ARC owns certain data relating to ARC Accredited Travel Agencies, Verified Travel Consultants, Reservation Service Providers and Corporate Travel Departments, which are or will be used in the publication of ARC's copyrighted agency list (the "Agency List Data").
Lessee desires to lease data from the Agency List Data, abstracted, compiled, coded, and organized by ARC onto computer readable file format, and consisting of the names and addresses of ARC-accredited locations, hereafter referred to as the "Leased Data."
The Agency List Data and Leased Data are extremely valuable to ARC.
ARC desires to lease the Leased Data to Lessee solely for the purposes specified in this Lease Agreement.
In consideration of these premises and for other good and valuable consideration, it is agreed as follows:
- LEASE
Subject to the terms and conditions of this ARC COMPASS® Lease Agreement Agency List Third Party ("Agreement"), ARC agrees to lease the Leased Data to Lessee.
- TERM
The "Effective Date" of this Agreement is the date of purchase and the term of this Agreement shall be for one year from the Effective Date
- FEES
- As consideration for the lease of Leased Data, Lessee shall pay ARC the amount specified on product order page, which may be updated from time-to-time.
- RESTRICTIONS ON USE OF DATA
- Lessee shall use the Leased Data solely for the purposes of:
- accounting and billing, reservations or processing of commissions between Lessee and travel agents appearing on the Leased Data; and
- Lessee's own direct mailings, advertising and/or promotional purposes, pursuant to the restrictions set out in Section 5.
- The Leased Data are for the exclusive use of Lessee. Lessee shall not copy, reproduce, duplicate, publish, disclose, distribute, sell, resell, license, or otherwise make available any Leased Data, or any portion thereof, to any other person, firm, corporation, partnership, or entity, other than a processor (as described in Section 6) in any form or manner whatsoever.
- Lessee shall notify ARC promptly if it learns that any Leased Data have been disclosed to any party other than itself or a data processor pursuant to the provisions of Section 6.
- RESTRICTIONS ON DIRECT PROMOTIONS
- Before Lessee contacts via direct mail or telephone the travel agents listed in the Leased Data, Lessee will notify ARC of: (i) the content of the direct promotion, (ii) when Lessee will deliver the direct promotion, and (iii) the number of ARC travel agency locations to which the direct promotion will be directed.
Such notice shall be acceptable if provided (a) by telephone, during regular business hours to ARC's Industry Products and Services department at telephone number (703) 816-8023; (b) in writing by facsimile transmission to fax no. (703) 816-8005; or (c) in writing via electronic mail to agencylist@arccorp.com or U.S. certified mail or private overnight courier to ARC's address as listed above. Notice sent to ARC by mail or facsimile transmission shall be directed to ARC's Product Operations Department. The telephone number, fax number, electronic and mailing address provided above for authorized notice pursuant to this section may be changed by ARC by written notice to Lessee at the address provided above.
- Lessee will not send direct mailings, advertising and/or promotional information or telemarket to those data records so coded.
- The above direct mailing restrictions do not apply to mail sent by Lessee which pertains solely to (1) accounting and billing, (2) reservations, or (3) processing of commissions between Lessee and the party to whom the mailing is directed.
- PROCESSOR
Lessee may not under this Agreement provide and make available the Leased Data to a data processor. If Lessee desires to use a processor, the Lessee must enter into a separate agreement with ARC.
- TITLE
Title to the Leased Data shall remain in ARC, and ARC shall retain all intellectual property rights to the Leased Data.
- TAXES
Lessee shall be liable for, and agrees to pay, any and all sales, use, or other state and local taxes which may be applicable to this Agreement.
- INDEMNIFICATION
- Lessee shall indemnify and hold harmless ARC, its shareholders, directors, officers and employees against any and all liability, damages, costs, or expenses, which may result from any use of the Leased Data, or any portion of it, not in accordance with this Agreement. This indemnity obligation shall survive the termination of this Agreement.
- Lessee shall indemnify and hold harmless ARC, its shareholders, directors, officers and employees against any and all liability, damages, costs, or expenses, which may arise out of, or in any way be connected with Lessee providing or making available the Leased Data to third parties including data processors. This indemnity obligation shall survive the termination of this Agreement.
- ASSIGNMENT
This Agreement shall not be assignable by either party without the prior written consent of the other party.
- NOTICES
Except for the telephone and facsimile notice described at Section 5.A. all notices required by this Agreement shall be in writing, mailed via U.S. mail or private courier to the other party at the address shown above, or such other address as either party shall specify by notice in writing to the other. All mail sent to ARC's address above shall be directed to the Product Fulfillment Department at ARC.
- TERMINATION
This Agreement may be terminated by either party at any time for any reason by thirty (30) days prior written notice to the other party, or immediately upon notice in the event of a material breach by the other party. For the purposes of this paragraph, "material breach" shall include, but not be limited to, those breaches described below at Sections 13 (a), (b), and (c) of this Agreement. In the event Lessee ceases operations or becomes insolvent, this Agreement shall automatically terminate. Termination of this Agreement shall not relieve either party from its obligations accrued pursuant to this Agreement prior to such termination, and all such obligations shall survive the termination of this Agreement. Upon termination of this Agreement, Lessee will destroy, or, upon written or verbal request of ARC, return to ARC at the address listed above, all copies and/or portions of Leased Data, in any medium whatsoever, in Lessee's possession. Upon termination of this Agreement each party shall fulfill any and all obligations incurred prior to such termination.
- LIQUIDATED DAMAGES
The parties hereto mutually agree that, in the event Lessee shall violate or otherwise breach any term, provision, and/or covenant of this Agreement regarding the use of the Leased Data, ARC shall suffer irreparable harm, and it will be difficult to ascertain with certainty the damages sustained by ARC.
Thus, the parties agree that in the event of such a breach by Lessee, Lessee shall pay to ARC $10,200.00 which amount represents liquidated damages agreed upon by the parties and is not a penalty. In the event that there is more than one such breach, Lessee shall pay to ARC $10,200.00 for each such breach. The parties further agree that in the event of such a breach or breaches, Lessee will pay to ARC, in addition to the liquidated damages stated above, a sum equal to the costs and expenses of any litigation, including, but not limited to, court costs and attorneys fees (including in-house counsel) incurred by ARC related to (i) such breach(es), and/or (ii) enforcement by ARC of any term, provision, or covenant of this Agreement. The liquidated damages outlined in this paragraph shall only compensate ARC for losses suffered directly by ARC, and payment thereof shall not relieve Lessee from its obligation to indemnify and hold harmless ARC for any and all liability, damages, costs, or expenses which may result from any use of the Leased Data or any portion of it, not in accordance with this Lease Agreement, which may result in the injury or grievance of any third party or parties. Breaches of the Agreement for the purposes of this Section shall include, but not necessarily be limited to, the events described below:
- Each provision of the Leased Data, or any portion thereof, by Lessee to a third party without the express written permission of ARC shall constitute a breach;
- Each sending of direct mail or telephone contact by Lessee to travel agents listed on the Leased Data in violation of Section 5. shall constitute a breach for each occurrence.
- Each unauthorized use by Lessee of the Leased Data or any portion thereof for the mailings, advertising, telemarketing and/or promotional purposes of any other person, firm, corporation, partnership, or entity other than Lessee, shall constitute a breach for each occurrence.
- For the purposes of this Section 13, an "occurrence" shall consist of an unauthorized sending of the same or substantially similar information to any number of travel agents appearing on the Leased Data, within a period of seven days. Each contact after the seven day period shall constitute an additional occurrence. Each unauthorized contact performed on behalf of each third party during each seven day period shall constitute an additional breach.
- WAIVER
Neither failure nor delay on the part of any party to exercise any right, remedy, power, or privilege hereunder nor course of dealing between the parties shall operate as a waiver thereof, or of the exercise of any other right, remedy, power, or privilege.
- FORCE MAJEURE
Neither Party shall be considered to be in default in the performance of its obligations under this Agreement, to the extent that the performance of any such obligation is prevented or delayed by any cause which is beyond the reasonable control of the affected Party. Such causes shall include, without limitation, acts of God, acts of terrorism, strikes, lockouts, riots, acts of war, governmental regulations superimposed after the fact, fire, earthquakes, or other catastrophes.
- SEVERABILITY
If any provision of this Agreement shall be held invalid by a court of law or equity, the remaining provisions shall be construed as if the invalid provisions were not included in this Agreement.
- INTEGRATION
This Agreement constitutes the entire agreement of the parties hereto regarding the subject matter of this Agreement, unless amended by a subsequent written instrument signed by both parties.
- HEADINGS
The captions and headings of this Agreement are for convenience and reference only and in no way define or limit the scope or content of this Agreement or in any way affect its provisions.
- CONSTRUCTION
This Agreement shall be construed in accordance with and governed by the laws of the Commonwealth of Virginia.
- REPRESENTATIONS AND WARRANTY
By selecting "I Agree", you represent and warrant that (a) all of the information provided by you to ARC to lease the Agency List Data is correct and current; (b) you are the owner, or you are legally authorized to act on behalf of the owner of the Lessee for the purposes of this Agreement; (c) you have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of you and/or Lessee hereunder; and (d) you and/or Lessee have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in your and/or Lessee's performance of any acts hereunder relative to the sending of email to entities identified in the Agency List Data. In addition, you further represent and warrant that you and/or Lessee, relative to the Agency List Data, will (i) comply with all applicable laws, statutes, ordinances, and regulations; and (ii) not breach any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories.