; project management; and/or consulting and other professional services from Cornerstone to Client) (“Professional Services”). Such Professional Services shall be (i) billable from Cornerstone to Client, and payable by Client to Cornerstone, and (ii) subject to any applicable purchase agreement between Client and Cornerstone and to the terms and conditions hereof.
Client shall reimburse Cornerstone for all reasonable expenses incurred by Cornerstone in connection with travel for the purpose of Cornerstone’s providing Professional Services to Client, provided that Client has given prior approval of such travel. If Client does not pay Cornerstone directly for such expenses, then Cornerstone will invoice Client for and Client agrees to pay the actual cost of such expenses.
2. Plan Maintenance and Plan Support.
a) Plan Maintenance: Provided Client is in compliance with any applicable agreement between Client and Cornerstone and the terms and conditions hereof, Cornerstone will provide Updates to Client whenever Cornerstone makes such Updates generally available to its customers (e.g. as Maintenance Release(s)). Client is not automatically entitled to receive new Versions, which may require new contract terms and/or payment of additional fees. “Updates” means updates to the Software Services and made generally available by Cornerstone to its customers, in the form of Software Services only, including error corrections and bug fixes, but does not include any new Version of the Software Services. “Version” means a new version of the Software Services designated by Cornerstone as such. New Versions generally contain significant changes to prior Versions.
b) Plan Support: Provided Client is in compliance with any applicable agreement between Client and Cornerstone and the terms and conditions hereof, Cornerstone shall make available to Client technical support with respect to the Software Services comprising basic “help desk” support and general guidance on Client’s usage of the Software Services only, by email or telephone in English only, Monday through Friday 8AM to 8PM Eastern Time U.S.A. (except for U.S. public holidays) (“Plan Support”). Plan Support excludes without limitation: diagnosis or resolution of technical issues that requires root-cause analysis; configuration and/or set-up of the Software Services and any change(s) to such configuration and/or set-up; programming of the Software Services (e.g. ResRule™ programming of iQCX® software services) and/or any consulting related thereto; resolution of technical issues related to any third party (e.g. GDS issues); training; and any work effort or activity performed on location at any Client site. Any work effort performed by Cornerstone on Client’s behalf but not included in Plan Support shall constitute Professional Services from Cornerstone to Client.
3. Term and Termination
a) These Terms of Purchase and Use shall remain in effect so long as any Other Agreement(s) remain in effect between the Parties, or Client is actively using Cornerstone Software Services and Professional Services, whichever is longer.
b) Termination for Convenience: In the event that any Other Agreement(s) does not specify the terms and conditions of termination by either Party for convenience, then either Party may for its convenience terminate these Terms of Purchase and Use on not less than 30 days’ written notice to the other Party.
c) If either Party materially breaches these Terms of Purchase and Use and does not cure such breach within 30 days after its receipt of written notice thereof, then the other Party may terminate this Agreement immediately upon written notice.
d) Cornerstone may terminate these Terms of Purchase and Use upon written notice if a Change of Control occurs at Client. “Change of Control” means: (a) the approval by the equity holders of Client of a sale or other disposition of all or substantially all of its assets, a reorganization, a merger or a consolidation; or (b) the acquisition by any means by an individual, partnership, corporation, limited liability company, association, joint venture, unincorporated organization or other legal entity of (i) beneficial ownership of 50% or more of the then-outstanding equity interests of Client or (ii) the ability to control the voting power of 50% or more of the then-outstanding voting securities of Client entitled to vote generally in the election of the Board of Directors, in the case of a corporation, or the corresponding managing body, in all other cases. Client shall promptly notify Cornerstone of any Change of Control.
e) Upon expiration or termination of these Terms of Purchase and Use for any reason, Client shall immediately stop accessing and using the Software Services and Hosted Systems. Client shall pay applicable termination fees and/or cancellation penalty(ies) set forth in Other Agreement(s), if any. Expiration or termination of these Terms of Purchase and Use for any reason shall not relieve Client of its obligation to pay any fee amounts incurred prior to such termination or expiration (e.g. fees incurred regardless of Client’s usage of the Software Services).
f) Survivals: The following provisions shall survive expiration or termination of these Terms of Purchase and Use for any reason: Sections 1, 2(b), 2(d), 4(e), 5(e), 5(f), 8, 9, 10, 11, 12, 13, 14(b), 15, 17, 18 and 19.
4. Fees and Payment Terms
a) Client shall pay to Cornerstone the fees specified in the Other Agreement(s). Cornerstone may in its sole discretion commence or change any fee for any Software Service or Professional Service on 60 days’ written Notice to Client.
b) Client shares responsibility with Cornerstone for ensuring that services of the Software Services are configured, customized and/or implemented for use by Client in a timely manner. Cornerstone reserves the right to begin invoicing in full for all fees and charges related to any Software Services after 90 days from the date of Client’s agreement to purchase such services. All billable use of the Software Services incurred by or on behalf of Client shall be payable by Client to Cornerstone.
c) Client shall pay Cornerstone invoices according to their payment terms or as otherwise specified in the applicable agreement(s) between Client and Cornerstone. In the event that an invoice or applicable agreement does not specify payment terms, then the following payment terms shall apply: Client shall pay Cornerstone invoices within 30 days of the date of the invoice (“Due Date”). All payments shall be made in U.S. dollars. Without prejudice to any other recourse available to Cornerstone, Cornerstone may suspend its provision od the Software Services, and/or Client’s use of them, and Cornerstone’s performance of obligation to Client, for non-payment by Client of any invoice after its Due Date.
d) Client shall pay directly or reimburse Cornerstone for any taxes arising in connection with Client’s purchase and/or use and/or Cornerstone’s provision to Client of the Software Services and any professional services, excluding any taxes on Cornerstone’s income, gross revenues (other than sales, use, franchise or excise tax) or employee-related taxes. Such taxes payable will be billed as separate items on invoices or on separate invoices, which in either case will also include a reasonable description of the nature of such tax.
e) Cornerstone may charge a late fee for all amounts not paid when due, equal to the lesser of (i) 1.5% per month and (ii) the maximum amount permitted by applicable law.
f) Fees for Current Products and/or Software Services: If these Terms of Purchase and Use apply to the replacement of any Cornerstone licensed software product(s) or hosted software service(s) already in use by Client with the Software Services, then all fees related to such Cornerstone product(s) and/or hosted service(s) already in use by Client prior to the Effective Date hereof (“Prior Cornerstone Products”) shall remain payable so long as such Prior Cornerstone Products remain in active use by the Client, including but not limited to license, maintenance, service, and/or renewal fees.
g) Additional Hardware and Software. Client shall reimburse Cornerstone for the actual cost of any additional hardware and software purchase(s) by Cornerstone required solely for the purpose of providing services of the Software Services to Client, provided that Cornerstone shall give written Notice to Client at least thirty (30) days prior to any such purchase(s), and Client must approve such purchase(s) or may terminate its use of the Cornerstone services without penalty.
5. Service Levels.
The Service Levels set forth in Schedule C will apply to the Software Services. Cornerstone is not responsible for any Service Level failure or shortfall caused by any non-compliance of Client with these Terms of Purchase and Use. Any configuration of the Software Services or ResRule™ programming performed solely by Client shall void the Service Levels. In no event shall any failure of Cornerstone to meet the Service Levels constitute a material breach of these Terms or Purchase and Use.
6. INTENTIONALLY BLANK
As between Cornerstone and Client, Cornerstone owns the Software Services and the Hosted Systems, and all intellectual property rights therein. The Software Services (including all user tables and ResRules™) and Hosted Systems are the exclusive property of Cornerstone or its licensors, if any. Client shall not gain or receive any property rights, including intellectual property rights, by or through its use of the Software Services and Hosted Systems or in any other manner hereunder. Unless otherwise agreed in writing, Cornerstone retains ownership of all work product, and intellectual property rights therein, developed in connection with the Other Agreement(s) and these Terms of Purchase and , and no such work product shall be deemed or considered to be a “work made for hire” by Cornerstone. Client shall neither have nor claim any ownership right(s) in the Software Services or the Hosted Systems and shall not license, publish, display, disclose, rent, lease, modify, loan, distribute or create derivative works based on the Software Services or the Hosted Systems or any part thereof.
8. Client Information and Confidentiality
a) Cornerstone acknowledges and agrees that, as between the Parties, any information provided by Client to Cornerstone hereunder, e.g. historical travel management data regarding Client’s customers, including individuals’ personally identifiable information, (collectively, “Client Information”) will be considered confidential and proprietary information of Client. Client hereby grants to Cornerstone a limited, non-exclusive license to use the Client Information for purposes of fulfilling its obligations arising under these Terms of Purchase and Use. In addition, Client grants to Cornerstone a perpetual, non-exclusive, and otherwise unlimited license to a de-identified copy of Client Information excluding information identifying Client, sub-users, Client’s clients or individuals (inclusive of all forms of personal identifiable or printed information) (“De-identified Data”). Cornerstone shall defend, indemnify, and hold harmless Client from any claim, liability, or loss (inclusive of court costs and reasonable attorney’s fees) that is a result of Cornerstone’s failure to remove such information with respect its use of Client Information for any purpose other than fulfilling its obligations arising under these Terms of Purchase and Use. The license to the De-identified Data and the related indemnification obligation shall continue in effect with respect to all information transferred to Cornerstone as of the termination of these Terms of Purchase and Use and shall survive the termination of these Terms of Purchase and Use as to all such information. For clarity, the De-identified Data of Client shall not be considered Confidential Information as defined herein.
Client Information: Client hereby grants to Cornerstone a limited, non-exclusive license to use the Client Information for purposes of fulfilling its obligations arising under these Terms of Purchase and Use. Client grants to Cornerstone a perpetual, non-exclusive, and otherwise unlimited license to a de-identified copy of Client Information excluding information identifying Client, sub-users, Client’s clients or individuals (inclusive of all forms of personal identifiable or printed information) (“De-identified Data”). Cornerstone shall defend, indemnify, and hold harmless Client from any claim, liability, or loss (inclusive of court costs and reasonable attorney’s fees) that is a result of Cornerstone’s failure to remove such information with respect its use of Client Information for any purpose other than fulfilling its obligations arising under these Terms of Purchase and Use. The license to the De-identified Data and the related indemnification obligation shall continue in effect with respect to all information transferred to Cornerstone as of the termination of these Terms of Purchase and Use and shall survive the termination of these Terms of Purchase and Use as to all such information. For clarity, the De-identified Data of Client shall not be considered Confidential Information as defined in the Hosting Agreement.
b) Confidentiality. In the course of performing these Terms of Purchase and Use, it is anticipated that each party will learn confidential or proprietary information about the other party, and their respective businesses. Each party will keep confidential and not disclose to third parties this information and any other information which it may acquire with respect to the other party’s businesses, including, but not limited to, information developed and relating to products and services, customers, pricing, know-how, trade secrets, processes, and practices (collectively, “Confidential Information”), and shall not use any Confidential Information for its own benefit or for the benefit of any third party, and only for the purposes of performing its obligations under these Terms of Purchase and Use. The parties’ obligations with respect to the treatment of Confidential Information will survive the termination of these Terms of Purchase and Use. It is understood, however that the restrictions listed above shall not apply to any portion of the Confidential Information which: (a) was previously known to the receiving party without obligations of confidentiality; (b) is obtained by the receiving party after the effective date of these Terms of Purchase and Use from a third party which is lawfully in possession of such information and not in violation of any contractual or legal obligation to the disclosing party with respect to such information; (c) is or becomes part of the public domain through no fault of the receiving party; (d) is independently developed by the receiving party without use of the Confidential Information; or (e) is approved for release by written authorization of the disclosing party. The receiving party may disclose Confidential Information to the extent it is required to do so by administrative or judicial action, provided that the receiving party immediately after receiving notice of such action notifies the disclosing party of such action to give it the opportunity to seek any other legal remedies to maintain such Confidential Information in confidence.
10. Representations and Warranties
Each Party represents and warrants to the other that it has the necessary corporate authority to enter into these Terms of Purchase and Use and to perform its obligations hereunder, and that it has not breached any contract with any other Person by entering into these Terms of Purchase and Use. Client represents and warrants that (i) it has all rights and permissions necessary to provide traveler data to and use the Software Services and Hosted Systems; (ii) such usage will not infringe upon any data or personal privacy, confidentiality, trade secret, trademark, trade name, license, patent, copyright, common law, intellectual property or other proprietary rights of any person, firm or corporation; (iii) such usage will not violate any law or statute; (iv) it has all rights, power and authority necessary to perform its obligations under these Terms of Purchase and Use; and (v) it is under no legal obligation or prior commitment which is inconsistent with these Terms of Purchase and Use.
11. Disclaimer Of Warranties
Except for the express warranties in Section 10, Cornerstone hereby disclaims all representations and warranties, express or implied, regarding these Terms of Purchase and Use and the subject matter hereof (including with respect to Software Services or Hosted Systems and any services provided hereunder), including the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Without limiting the foregoing, Cornerstone makes no guarantee that access to or use of the Software Services will be free of errors or interruptions.
Client acknowledges and agrees that it is solely responsible for its use of the Software Services; that the Software Services is not designed or intended for use in environments or circumstances requiring fail-safe performance or for any emergency use; and, without limitation of the foregoing, that the Software Services shall not be used where any failure, error or delay in operation of the Software Services could lead to personal injury or property damage.
12. Exclusion Of Consequential Damages
Notwithstanding any provision of these Terms of Purchase and Use to the contrary, except as expressly set forth in this Section 12, under no circumstances shall either Party be liable for any punitive, exemplary or other special damages, or any indirect, incidental or consequential damages (including without limitation damages relating to loss of profit, savings, missed ticketing, data, business opportunity or business reputation), arising under or in connection with these Terms of Purchase and Use, regardless of whether such damages are based in contract, breach of warranty, tort, negligence or any other theory, and regardless of whether such Party has been advised of, knew of, or should have known of the possibility of such damages. Each Party, as a material inducement to the other Party to enter into these Terms of Purchase and Use, expressly waives its right to obtain any such damages, and agrees not to seek to recover any such damages in connection with any claim arising under or in connection with these Terms of Purchase and Use, and agrees that under no circumstances shall this Section 12 be determined to have failed of its essential purpose. The exclusions set forth in this Section 12 shall not apply to Client’s breach of Section 2(d), 2(f) or 8, or to Cornerstone’s breach of Section 9(a).
13. Limitation Of Liability
Notwithstanding anything to the contrary contained herein, in no event shall Cornerstone’s aggregate liability arising under or in connection with these Terms of Purchase and Use exceed the average recurring monthly hosting fees (which excludes any initial fees and any fees for hardware and other services) paid by Client during the Term multiplied by twelve (12), regardless of whether such liability is based in contract, breach of warranty, tort, negligence or any other theory, and regardless of whether such Cornerstone has been advised of, knew of, or should have known of the possibility of such damages. Client, as a material inducement to Cornerstone to enter into and perform its obligations under these Terms of Purchase and Use, expressly waives its right to obtain any damages in excess of such amount, and agrees not to seek to recover any such excess amount in connection with any claim arising under or in connection with these Terms of Purchase and Use, and agrees that under no circumstances shall this Section 13 be determined to have failed of its essential purpose.
a) In the event that a claim is filed against Client in a court of competent jurisdiction alleging that the Software Services infringes or misappropriates a U.S. copyright or trade secret of any person (other than Client and Client Affiliates), then Cornerstone shall defend Client against such claim, and shall indemnify and hold harmless Client against any damages and costs that Client is ordered to pay by such court as a result of such claim; provided that: (i) Client promptly notifies Cornerstone of such claim; (ii) Cornerstone controls the defense or settlement of such claim; (iii) Client fully cooperates with Cornerstone with respect to such defense or settlement. If, as a result of any such claim, Cornerstone and/or Client is enjoined from using the Software Services, or if Cornerstone believes that the Software Services is likely to become the subject of a claim or an injunction, Cornerstone at its option and expense may (i) procure the right for Client to continue to use the Software Services, (ii) replace or modify the Software Services so as to make it non-infringing, or (iii) terminate these Terms of Purchase and Use and refund to Client the recurring monthly hosting fees (which excludes any initial fees and any fees for hardware and other services) paid by Client during the six month period immediately prior to such termination. The foregoing states Cornerstone’s entire liability, and Client’s sole and exclusive remedy, with respect to infringement of any copyrights or misappropriation of any trade secrets arising under or in connection with these Terms of Purchase and Use, and it is agreed that Cornerstone shall have no liability whatsoever with respect to patents.
b) Client shall hold harmless Cornerstone and its officers, successors, licensors, licensees and assigns from and indemnify them against any and all liability or loss without limitation, including reasonable attorney’s fees, which they or any of them may suffer as a result of Client’s use of the Software Services and/or Hosted Systems or its breach of any of its representations or warranties or of any term or condition of these Terms of Purchase and Use.
During the Term of these Terms of Purchase and Use and for one year after its expiration or termination for any reason, neither Party will knowingly solicit any employee of the other Party for the purposes of offering employment; provided, that nothing in this Section 16 will prohibit the solicitation of employees (i) through advertising in newspapers, periodicals, websites or electronic mail of general or trade circulation not specifically targeted to the employees of either Party, (ii) by an employee search firm on behalf of the other Party to these Terms of Purchase and Use, provided, that such employee search firm is not advised, by employee or company name, to solicit such employees, or (iii) as a result of an employee initiating discussion with the other Party without any direct or indirect solicitation by such party.
16. Export Control
Both Cornerstone and Client agree to comply fully with all relevant export laws and regulation of the country or countries where their offices are located.
17. Choice of Law and Jurisdiction
These Terms of Purchase and Use shall be governed by and construed in accordance with the laws of the United States of America (USA) and the State of Indiana (USA), without giving effect to any choice-of-law or conflict-of-law provision or rule (whether of the State of Indiana or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the USA or the State of Indiana. Each Party hereby irrevocably consents to the exclusive jurisdiction of the federal and state courts located in the State of Indiana for any legal action, suit, or proceeding arising under or relating to these Terms of Purchase and Use, and agrees that any such action, suit, or proceeding may be brought only in such courts. Each Party hereby further irrevocably waives any objection to the laying of venue for any such suit, action, or proceeding in such courts. Each party agrees to accept and acknowledge service of any and all process that may be served in any such action, suit or proceeding or for the purpose of enforcing any such decisions or rulings. Each party agrees that any service of process provided in accordance with the notice provisions set forth herein shall be deemed in every respect effective service of process upon such party in any such action, suit or proceeding.
Any and all notices, requests, demands and other communications required or otherwise contemplated to be made under or in connection with these Terms of Purchase and Use shall be in writing and in English and shall be deemed to have been duly given: (i) if delivered personally, when received; (ii) if transmitted by facsimile, upon receipt of a confirmation of receipt; (iii) if by domestic courier service, on the second business day following the date of deposit with such courier service, or such earlier delivery date as may be confirmed to the sender by such courier service; and (iv) if by international courier service, on the fourth business day following the date of deposit with such courier service, or such earlier delivery date as may be confirmed to the sender by such courier service. All such notices, requests, demands and other communications shall be addressed as set forth below, or as otherwise instructed by the applicable Party pursuant to written notice:
If to Client: the Client Name and Address specified in the agreement(s)
If to Cornerstone: Cornerstone Information Systems, Inc.
304 West Kirkwood Avenue Suite 4
Bloomington, IN 47404
a) Neither these Terms of Purchase and Use nor any of the rights, interests or obligations hereunder may be assigned by Client (including by operation of law) without the prior written consent of Cornerstone. Cornerstone may assign these Terms of Purchase and Use, together with its rights, interests and obligations hereunder, to any other Person. Any assignment of these Terms of Purchase and Use or any of the rights, interests or obligations hereunder other than as expressly permitted by this Section 19(a) shall be null and void and shall not bind or be recognized by either Party. Subject to the preceding sentences in this Section 19(a), these Terms of Purchase and Use will be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns. Cornerstone may subcontract any or all of its obligations hereunder.
b) These Terms of Purchase and Use constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, agreements and representations, oral and written, by or between the Parties with respect thereto. These Terms of Purchase and Use may be amended, modified or supplemented only by written agreement of the Parties. Nothing in such schedule shall be binding unless and until it is executed by both Parties.
c) If any term or other provision of these Terms of Purchase and Use is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, conditions and provisions of these Terms of Purchase and Use shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify these Terms of Purchase and Use so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
d) Except for payment obligations, neither Party will be in default or liable for any delays in performance, non-performance or downtime caused by acts of God, war, strikes, labor disputes, fires, work stoppages, acts of governments, providers of data, communications or other services, acts or omissions or GDS suppliers, or for any other cause beyond the control of such Party (“Force Majeure Event”).
e) The waiver or failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right herein.
f) The language used in these Terms of Purchase and Use is deemed to be the language chosen by the Parties to express their mutual intent and no rule of strict construction will be applied against either Party. The use of the word “including” in these Terms of Purchase and Use means “including without limitation” and is intended by the Parties to be by way of example rather than limitation. As used in these Terms of Purchase and Use, the terms “hereof,” “hereunder,” “herein” and words of similar import will refer to these Terms of Purchase and Use as a whole and not to any particular provision of these Terms of Purchase and Use. The descriptive headings contained in these Terms of Purchase and Use are included for convenience of reference only and shall not affect in any way the meaning or interpretation of these Terms of Purchase and Use.
g) Nothing in these Terms of Purchase and Use shall be construed as giving any Person other than the Parties their respective permitted successors and assigns any legal or equitable right, remedy or claim under or with respect to these Terms of Purchase and Use.
h) These Terms of Purchase and Use may be executed and delivered in one or more counterparts (including by facsimile transmission or email, with hard copy to follow), and by each Party in separate counterparts, each of which, when executed and delivered, shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
i) Nothing in these Terms of Purchase and Use is intended to create or constitute a joint venture, partnership, agency, trust or other association of any kind between the Parties or persons referred to herein.
Hosted Software Service
Billable Transaction Definition
An iQCX QC “Transaction” is da data capture of a unique PNR by the Hosted Software and Hosted System. For each Hosted Software the count of Transactions for any specified billing period (e.g. a calendar month) is the count of unique PNRs data-captured from the GDS Hosts(s) during that period, provided that such data captures of the unique PNR sum to five (5) or fewer data captures during the specified billing period. Cornerstone reserves the right to charge Client and Client agrees to pay for an additional iQCX Transaction Fee for each instance of a unique PNR being data-captured by the Hosted Software in excess of five (5) times during the applicable billing period.
An iQCX Mail document delivery Transaction is any PNR for which at least one document was sent (emailed) by the Hosted Software. The count of iQCX Mail Transactions for any specified period (e.g. a calendar month) is the count of unique PNRs for which at least one document was emailed during the period. Cornerstone counts only one iQCX Mail Transaction for each such PNR; multiple documents (e.g. itineraries) sent on one occasion for a single unique PNR result in *one* iQCX Mail Transaction. Similarly, multiple subsequent occasions of itineraries sent for that same single unique PNR do *not* result in additional iQCX Mail Transactions, even if those itinerary sends occur in later periods (e.g. later months).
The count of billable hosted iQCX Ticketing Transactions is the number of PNRs in any specified period (e.g. a calendar month) which were completely processed by the Ticketing service. Each time iQCX Ticketing completely processes a PNR such that the processing results in the completed issuance of all ticket(s) and/or invoice(s) related to that PNR, a billable Ticketing Transaction results. A billable hosted iQCX Ticketing Transaction is the completed processing by Ticketing of a PNR. The number of passengers, tickets issued, or complexity of any PNR does not determine the count of billable hosted Ticketing Transactions. What iQCX Ticketing counts for transactional billing is the number of PNRs it has completely processed (not the number of tickets or invoices it has issued).
iBank Transactions payable by Client to Cornerstone are defined as all records loaded by Client and/or any Subscriber to the iBank databases during a defined time period, e.g. during a calendar month. Client’s and each Client Partner Subscriber’s iBank settings and configurations, and its business practices and reporting requirements, will influence the count of iBank Transactions. iBank Transaction Fees billable by Cornerstone to Client and payable by Client to Cornerstone shall commence with the first iBank Transaction processed by Cornerstone hereunder; all iBank Transactions processed by Cornerstone hereunder are payable by Client to Cornerstone.
iBank® Change Management™
An iBank Change Management “Transaction” is one change per day for each day a change occurs. The count of iBank Change Management Transactions is the count of days in which one or more changes occurred. Example: If a segment changes during a day and then changes again the following day, that will be two change Transactions. If a segment change takes place and then a hotel change takes place on the same day, that will be one change Transaction. For any given trip, iBank Change Management Transactions is the count of the number of days in which changes occurred for that trip.
PCM Policy Compliance Manager™
A PCM “Transaction” is a data capture of a PNR by the PCM system, regardless of whether the PCM system takes a travel authorization action. Cornerstone charges a PCM Transaction Fee for the first data capture of the PNR by the PCM system and then allows four additional PCM data-captures without additional charge. Cornerstone charges a PCM Transaction Fee for the sixth and each additional PCM data capture of the PNR. So, for example, if a PCM Client causes seven data captures of a single PNR, that would result in three PCM Transaction Fee charges: one for the first five data captures, and then one each for the sixth and seventh data captures of that PNR.
A Risk Messenger “Transaction” is each unique Passenger Name Record (PNR) for which Cornerstone has sent one or more Risk Messenger message(s) (e.g. email) to any recipient (e.g. traveler, or any end user of Cornerstone’s Risk Messenger™ software service.
Schedule C: Service Levels
1. System Availability
a) The System Availability to Client will be 98% or higher measured on a calendar month basis.
b) “System Availability” means the percentage of time during the applicable measurement period that the Hosted Software is available for use by Client, calculated as follows:
[ (T – U) / T ] x 100%
T = the total number of seconds during the applicable measurement period, excluding Scheduled Outages
U = the total number of seconds during the applicable measurement period during which the Hosted Software was subject to a Severity Level 1 or Severity Level 2 incident (defined below), excluding: (i) Scheduled Outages; and (ii) Excused Outages. The time period during which the Hosted Software is subject to such classifications will be calculated using information obtained from Cornerstone’s internal reporting system and error logs.
c) “Scheduled Outages” means any time period during the hours of 9:00 a.m. through 5:00 p.m. EST/EDT USA (“Business Hours”) during which the Hosted Software is not available for use by Client due to maintenance that was announced by Cornerstone at least 72 hours in advance of the outage.
d) “Excused Outages” means any Severity Level 1 or Severity Level 2 incident caused by: (i) a Force Majeure Event; (ii) access or use by Client that is prohibited or not in compliance with the Agreement, or improper usage of the Hosted Software; (iii) communications failures; or, (iv) an outage or latency on the internet or at a GDS Host or any other Third-Party System.
2. Severity Level Classifications
Cornerstone’s severity classifications for service incidents are.
a) “Severity Level 1” (Category – S1: System Down): “Severity Level 1” incident means a major Hosted System or Hosted Software capability is non-operational through the sole fault of Cornerstone such that Client is unable to process any transactions or access any data critical to its ability to conduct ordinary daily business. During Business Hours Monday through Friday Cornerstone will respond to Client’s voice mail or email clearly notifying Cornerstone of a Severity Level 1 incident within one (1) hour from the time Cornerstone receives such notification. Cornerstone’s standard for resolution of a S1: System Down incident is four hours from such receipt of notification.
b) “Severity Level 2” (Category – S2: Critical): “Severity Level 2” incident means a critical Hosted Software component capability is non-operational through the sole fault of Cornerstone such that Client is adversely affected in its ability to conduct ordinary daily business. During Business Hours Monday through Friday Cornerstone will respond to Client’s voice mail or email clearly notifying Cornerstone of a Severity Level 2 incident within four (4) hours from the time Cornerstone receives such notification. Cornerstone’s standard for resolution of a S2: Critical incident is two (2) business days from such receipt of notification.