Agreement Last Updated: Feb 02, 2022
Terms of Service
Mondee, Inc. doing business as Mondee (“Mondee”) provides an online booking tool for business and leisure travel that offers discounted airfare, rental cars, hotels and other services.
The following terms and conditions (the “Agreement”), along with Mondee’s Privacy Policy (collectively, the “Agreement”), govern your access to and use of the Services (defined below) and constitute a legally binding agreement between Customer (defined below) and Mondee. By clicking the “Submit” button on an online Order Form, or by signing an Order Form which references this Agreement (as applicable), you or the entity you represent (the “Customer”) agree that you have read and agree to be bound by and a party to this Agreement to the exclusion of all other terms, and you represent and warrant that you are authorized to bind Customer; this Agreement forms a legal agreement between Customer and Mondee. Capitalized terms not defined herein shall have the meaning set forth on the Order Form which references this Agreement.
Please read this Agreement carefully before using the services offered by Mondee as it provides important information. A few important highlights of this Agreement include:
1. Definitions.
“Affiliate” means any entity controlling, controlled by, or under common control with, a party hereto, where “control” means the ownership of more than 50% of the voting securities in such entity.
“Customer Data” means all data and other content provided by Customer to Mondee in connection with using the Services.
“Leisure Travel” means bookings and reservations made by Users for non-business purposes, including
flights,
hotels, car rentals, vacation rentals, tickets & attractions, cruises, and tours & activities. Leisure Travel may be booked by Users for themselves, and family & friends that accompany User on a trip.
“Personal Data” will have the same meaning as applicable data protection laws and regulations.
“Platform” means the online and hosted services provided by Mondee which enables Users to book airlines, hotels, car rentals, and more at unpublished rates which are discounted over public rates. The Platform also enables Users to book Leisure Travel.
“Service(s)” means the Platform and any other services provided by Mondee hereunder.
“Subscription Period” means the period for which Customer has subscribed to use the Services, as further set forth in the Order Form.
“User” means a profile of an individual (e.g., member, employee, contractor, freelancer, or partner) on the Platform that has a status as a User (as set by Customer). Users comprise a closed user group that is authorized by Customer to use the Platform and Services.
2. Mondee Services.
2.1 Services. Mondee shall implement and operate the Platform for Customer in accordance with this Agreement.
2.2 Access and Account Setup. Mondee will provide Customer with access privileges that Permit Customer to access and manage the Platform and access Customer Data and other related data. As part of the implementation process, Customer will identify an administrative username and password that will be used to set up Customer’s account. Customer may use the administrative username and password to create Users (each with unique login IDs and passwords).
2.3 Customer Data. The parties will work together to enter initial User information and Customer Data into the Platform. Following that initial implementation, Customer will be responsible for entering User information and Customer Data into the Platform. Customer will have the ability to add, modify or delete Users from the Platform. Deleted Users will not apply toward to total number of Users on the Platform. Customer agrees that: (a) the quality of the Services depends on the uploading or other provisioning of Customer Data into the Platform and (b) Mondee will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the Customer Data entered by Customer.
2.4 Modifications.
2.4.1 Modifications to Platform and Services. Mondee reserves the right, at its sole discretion, to modify or discontinue the Platform (in whole or part) at any time by giving ninety (90) days’ prior written notice to Customer, provided that in the event such modification or discontinuance materially reduces the functionality of the Platform used by Customer in accordance with this Agreement, Customer may terminate this Agreement upon at least fifteen (15) days’ prior written notice to Mondee.
2.4.2 Modifications to this Agreement. Mondee reserves the right, at its sole discretion, to modify this Agreement at any time and without prior written notice to Customer but will not materially reduce its obligations therein without prior written approval from Customer. If Mondee modifies this Agreement, we will update the “Agreement Last Updated” date at the top of this Agreement. By continuing to access or use the Services after we have posted a modification, Customer is indicating that it agrees to be bound by the modified Agreement. If the modified Agreement is not acceptable to Customer, Customer’s only recourse is to cease using the Services.
2.5 Limitations.
Mondee will not be responsible or liable for any failure in the Platform resulting from or attributable to (a) Customer Data or failure to deliver Customer Data to Mondee, (b) failures in any telecommunications, network or other service or equipment outside of Mondee’s facilities, (c) Customer’s or any third party’s products, services, negligence, acts or omissions, (d) any scheduled maintenance in accordance with the terms herein, or (e) unauthorized access, breach of firewalls, or other hacking by third parties.
2.6 Compliance and Suspension.
Customer is responsible for its employee Users’ compliance with the terms and conditions of this Agreement. Without limiting the foregoing, Customer is solely responsible for ensuring that Customer’s and its employee Users’ use of the Services are compliant with all applicable laws and regulations. Mondee may immediately suspend Customer and User access to the Services in the event either fails to comply with the material terms of this Agreement; access will be restored once the non-compliance has been cured. Payment obligations will continue through any such suspension.
3. Use of Service and Licenses.
3.1 License. Subject to the terms and conditions of this Agreement, Mondee grants to Customer a non-sublicensable, non-transferable (except as expressly set forth in Section 13.8 below), non-exclusive limited license to access and use the Platform during the Subscription Period. Customer shall use the Platform and any documentation or other information related thereto that is received from Mondee or its representatives for Customer’s internal business purposes, for Users’ Leisure Travel bookings, and for no other purpose; Users may use the Platform for the above-mentioned business purpose and to book Leisure Travel. Customer acknowledges and agrees that the Service may incorporate functions that will inhibit Customer from exceeding the scope of this license.
3.2. No Implied License. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted, and Mondee (and its licensors) shall retain all right, title and interest in and to the Platform (including all intellectual property and proprietary rights embodied therein). Customer shall not take any action inconsistent with such rights.
3.3. Restrictions. Customer shall not: (a) use the Service, any documentation or any of Mondee ‘s Confidential Information (as defined in Section 6 below) provided hereunder to create any software, documentation or service that is similar to the Service or any documentation provided in connection therewith, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Service, or the Confidential Information therein (except and only to the extent that these restrictions are expressly prohibited by applicable law), or otherwise circumvent any technological measure that controls access to the Service, (c) encumber, sublicense, transfer, rent, lease, time-share or use the Service in any service bureau arrangement or otherwise for the benefit of any third party (except as set forth in Section 3.1), (d) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control laws or regulations of the United States or any other relevant jurisdiction, (e) disclose any performance or benchmarking information with respect to the Service to any third party, including without limitation licensors of any services that compete with or provide similar functionality to the Service, (f) reproduce, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify the Service or any portion thereof, or (g) permit any third party to engage in any of the foregoing proscribed acts.
3.4. Trademarks. Customer shall not alter, obscure or remove any printed or on-screen trademark, patent legend or other proprietary or legal notice in the Service. Customer grants to Mondee a non-sublicensable, non-transferable, non-exclusive limited license to use, reproduce, distribute, and display Customer’s trademarks, logos, and service marks (collectively, “Marks”) solely as required for the performance of the Service for Customer and as otherwise specified in this Agreement, including displaying on Customer’s instance of the Platform.
3.5. Passwords. Customer agrees to immediately notify Mondee of any unauthorized use of the Service or any other breach of security known to Customer.
3.6 Hosting. During the Term, Mondee will (itself or through use of a third party service provider operating on its behalf) arrange for the hosting, operation, and maintenance of the Platform to provide Customer with access to the Service. The cost of hosting services is included in the Subscription Fees as set forth on the Order Form.
4. Booking Services.
4.1 Booking. Through the Platform, Mondee advertises, markets, promotes, offers and sells various travel related products on behalf of numerous transport, accommodation and entertainment service providers, including, but not limited to airlines, hotels, car rental companies, vacation rentals, ticket & attraction providers, and cruise line operators (each, a “Travel Service Provider”). Mondee does not own, operate, manage or control these independent Travel Service Providers and is not liable for their acts or omissions. By using the Platform, Users enter into a binding contractual relationship with Travel Service Provider(s) when making a reservation. Once a reservation has been made, Mondee acts as solely an intermediary between User and the Travel Service Provider(s); Mondee will transmit the details of User’s reservation to the applicable Travel Service Provider and send User an email confirmation detailing the reservation on behalf of the Travel Service Provider. All bookings are subject to the terms & conditions, and limitations of liability imposed by the Travel Service Provider(s) some of which exclude liability in respect of death, personal injury, delay and loss or damage to baggage. If for any reason, any Travel Service Provider is unable to provide the services for which a User has contracted, the User and Customer’s remedy lies against the Travel Service Provider, and not against Mondee; Customer and its Users understand that their respective legal recourse is against the specific Travel Service Provider and not Mondee.
The offerings disclosed on the Platform are provided by Travel Service Providers; Travel Service Providers are responsible for updating all rates, prices, fees, availability, travel policies, terms & conditions, and other information displayed through the Platform. Mondee does not verify whether this information is accurate or complete and will not be held responsible for any inaccurate, misleading or false information provided by Travel Service Provider(s). Mondee does not warrant or guarantee the accuracy or completeness of the information provided on the Platform. Under no circumstances will Mondee be liable for any loss or direct, indirect, incidental, special or consequential damages caused by reliance on this information. The Platform does not recommend or endorse the quality, service level, type or description of any Travel Service Provider or its offerings, unless we specifically state otherwise.
4.1.1 Booking Limitations. Users may only use the Platform to make legitimate reservations or purchases and shall not use the Platform for any other purposes, including without limitation, to provide travel agency services, to make any false or fraudulent reservation(s) or any reservation in anticipation of demand. Users will not make reservations in the name of a fictitious person. Users will not use any device, software or routine that would interfere or be reasonably expected to interfere with the normal operation of the Platform. Users will not take any action that imposes a burden or load on our infrastructure that Mondee deems in its sole discretion to be unreasonable or disproportionate to the benefits we obtain from such User’s use of the Platform.
4.1.2 Price Match Guarantee. If another online booking tool beats our listed price, Mondee matches the price and gives $5 more off (the “Price Match Guarantee”) per the rules below:
The Price Match Guarantee offer is applicable only if the cheaper airfare matches exactly each and every element present in itinerary booked with us, which includes exact date and time of travel, destination name, name of the airline, class of service, specific carrier or provider (including same class of service and refund policy), fare, and other details are the same as the itinerary User booked with us and still available for booking online. Mondee’s Price Match Guarantee offer holds good for the similar product available through another authentic website only. Users may not be eligible for refund claim if bookings are done through other websites where the carrier booking details are unknown until after purchase. Additionally, Users must fulfill all the criteria as mentioned by the lower price offer (if any), including, without limitation, residency, regional and age-related requirements. The interpretation given by Mondee to these rules is final and binding.
4.2 Baggage Fees and Taxes. Baggage allowance and restrictions will apply on all airlines. These will vary, and travelers should contact the applicable airline for the specific restrictions. Some airlines may charge fees for checked baggage. Please note that additional airport fees and government taxes may not be included in ticket prices, these are collected at destination.
4.3 Travel & Expense – Fees and Payment. Mondee has either permitted the User or Customer to pay for bookings and reservations by credit card in accordance with the Order Form. In addition to the Subscription Fees agreed to by the Customer and Mondee, the Customer and User agree that Mondee may charge additional fees including: cancellation, change, exchange, mileage, after hours, and card service fees. The User acknowledges that by making the payment for the booking that the User has accepted the price quoted by Mondee.
4.4 Booking Conditions. Prices quoted by Mondee via the Services are subject to change and will not be confirmed until booking is ticketed by Mondee and a confirmation email is sent. Mondee always tries to maximize the savings on airfares it sells on behalf of airlines.
4.5 Passport and Visas. All individuals travelling internationally must be in possession of a valid passport. Please check that each traveler’s passport is valid for 6 months or longer than the intended travel time. It is each traveler’s responsibility to ensure that they have valid travel documentation, including but not limited to passports and visas, which meet the requirements of immigration and other government authorities at every departure point and destination. Each traveler is responsible for confirming with the United States Department of State or representative government agency of the country to which such traveler is traveling to confirm the requirements for visas and/or other requirements for admission to the destination. A government issued ID is required for travel within the USA, however depending on the State of departure or arrival, a passport may be required instead of a driver’s license.
4.6 Refunds & Cancellation. Mondee charges $35.00 per airline ticket for exchanges (outside of 24 hours from the time of booking); this is in addition to the airlines’ exchange fees (the airline rules will be quoted to the customer before initiating an exchange). Mondee will void a ticket canceled within 24 hours from time of booking, but will retain the original ticketing fee. Any amendment or any changes to a reservation (date change, rerouting) constitutes a cancellation. If, after a booking has been confirmed, a User wishes to cancel or change their booking, Mondee will make a commercially reasonable effort to satisfy the User’s request provided written notice is received by Mondee. A cancellation will take effect from the date that the written notice is received by Mondee. The applicable Travel Service Provider’s policy will apply with regard to refunds and cancellations of bookings and reservations. Carefully read such policies prior to booking or making any reservations.
In all cases, where a User’s booking involves a special fee or charges levied by an airline, hotel operator or any other Travel Services Provider, the applicable User will be responsible for all cancellation charges levied by the airline, hotel operator or any other Travel Service Providers. Cancellations incur charges imposed by the airline or tour operator which can be up to 100% of the total fare purchased. Please note that airline/wholesaler refunds can take up to two (2) billing cycles and not all taxes are refundable. Airline tickets are non-refundable once travel has commenced. Where Mondee incurs any liability for a cancellation fee or charge for any cancelled booking, Customer agrees to reimburse Mondee for the amount of that fee or charged. Refunds from suppliers will be made only after Mondee has received the money from those sources (supplier rules and restrictions will apply).
4.7 Credit Card Transactions. If Mondee incurs any costs, including attorneys’ fees, to recover any payments charged back by a credit card company, Customer agrees that it will be liable for these costs. If the credit card is declined, Customer guarantees that it will settle any amounts owing to Mondee immediately.
4.8 Travel Protections. For each traveler’s protection, Mondee encourages the purchase of trip cancellation and travel accident protection. No representation or description of the protection made by Mondee to a User or traveler constitutes a binding assurance or promise about the protection. Mondee is not an insurance company and has no responsibility for the submission, payment or adjustment of any insurance claims. Any claims that may fall under the relevant travel protection policy must be submitted to the third-party insurance company identified in the policy.
4.9 Health and Special Requirements. It is each traveler’s responsibility to ensure they are aware of any health requirements and restrictions for travel destinations and to ensure that traveler(s) qualify for travel and carry all necessary vaccination documentation.
5. Data & Security.
5.1. License to Customer Data. Customer grants Mondee a worldwide, nonexclusive, royalty free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Customer Data on the Platform and in connection with providing the Services to Customer; this includes the right to disclose Customer Data to third party travel providers when necessary to complete a User’s travel booking.
5.2. Data Management. Customer possesses and retains all right, title and interest to Customer Data, and Mondee’s use and possession thereof is solely on Customer’s behalf. Unless it receives Customer’s prior written consent, Mondee shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the Services. Upon termination of this Agreement, Mondee will purge all Customer Data.
5.3. Data Security. Mondee shall exercise commercially reasonable efforts to prevent unauthorized exposure or disclosure of Customer Data. In addition, and without limiting the generality of the preceding sentence, Mondee shall maintain, implement and comply with a written information security policy that requires commercially reasonable policies and procedures to ensure compliance with this Section 5.3.
5.4. Processing of Customer Data governed by EU laws. Customer acknowledges and agrees that it may be necessary for Customer to provide access or transfer to Mondee in the United States Personal Data governed by the local laws implementing the European Union Data Privacy Directive (95/46/EC) and the General Data Protection Regulation (“EU Privacy Laws”) in order for the data to be included in the Service and for the Customer to receive the services. To the extent that Mondee shall process, as such term is understood under the EU Privacy Laws, any Personal Data governed by EU Privacy Laws, the parties agree that (a) Mondee shall be the “data processor” and the Customer the “data controller”, as such terms are understood under the EU Privacy Laws, and (b) Customer shall be solely responsible for obtaining legally compliant consents permitting the processing by Mondee of the Customer Data in the United States; alternatively, the parties will enter into appropriate controller-to-processor Standard Contractual Clauses approved by the European Commission.
5.4.1. Subprocessors of Personal Data governed by EU laws. Customer acknowledges and agrees that Mondee may use contracted processors (“Subprocessors”) engaged by Mondee to process Personal Data. Mondee shall be responsible for the acts and omissions of Subprocessors to the same extent it would be responsible if Mondee was performing the services of each Subprocessor directly under the terms of this Agreement. The names and locations of all current Subprocessors used for the processing of personal data within Customer Data (as defined by EU Privacy laws) under this Agreement is available to Customer upon written request to Mondee.
6. Confidentiality. Each party agrees that all code, inventions, algorithms, know-how and ideas and all other business, personally-identifiable information and technical information obtained from the other party is the confidential property of the disclosing party (“Confidential Information” of the disclosing party). Except as expressly set forth herein (including, for Mondee, as required to provide the Services), during the Subscription Period and after any termination hereof, the receiving party will hold in confidence and not use or disclose any Confidential Information of the disclosing party and shall similarly bind its employees and independent contractors in writing. Confidential Information shall not include information the receiving party can document: (a) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents, (b) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information, (c) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party, or (d) was independently developed by employees or consultants of the receiving party without use of the Confidential Information. If required by law, the receiving party may disclose Confidential Information of the disclosing party solely to the extent of such requirement, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor. The terms and conditions of this Agreement are the Confidential Information of both parties, provided that each party may disclose the terms and conditions of this Agreement on a confidential basis to its advisors, legal counsel, prospective investors and/or acquirers. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to the disclosing party or destroyed, and the receiving party will make no further use of such materials; notwithstanding the foregoing, all personally-identifiable information will be destroyed. Money damages will not be an adequate remedy if this Section 6 is breached and, therefore, either party may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety. Notwithstanding anything to the contrary, Mondee may collect data with respect to and report on the aggregate response rate and other aggregate, anonymized measures of the Platform’s performance and Customer’s usage of the Platform, provided that Mondee will not disclose any information or data that identifies, or could reasonably be used to identify, Customer or any individual.
7. Payments.
7.1 Fees. Customer shall pay to Mondee all Subscription Fees, in U.S. dollars in accordance with the terms set forth on the Order Form. Past due amounts shall bear a late payment charge, until received by Mondee, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. Except as expressly set forth in this Agreement, all amounts paid hereunder are non-refundable.
7.2 Taxes. Subscription Fees are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments, other than taxes based on Mondee’s income. Mondee will invoice Customer for any taxes Mondee has an obligation to collect unless Customer provides a valid and applicable tax exemption certificate authorized by the appropriate taxing authority.
8. Indemnification. Mondee will defend, indemnify and hold harmless Customer and its corporate Affiliates, directors, officers, employees, and agents (collectively, “Customer Indemnitees”), from and against any un-Affiliated third party claim, demand or action (collectively, “Claims”), and all damages, settlement amounts, penalties, costs and expenses, in each case that are paid or payable to un-Affiliated third parties resulting from such Claims, to the extent such Claim alleges that the Platform, when used by Customer in compliance with this Agreement, infringes, violates or misappropriates any intellectual property or proprietary right of any third party, provided that Mondee will not be obligated under this Section 8 to the extent any such infringement or violation arises from use of the Platform (a) in combination with technology or services not provided by Mondee, or (b) in violation of the license restrictions or scope of use permitted in this Agreement. Mondee’s obligations pursuant to this Section 8 are expressly conditioned on Customer Indemnitees providing Mondee with (y) prompt written notice of all Claims (provided that Mondee will only be relieved of its obligations pursuant to this Section 8 to the extent it is prejudiced by Customer Indemnitees’ failure to provide such notice), and (z) sole control over, and reasonable cooperation with, the defense and/or settlement of all Claims. Mondee will not agree to any settlement hereunder that admits any wrongdoing by Customer Indemnitees or otherwise imposes any material obligation on Customer Indemnitees (not entirely covered by an indemnification obligation hereunder) without Customer Indemnitees’ prior written consent, not to be unreasonably withheld, conditioned, or delayed.
9. Termination.
9.1. Termination. This Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days after receiving written notice of such breach from the other party (10 days in the case of nonpayment by Customer), or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
9.2. Effects of Termination. Upon termination or expiration of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, payment obligations) shall survive and (b) the provisions of Sections 3.2, 3.3, 4.3, 4.6, 4.7, 6, 8, 9.2, and 10 through 13, shall survive. If the Agreement is terminated early by Customer pursuant to Section 9.1(a) above, Mondee will refund to Customer a pro-rated amount of any pre-paid Subscription Fees for the remaining portion of the then-current Subscription Period.
10. Ownership. Title to and ownership of the Platform shall be and at all times remain in Mondee. No ownership of the Platform or either party’s Confidential Information is transferred by this Agreement. Any feedback, developments, recommendations or modifications made during the Subscription Period by Mondee or Customer relating to the Service, whether or not influenced or suggested by Customer, are the sole property of Mondee, and Customer hereby makes all assignments necessary to accomplish the foregoing.
11. Warranty; Disclaimers.
11.1. Each party represents and warrants that: (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder, (b) this Agreement is legally binding upon it and enforceable in accordance with its terms, and (c) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
11.2. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. MONDEE DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, MONDEE HEREBY EXPRESSLY EXCLUDES AND DISCLAIMS (FOR ITSELF AND ITS LICENSORS AND SUPPLIERS) ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY OR FITNESS FOR ANY PARTICULAR PURPOSE.
11.3 ALL INFORMATION, PRICES, AND AVAILABILITY ARE SUBJECT TO CHANGE WITHOUT PRIOR NOTICE. MONDEE SHALL NOT BE RESPONSIBLE FOR BREACH OF CONTRACT OF ANY INTENTIONAL OR CARELESS ACTIONS OR OMISSIONS ON THE PART OF SUCH TRAVEL SERVICE PROVIDER, WHICH RESULT IN ANY LOSS, DAMAGE, DELAY, OR INJURY TO USER OR USER’S TRAVELING COMPANIONS OR GROUP MEMBERS. UNLESS THE TERM ‘GUARANTEED’ IS SPECIFICALLY STATED IN WRITING ON A TRAVELER’S TICKET(S), INVOICE, OR RESERVATION ITINERARY, MONDEE DOES NOT GUARANTEE ANY OF SUCH TRAVEL SERVICE PROVIDER’S RATES, BOOKINGS, RESERVATIONS, CONNECTIONS, SCHEDULING, OR HANDLING OF PERSONAL EFFECTS AND LUGGAGE. MONDEE SHALL NOT BE RESPONSIBLE FOR ANY INJURIES, DAMAGES, OR LOSSES CAUSED TO ANY TRAVELER IN CONNECTION WITH TERRORIST ACTIVITIES, SOCIAL OR LABOR UNREST, MECHANICAL OR CONSTRUCTION FAILURES OR DIFFICULTIES, DISEASES, LOCAL LAWS, CLIMATIC CONDITIONS, ABNORMAL CONDITIONS OR DEVELOPMENTS, OR ANY OTHER ACTIONS, OMISSIONS, OR CONDITIONS OUTSIDE MONDEE’S CONTROL. THE TRAVELER ASSUMES COMPLETE AND FULL RESPONSIBILITY FOR, AND HEREBY RELEASES THE AGENT FROM, ANY DUTY OF CHECKING AND VERIFYING ANY AND ALL PASSPORT, VISA, VACCINATION, OR ANY OTHER ENTRY REQUIREMENTS FOR EACH DESTINATION, AND ALL SAFETY AND SECURITY CONDITIONS OF SUCH DESTINATIONS, DURING THE LENGTH OF THE PROPOSED TRAVEL. FOR INFORMATION CONCERNING POSSIBLE DANGERS AT INTERNATIONAL DESTINATIONS, CONTACT THE TRAVEL ADVISORY SECTION OF THE U.S. STATE DEPARTMENT AT 202.647.5225. FOR MEDICAL INFORMATION, CALL THE US CENTER FOR DISEASE AT 404.332.4559 OR VISIT THEIR WEBSITE, www.cdc.gov. BY EMBARKING UPON THEIR TRAVEL, THE TRAVELER VOLUNTARILY ASSUMES ALL RISKS INVOLVED IN SUCH TRAVEL, WHETHER EXPECTED OR UNEXPECTED. THE TRAVELER IS HEREBY WARNED OF THE ABOVE RISKS, AS WELL AS POSSIBLE TRAVEL INDUSTRY BANKRUPTCIES AND MEDICAL AND CLIMATIC DISRUPTIONS, AND IS ADVISED TO OBTAIN APPROPRIATE INSURANCE COVERAGE AGAINST THEM, WHICH IS AVAILABLE AT AN EXTRA COST THROUGH MONDEE. THE TRAVELER’S RETENTION OF TICKETS, RESERVATIONS, TOUR DOCUMENTS, CRUISE DOCUMENTS, TRAVEL AGENCY INVOICE OR BOOKINGS AFTER ISSUANCE SHALL CONSTITUTE A CONSENT TO THE ABOVE AND AN AGREEMENT ON THE TRAVELER’S PART TO CONVEY THE CONTENTS HERETO TO TRAVELER’S TRAVEL COMPANIONS OR GROUP TRAVEL MEMBERS.
12. Limitations of Liability
EXCEPT IN CONNECTION WITH CUSTOMER’S BREACH OF THE LICENSE RESTRICTIONS SET FORTH IN SECTION 3.3 ABOVE, NEITHER CUSTOMER OR MONDEE WILL BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY WITH RESPECT TO THE SERVICE OR ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES AND/OR LOSS OF PROFITS TO CUSTOMER OR ANY THIRD PARTIES, LOSS OR INACCURACY OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR (B) FOR ANY DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF: (i) THE SUBSCRIPTION FEES PAID TO MONDEE BY CUSTOMER HEREUNDER DURING THE PREVIOUS TWELVE (12) MONTHS PRIOR TO THE CLAIM ARISING, OR (ii) THE AMOUNT PAID FOR THE TRIP OR BOOKING THAT IS THE SUBJECT OF THE ALLEGED LIABILITY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MONDEE SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
13. Miscellaneous.
13.1. Governing Law. This Agreement shall be governed by and construed in accordance with, the laws of the State of New York without regard to conflicts of law provisions thereof.
13.2. Marketing and Publicity. Subject to Customer’s prior written consent in each case, (a) Customer shall participate in marketing and public relations campaigns as reasonably requested by Mondee, and shall collaborate with Mondee on the issuance of press releases by Mondee related to this Agreement, (b) for a period of one (1) year following the Subscription Period, Customer agrees to cooperate with Mondee to serve as a reference for the Service, and to speak with potential Mondee customers as reasonably requested by Mondee, and (c) Customer hereby grants Mondee a non-exclusive license to use, publish, display and reproduce its Marks for the purpose of its marketing and publicity efforts.
13.3. Waiver. No provision of right, power or privilege under this Agreement shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of any party, its agents or employees, but only by an instrument in writing signed by an authorized representative of each party.
13.4. Severability. If any provision of this Agreement is held to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
13.5. Entire Agreement. This Agreement, including any referenced attachments and/or incorporated documents, shall constitute the entire understanding between the parties regarding the subject matter described herein and supersedes any previous communications, representations or agreements whether oral or written regarding such subject matter. In the event of any direct conflict between the documents that make up this Agreement, this document shall control.
13.6. Relationship of the Parties. The parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and nothing contained herein shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
13.7. Attorneys’ Fees. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees.
13.8. Assignment. Neither party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, and any such attempted assignment shall be void. Notwithstanding the foregoing, each party may assign or otherwise transfer this Agreement to a successor in connection with the sale of all or substantially all of its business or assets to which this Agreement relates. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
13.9. Notices. Except as otherwise provided herein, all notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
13.10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument, and a facsimile transmission or electronic delivery of a manual signature (e.g., .pdf) shall be deemed to be an original signature.
13.11. Acknowledgement. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.